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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 4628/2014

In the matter between:­

ERIC THOZAMILE BABA                                                                       FIRST APPLICANT

SEEISO JOSEPH SEFATSA                                                            SECOND APPLICANT

and

JUSTICE MALANOT                                                                         FIRST RESPONDENT

THE EDITOR, VOLKSBLAD NEWSPAPER                               SECOND RESPONDENT

MEDIA 24 NASPERS                                                                        THIRD RESPONDENT

ON THE DOT                                                                                FOURTH RESPONDENT

PAARLCOLLSET                                                                               FIFTH RESPONDENT

MARLENE JORDAAN                                                                       SIXTH RESPONDENT

THE SHERIFF, KROONSTAD                                                     SEVENTH RESPONDENT

CORAM:                      MBHELE, J

HEARD ON:                 31 AUGUST 2017

DELIVERED ON:         09 NOVEMBER 2017

INTRODUCTION AND BACKGROUND

[1] First and Second Applicant launched an urgent application against 1^st to 7^th Respondent in which they seek an order declaring the attachment and  subsequent   sale of the Applicants' rights, title and interest in their claim for damages against the first to sixth respondent in an action brought under case number 4628/2014 null and void and of no legal force and effect.

HISTORY

[2] The  Applicants  issued  summons  against  First  to  Sixth respondent under case number: 4628/2014 (main action). The trial in the main action was set down for hearing on 7, 8 and 10 June 2016.

On 07 June 2016 the main action was postponed to 22-25 November 2016 for trial. The applicants were ordered to pay the wasted costs occasioned by the postponement.

The First Respondent's bill of costs in relation to the postponement was taxed on 10 August 2016 and the amount of R40, 983.29 was allowed by the taxing master.

The Applicants failed to comply with the costs order causing the first respondent to issue a writ of execution on 18 August 2016.

The sheriff’s return of service shows that the writ of execution accompanied by notice of attachment of the applicants'  rights, title and interest to the claim in the  main action were served personally on the Applicants on 20 September 2016.

On 27 September 2016 the attorney for the First Respondent sent a copy of the notice of sale in execution to the applicants' attorney.

[3] The first respondent bought the applicants' claim for an amount of R10-00 at an auction held at Kroonstad on 3 November 2016.

On 24 November 2016 the Applicants' Attorney was notified that the applicants' rights, title and interests in their claims were sold in execution.

On 05 January 2017 applicants' attorney wrote a letter to the first respondent’s erstwhile attorney with the following contents:

1.     "The above-mentioned matter as well as your letters dated the 21^st November 2016 as well as the 07^th December 2016, contents of which had been noted, instantly refers.

2.     We write to confirm hereto that we have consulted with our clients herein and we have been instructed to proceed with the matter and they will not be withdrawing any action instituted by them. Furthermore, we have also been instructed by our clients that they never gave any person and/or ceded their claims to any person and as such our instructions are to still proceed with the Plaintiff's claims.

3.      We hope you find the above to be in order."

[4] On 11 April 2017 the first respondent amended his plea and raised a special plea that the applicants have no locus  standi.

[5] On 24 April 2017 the applicants issued this application, three days before the hearing of the main action.

ISSUES IN DISPUTE

[6] The parties are at variance on whether or not the notice of attachment and writ of execution were served on the applicants by the seventh respondent. Applicants deny that the seventh respondent served the writ of execution personally on them as alleged.

CONTENTION BY THE PARTIES

[7] Mr. Mokhele, on behalf of the applicants, submitted that the first respondent took an extra ordinary measure which was intended to prejudice the applicants to recover his costs. He, further, submitted that the applicants had other assets that the first respondent could have attached to satisfy his cost order but he chose their interest in the main action as a quicker way to extinguish the applicants' action. He further argued that the conduct of the first respondent infringed on the Applicants' rights as enshrined in section 34 of the constitution of the Republic.

[8] Mr. Groenewald contended that although the issue of urgency fell by the way side the Applicants have to bear costs of this application as the urgency was self-created. He contended further that even if the doors of court are to   be closed in the face of the applicants, their misery was self­ created as they knew about the attachment and did nothing to protect their claims.

[9] Mr. Van der Walt, on behalf of the second to sixth respondents, contended that even if the motive behind the intended attachment of a litigant's claim is to put an end to the litigation, it does not follow that the relevant conduct constitutes an abuse of the court process. He contended, further, that if it is found that the first respondent's conduct constituted a limitation of the applicants' right in terms of section 34 of the constitution, such limitation is, in his view, reasonable in that the applicants knew about the attachment of their respective claims and did nothing to take steps to prevent their claims being sold in execution.

