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Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NO: UM28/2021

In the matter between:

DINKEBOGILE TRANSPORT SERVICE                                  Applicant

And

MOKOENA MANTOKI EMMAH                                                First Respondent

THERON JORDAAN AND SMIT                                                 Second Respondent

DEPARTMENT OF JUSTICE AND

CORRECTIONAL SERVICES                                                      Third Respondent

REGISTRAR: KLERKSDORP                                                      Fourth Respondent

MAGISTRATE COURT

SHERIFF OF COURT: KLERKSDORP                                       Fifth Respondent

JUDGMENT

MAKOTI AJ

INTRODUCTION

[1]     The applicant in this matter seeks urgent relief to stay the execution of a judgment debt, pending finalisation of an appeal against a judgment that was delivered by Magistrate Boonzaaier of the Regional Court, Klerksdorp. Also, the applicant seeks an additional order setting aside the warrant of execution against its property and a further order declaring the attachment of its property unlawful. In what has become common in litigation matters, the applicant seeks a punitive cost order against the attorneys representing the first respondent.

[2]     Only the first and second respondents are opposing the application and contend that the application lacks merit and should be dismissed with costs. The respondents have also raised a point in limine relating to urgency, which must be dealt with first before the merits of the application can be considered. If urgency is not granted, the matter will not be considered further.

[3]     Additionally, the respondents have raised a point in limine in which they contend that this Court does not have the jurisdiction to adjudicate this application. They assert that this application should have been made in the Regional Court. The point of lack of jurisdiction is quite convenient for the respondents, who have issued the warrant of execution while ignoring a similar order that was issued by the Regional Court. As will be seen below some of the authorities used in this matter have dealt with cases of the same nature.

URGENCY

[4]     Rule 6(12) of the Uniform Rules of Court deals with urgent applications and requires that a party asking the court to adjudicate a case on urgent basis must: (a) set out the circumstances which it contends renders the matter urgent; and (b) explain why it avers that it will not be afforded substantial redress if the case was to be heard on a future date.[1]

[5]     Where an application is brought on the basis of urgency, the Rules permit a court to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’.[2] What lies at the heart of the considerations for urgency is the question of absence of substantial redress in an application in due course. If that requirement is satisfied, Rule 6(12) can be relied upon to come to the assistance of a litigant because if it were to wait for the normal course, it will not obtain substantial redress. The converse is that, where an application that lacks urgency, it is considered as not properly on the court’s roll, and the court may decline to hear it.[3]

[6]   The trigger for this application is the sheriff’s attachment of the applicant’s property on 11 February 2021. This prompted the applicant, through its legal representatives to address an email to the first respondent’s attorneys containing, amongst others, the following:

“We have just been instructed to demand from you, as we hereby do, that you provide us with a written undertaken asserting that you shall desist from executing the property or properties of our client, failing which we advise that we hold instructions to approach the High Court, North West division for a relief which we shall also pray for costs de bonis propriis against your firm.”

[7]     The applicant’s fell on barren ground in that on 16 February 2021, and again on 23 February 2021, the first respondent’s legal representatives sent emails to the applicant’s attorneys in which the refused to give an undertaking not to proceed with the sale in execution. In the Constitutional Court case of South African Informal Traders Forum and Others v City of Johannesburg[4] Moseneke J stated that:

“[37]    Another of the City’s contentions was that the urgency the applicants relied on was self-created and ought not to be entertained.  Even if it is accepted that urgency arose as early as October 2013, it was only prudent and salutary that the applicants first sought to engage the City before they rushed off to Court. That engagement, as mentioned above, produced the agreement of 2 November 2013. (Notes omitted)

[38]     I find nothing dilatory in the efforts of the applicants to engage the City and persuade it to restore them to their trading positions in the inner city.  Their return to their trading stalls remained urgent throughout the engagements or negotiations attempted before an urgent application was launched. Even by the time they approached this Court, their claims were self-evidently urgent and so we concluded.”

[8]     The applicant approached the matter sensibly and tried to avoid having this application. The second respondent, ostensibly on instructions from the first respondent, intends to proceed with the sale in execution. That alone renders the adjudication of this matter urgent, especially in light of the fact that the applicant stands to suffer what may be permanent loss of its property should the sale in execution be proceeded with. It seems to me that the authorities are ad idem that, where substantial redress cannot be attained if the matter is to be adjudicated on a future date, the courts are readily prepared to come to the assistance of an applicant.[5] Urgency has been satisfied.

MERITS OF APPLICATION

[9]     On 03 March 2017 the Regional Magistrate Court, Klerksdorp granted default judgement or order against the applicant for an incident that had occurred on 05 February 2012. The default judgement against the applicant was for damages in the amount of R272, 250 plus costs. The summons commencing action against the applicant was issued on 25 November 2015, some eight (8) months after the lapse of three years.

[10]   The applicant applied for rescission of the default judgement raising, inter alia, prescription as one of the defences to the claim by the first respondent. An order staying the execution of the default judgement was granted by the Regional Court pending finalisation of the rescission application. The rescission application was dismissed with costs in terms of the judgement by Regional Magistrate Boonzaaier dated 20 March 2020 some six days before the country was placed under level 5 lockdown due to the breakout of COVID-19 pandemic.

[11]   On 10 June 2020 the applicant noted an appeal against the entire judgement which dismissed the rescission application. It cannot be denied that the appeal was lodged outside of the twenty-days (20) as provided for by the Magistrate Court Rules, and that it was not accompanied by an application to condone its late filing. This Court is not seized with the appeal and may not deal with its merits, or the lack thereof.

