Sheriff of the High Court, Giyani v Makhubele - Appeal (HCAA15/2023) [2023] ZALMPPHC 109 (26 October 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

26/10/23

Case no :HCAA15/2023

In the matter between: THE SHERIFF OF THE HIGH COURT, GIYANI APPELLANT And RENKY THULANI MAKHUBELE RESPONDENT

JUDGMENT

MULLER ADJP:

[1] This is an automatic appeal based on the provisions of section 18(4) of the Superior Courts Act.[1] (I will refer to the parties as they were referred to in the Court a quo for ease of reference). On 8 August 2023 the Thohoyandou High Court (per Tshidada J) granted two orders against the respondent in an application to put an order into operation which is the subject of an application for leave to appeal to the Supreme Court of Appeal. The first order states:

[2] "THAT all four point (sic) in limine argued by the Respondent are dismissed with costs."

The second order reads:

"1.

THAT this Court rules that this application is urgent and warrants to be heard in terms of Rule 6(12) of the uniform Rules of the Court.

2.

THAT the Respondent should release and pay the funds realized from an auction conducted on 6 July 2023 on behalf of the Applicant herein, into the Applicant's Attorneys Trust Account within 48 hours of service of this order.

3.

THAT the applicant's attorney should create an interest-bearing account for the investment of the amount as per this court's Judgment and order of 26 July 2023.

4.

THAT the applicant's attorney is ordered not to dissipate, dispose or pay the above-stated funds to either of the parties unless ordered to do so by the court.

5.

THAT the applicants Attorney furnish the Respondent's Attorney with proof of investment of the funds referred to herein within five (5) working days from the date of creation or opening of the said investment account.

6.

THAT the respondent should pay the costs of this application."[2]

[3] The respondent delivered its notice of appeal in respect of these orders in terms of section 18(4)(ii) of the Superior Court Act 10 of 2013 on 11 August 2023.

[4] The original order which the applicant sought to put into operation was granted by the learned Judge on 26 July 2023. That order reads:

THAT the Respondent should forthwith release and pay into Ntsako Phyllis Mbhiza Attorneys Trust Account the withheld proceeds in the sum of R219 541.41, realized from a sale in execution at a public auction held on 06/07/2023 as per Writ of Execution under Case No 1285/2021 granted by the Taxing Master of this Honourable Court, within 48 hours of service of this order.

THAT Respondent storage fees/ costs imposed over Applicant's judgment debt is declared unlawful and invalid.

THAT Respondent's conduct in failing to carry out its constitutional mandate in terms of the Applicant's Warrant of Execution dated 27/07/2022 is declared unlawful.

THAT respondent should pay the costs of this application on High Court scale, such costs to include the costs of two counsel."[3]

[5] The respondent delivered a notice of application for leave to appeal on 27 July 2023 against July order. It is important to note that we were informed by both counsel that it is common cause that there is presently a pending application (petition) for leave to appeal to the Supreme Court of Appeal.

[6] On 8 August 2023 the applicant, on an urgent basis, applied pursuant to the provisions of section 18(3) of the Superior Courts Act to direct that the July order is not suspended pending leave to appeal to the High Court or the Supreme

Court of Appeal.[4] It is important to note what relief was claimed in the notice of motion and to contrast that relief with the relief that was actually granted in the application. The applicant claimed in terms of the notice of motion:

"1. That this application be dealt with as one of urgency in terms of Rule 6(12) and that the Applicant's failure to comply with the Uniform Rules of Court and/or prescribed number of days of service of Court processes and Practice Manual and/or directive of the above Honourable Court, relating to service of urgent application proceedings be condoned; if applicable

2. An order directing, as contemplated in section 18(3) of the Superior Courts Act 10 of 2013, that the court order of Tshidada J, granted on 26 July 2023, under case number; 1303/2023, in the High Court Thohoyandou, is not suspended pending the Respondent's impending Application of Leave to Appeal to the above Honourable Court or Supreme Court of Appeal or any other subsequent Appeal.

3. The respondent be ordered to pay costs of this application on Attorney and Client scale, including costs consequent upon employment of two counsel.

4. Granting the Applicant such further and/or alternative relief."

[7] The respondent, on the one hand, essentially attacked the order on appeal on the limited basis that the order granted was not prayed for in the notice of motion and that the order granted could not competently be granted in terms of prayer 4 of the notice of motion and, on the other hand that no exceptional circumstances were proved to warrant on order in the form it was granted.

[8] When counsel was asked if the respondent was not ambushed by the order made, he replied that the Court a quo relied on the provisions of section 173 of the Constitution which entitled the court a quo to shape the order in the manner that it had done in the interests of justice and referred us to Ntlemeza v Helen Suzman Foundation and Another.[5] In Ntlemeza the court referred to the common law position set out in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd[6] and pointed out that courts had a wide general discretion in terms of the common law to order that the judgment be carried into effect. The Court has the inherent power to control its own judgments and in the light of the circumstances of each case to say whether or not execution should be suspended pending an application for leave to appeal.[7]

[9] Counsel for the applicant argued that the August order varied the July order to a certain extent. I agree. It has the characteristics of an anti-dissipation order. Not only has it varied the July order, but the August order is furthermore not an order contemplated by section 18(1) of the Superior Court Act.

[10] Counsel argued that on a proper interpretation of the August order, no automatic right of appeal came into existence in terms of section 18(4)(ii). The contention was that the respondent should have applied for leave to appeal simply because the order makes no reference to the suspension or putting into operation of the July order. The contention cannot be accepted.

[11] The power granted to the court by section 18, the purpose of which is to maintain the common law position that an order appealed against is suspended, must be seen against the general inherent power of courts to regulate their own process which is now enshrined in section 173 of the Constitution.

[12] Section 18(1) (2) and (3) provides that:

(1) "Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or the appeal.

(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application for leave to appeal.

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if a party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders."

[13] I agree with the statement in Myeni v Organisation Undoing Tax Abuse NPC and Another[8] that:

"Section 18(1) provides that "... unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an appeal (sic) for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal." The quoted passage denotes that the existence of an application for leave to appeal or an ongoing appeal process is a prerequisite for an application in terms of section 18 to arise. Put differently, the wording of section 18(1) signifies that in the absence of an application for leave to appeal or an appeal, the judgment and order in question are not suspended and are in fact deemed final. The fact that the noting of an appeal suspends the execution of a judgment against logically means that in the absence of an appeal, the judgment is not suspended and is in fact deemed executable and thus final. Given that section 18 exists to regulate the position when an application for leave to appeal or an appeal against a judgment is pending, it stands to reason that where no such application for leave to appeal or appeal is pending, the purpose of section 18 ceases to exist and as such, the judgment and order are deemed final and executable for all intents and purposes."

[14] Subsection (4)(ii) makes provision for an automatic right of appeal and an expedited hearing of the appeal against the finding that the order (which is the subject of an application for leave to appeal or an appeal) may be carried into effect pending the outcome of the application for leave to appeal or an appeal.

[15] As explained above, the purpose of the section 18(3) application before Tshidada J, was to obtain an order that the judgment (which was suspended by the notice of application for leave to appeal) be carried into effect, as prayed for in prayer 2 of the notice of motion. But that is not what Tshidada J has ordered. Instead of making an order as prayed for in the notice of motion Tshidada J granted an order that states that: "the Respondent should release and pay the funds realized from an auction on 6 July 2023 on behalf of the Applicant herein, into the Applicant's Attorneys Trust Account within 48 hours of service of this order."

[16] The learned Judge also added paragraph 3 and 4 to the order that an interest­ bearing account be opened where the funds should be deposited for safekeeping until ordered otherwise. That is in my view not permissible when the court is approached for an order in terms of section 18.