[12]   The noting of the appeal by the applicant has the effect of restoring the status quo that preceded the judgement which dismissed the rescission application. It must be so, therefore, that even the order that stayed the execution of the default judgement remains in force pending the prosecution of the appeal. This is in line with the judgement of Libalele v Libalele and Another[6] in which it was held that:

“[19]    There is no rational basis or authority for interpreting the legal position differently in so far as the effect of noting an appeal against the decision of the Magistrates’ Courts is concerned.  The legal position has to be that the decision appealed against in the Magistrate’s Court remains suspended until the appeal is finalised.  Rule 50 (1) of the Uniform Rules and Rule 51 (9) of the Magistrate’s, Court Rules are, in any view, no basis for treating judgments of the Magistrates' Courts differently.  …  This is more so if one takes into account the single united court structure that is provided for in section 166 of the Constitution.  Any contrary interpretation would result in an undesirable consequence of creating confusion not only in the legal profession and the legal system but also to the members of the public in general who are directly affected by judicial pronouncements.” (Emphasis added)

[13]   The respondents’ contention was that the appeal was noted late and that it was not accompanied by an application for condonation of the late noting and, therefore, there can be no appeal on the mere basis that there is no application for condonation. This contention stands to be rejected out-rightly. It is not open for the respondent, neither this Court, to turn a blind eye to the appeal. Instead, it is up to the respondent to raise the applicant’s failure to apply for condonation as a defence or reason for the Court to dismiss the appeal.

[14]   Furthermore, the respondent contends that the appeal has lapsed in that that the applicant has failed to prosecute it within a period of 60 days. The sixty-day period and the lapsing of the appeal are provided for in Rule 50(1) of the Rules. Rule 51(9) of the Magistrates Court Rules, contains a similar provision and it provides thus:

“A party noting an appeal or a cross appeal shall prosecute the same within such time as may be prescribed by rule of the Court of appeal and, in default of such prosecution the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary.”

[15]   The facts do not support the contention that the appeal has lapsed. This is because the applicant did what it was required to have the appeal prosecuted, and did so on time by filing the requisite notice. In any case, in the case of Re Goodman[7] is an instance where the plaintiff in the Magistrate’s Court did not prosecute the appeal after noting it.  The defendant, in whose favour judgment had been granted, approached the High Court for an order dismissing the appeal.  Bressler J put the position as follows:

“There does not appear to be authority which would in the circumstances justify the dismissal asked for.  No case was in any event cited.  This is most unfortunate as it seems clear that the Magistrates’ Court cannot ignore the existence of the notice of appeal thus permitting appellant to defeat the consequences of the judgment against him.  This is of course a most undesirable state of affairs which might well enjoy legislative correction.” (Emphasis added)

[16]   The message that one gets is that a party contending that an appeal has lapsed is to approach Court for an order to that effect. Landsman J had occasion to deal with the question of the lapsing of an appeal that has been noted in the case of Nawa vs Marakala,[8] and said:

“I am satisfied that a single judge has by virtue of s 13(1)(a) of the Supreme Court Act 59 of 1959 the jurisdiction to entertain an application, such as this one, for a declaration that an appeal has lapsed.  It is salutary practice for a single judge, sitting in term time, to refer a matter concerning a procedural aspect of an appeal within his or her jurisdiction to a bench consisting of an appropriate number of judges where it necessitates a consideration of the prospects of success of an appeal.  Where the prospects of success of an appeal need not be traversed, it is permissible for a single judge to dispose of the matter.”

[17]   What is more concerning is the fact that the first and second respondents attended to the re-issuing of the writ of execution in total disregard to the fact that there is continuing litigation between the parties. Also, there was no thought given to fact that the Court below has stayed execution pending determination of the application for rescission of judgement.

[18]   Final determination of the application for rescission will occur when the Court of appeal delivers judgement on the matter. It is for that reason that the applicant has asked for punitive cost order against the second respondent de bonis propriis, which I dealt with below.

COSTS

[19]   Although the attachment of the applicant’s property should be criticised, there is no cogent reason advanced for the court to mulct the legal representatives with punitive costs.

[20]   The awarding of costs de bonis propriis was the subject of consideration by the Constitutional Court in SA Liquor Traders' Association and others v Chairperson, Gauteng Liquor Board and others[9] where it was held that:

“An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court's displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy.”

[21]   I have not heard any facts as to why it is averred that the conduct of the attorneys for the first respondent was grossly negligent. I am therefore disinclined to grant costs against the second respondent will stick to awarding costs on party and party scale in favour of the successful litigant. There is no reason why costs occasioned by this application should not to follow the cause. The attachment was on behalf of, and ostensibly on her instructions, the first respondent. In the premises, the first respondent is to pay the costs of this application.

ORDER

[22]   I make the following orders:

1.          The application is heard as one of urgency in accordance with the provisions of Rule 6(12) of the Uniform Rules, and the Applicant’s failure to comply with the normal time periods, forms and services as contained in the Rules is condoned.

2.        The Writ of Execution issued by the First Respondent, in conjunction with the Second Respondent, is stayed pending the finalisation of the appeal application brought by the applicant.

3.        The attachment of the Applicant’s property as listed in the inventory compiled by the Third Respondent and annexed to the Applicant’s founding affidavit is set aside.

4.        The First Respondent is ordered to pay the costs of this application.

MAKOTI M Z

ACTING JUDGE OF THE HIGH COURT

08/03/2021

APPEARANCES

DATE OF HEARING                      :        02 MARCH 2021

JUDGMENT RESERVED              :        02 MARCH 2021

DATE OF JUDGMENT                  :        09 MARCH 2021

COUNSEL FOR APPLICANT        :        ADV O MORAPEDI

COUNSEL FOR RESPONDENTS :        ADV H SCHOLTZ

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