[17] Regrettably, we were not favoured with reasons for the August order. Counsel for the respondent pointed out in the heads of argument and during argument that the learned Judge intimated that he is entitled to rely on prayer 4 in the notice of motion for further or alternative relief as the basis for the order that he granted. It was emphasised by Harms DP in National Stadium South Africa (Pty) Ltd and Others v Firstrand Bank Ltd[9] that:

"The Court also relied on the prayer for alternative relief. It erred because this superfluous prayer does not entitle a court to grant relief that is inconsistent with the factual statements and the terms of the express claim... "[10]

[18] The learned Judge erred if the August order granted was premised on prayer 4 for further or alternative relief. The July order is a final order. The judge, moreover, was functus officio and was restricted by the provisions of section 18, and by the terms of prayer 2 contained in the notice of motion, to determine the narrow question whether the July order should be put into effect or not. It was not open to the learned Judge to grant the August order in the terms set out in the order.

[19] Section 18(1) and (3) requires that the applicant must show that exceptional circumstances exist for the order to be put into operation and must also show that she will suffer irreparable harm if the order is not put into operation and that the respondent will not suffer irreparable harm if it is put into operation. The applicant has set out the exceptional circumstances in the founding affidavit as being the failure of the respondent to uphold its obligations derived from the relevant legislation, Constitution, Rule 45(6) and the warrant of execution; the unmeritorious application for leave to appeal; the attempt to deny the applicant the fruits from the July order; that the respondent appropriated the funds realized from the public auction instead of issuing summons to recover the storage fees or costs.

[20] I am by no means convinced that the allegations made by the applicant proved to be exceptional circumstances. The respondent pointed out in the answering affidavit that the respondent is obliged in terms of section 22 of the Sheriff's Act[11] to open a trust account whilst section 26 and 27 established a fidelity fund for Sheriff's which provides security for the applicant in respect of the proceeds received by the respondent. The respondent (as an officer of the court) tendered an undertaking to retain the proceeds in the trust account pending the finalization of their dispute. There cannot be any prejudice for the applicant if the money is safeguarded as tendered pending the application for leave to appeal or an appeal. There is prejudice to the respondent if the proceeds were to be paid to the applicant and is utilised by her. (It seems as if the learned Judge realized that if the proceeds were to be paid to the applicant as required by the July order that the respondent will be prejudiced and directed in the August order that the proceeds be paid into the trust account of the applicant's attorney to be retained by the attorney and be invested until ordered otherwise). The applicant, in my respectful opinion has failed to make out any case that the respondent will not be prejudiced if the order is to be put into operation.

[21] In the result, the appeal is to be upheld.

ORDER

1. The appeal is upheld with costs.

2. The order of Tshidada J dated 8 August 2023 is set aside and is replaced with the following order:

3. "The application is dismissed with costs."

GC MULLER

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH

COURT, LIMPOPO DIVISION: POLOKWANE

I concur,

MV SEMENYA

ACTING JUDGE PRESIDENT OF THE HIGH

COURT, LIMPOPO DIVISION: POLOKWANE

K PILLAY

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO DIVISION: POLOKWANE

APPEARANCES 1. For the Appellant: JP Morton 2. For the Respondent: TK Maluleke 3. Date of the hearing: 10 October 2023 4. Date judgment delivered: 26 October 2023

[1] Act 10 of 2013.

[2] Hereinafter called "the August order''.

[3] Hereinafter called "the July order".

• [4] It is assumed for purpose of this appeal that the application for leave to appeal was refused subsequent to the application of 8 August 2023.

[5] 201 7 (5) SA 402 (SCA) par 30.

[6] 1977 (3) SA 534 (A) at 544H-545G.

[7] Copthall Stores Ltd v Willoughby's Consolidated Co Ltd (1) 1 913 AD 305, 308; Fismer v Thornton 1929 AD 17, 19.

[8] Case 15996/2017 GDP (15 February 2021) par18.

[9] 201 1 (2) SA 157 (SCA) par 48.

[10] Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T); Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C).

[11] Act 90 of 1996.