APPLICABLE LAW

[10] Rule 45(8) reads:

"(8) If incorporeal property, whether movable or immovable, is available for attachment, it may be attached without the necessity of a prior application to court in the manner hereinafter provided:

(a)      Where the property or right to be attached is a lease or a bill of exchange, promissory note, bond or other security for the payment of money, the attachment shall be complete only when-

(i)       notice has been given by the sheriff to the lessor and lessee, mortgagor and mortgagee or person liable on the bill of exchange or promissory note or security as the case may be, and

(ii)       the sheriff shall have taken possession of the writing (if any) evidencing the lease, or of the bill of exchange or promissory note, bond or other security as the case may be ...

(b)      Where movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under suspensive condition to or by a third person, the attachment shall be complete only when the sheriff has served on the execution debtor and on the third person notice of the attachment with a copy of the warrant of execution ...

(c)      In the case of the attachment of all other incorporeal property or incorporeal rights in property as aforesaid,

(i)       the attachment shall only be complete when -

(a)       notice of the attachment has been given in writing by the sheriff to all interested parties and where the asset consists of incorporeal immovable property or an incorporeal right in immovable property, notice shall also have been given to the registrar of deeds in whose deeds registry the property or right is registered, and

(b)       the sheriff shall have taken possession of the writing or document evidencing the ownership of such property or right, or shall have certified that he has been unable, despite diligent search, to obtain possession of the writing or document;

(ii)       the sheriff may upon exhibiting the original of the warrant of execution to the person having possession of property in which incorporeal rights exist, enter upon the premises where such property is and make an inventory and valuation of the right attached.'

[11] It is well established under Plascon Evans rule that in application proceedings, a final order can be granted only if the facts averred in the applicant's affidavit, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. (See Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) and National Director of Public Prosecutions v  Zuma [2009] ZASCA 1; 2009 (2) SA 277 SCA.

[12] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 SCA, the supreme court of appeal held as follows:

"[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise  the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied."

[13] On application of Plascon Evans rule there is no reason not to accept that the seventh respondent did serve the notice of attachment and writ of execution on the applicants. I cannot find that the respondents' version, in relation to service of the notice of attachment and writ of execution, is so farfetched and untenable that it justifies the court's rejection of such version.

[14] In Price Waterhouse Coopers Inc and Others v National Potato Co-Operative Ltd 2004 (6) SA 66 at 80

[50] ....It has long been recognised in South Africa that a court is entitled to protect itself and others against the abuse of its process (see Western Assurance Co v Caldwell's Trustee 191 8 AD 262 at 271; Corderoy v Union Government (Minister of Finance)  1918 AD 512 at 517; Hudson  v Hudson and  another 1927 AD 259 at 268; Beinash v Wixley [1997) ZASCA 32[1997] ZASCA 32; ; 1997 (3) SA 721 (A) at 7340; Brummer v Gorfil Brothers Investments (Pty) Ltd en andere 1999 (3) SA 389 (SCA) at 412C-D), but no all-embracing definition  of 'abuse of process' has been formulated. Frivolous or vexatious litigation has been held to be an abuse of process (per Innes CJ in Western Assurance v Caldwell's Trustee supra at 271 and in Corderoy v Union Government (Minister of Finance) supra at 517) and it has been said that 'an attempt made to use for ulterior purposes machinery devised for the better administration of justice' would constitute an abuse of the process (Hudson v Hudson and another supra at 268). In general, legal process is used properly when it is invoked for the vindication of rights or the enforcement of just claims and it is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper   end.   The  mere  application of  a  particular court procedure for a purpose other than that for which it was primarily intended is typical, but not complete proof, of mala fides. In order to prove mala fides a further inference that an improper result was intended is required. Such an application of a court procedure (for a purpose other than that for which it was primarily intended) is therefore a characteristic, rather than a definition, of mala tides . Purpose or motive, even a mischievous or malicious motive, is not in general a criteria for unlawfulness or invalidity. An improper motive may however be a factor where the abuse of court process is in issue. (Brummer v Gorfil Brothers Investments (Pty) Ltd en andere supra at 4121-J; 4141-J and 4168).

..... Nevertheless it is important to bear in mind that courts of law are open to all and it is only in exceptional cases that a court will close its doors to anyone who wishes  to  prosecute  an  action (per Solomon JA in  Western  Assurance Co v  Caldwell's Trustee 1918 AD 262 at 273-274).

[15] Application of the s 36(1) limitations and analysis involves  a process set out in S v Makwanyane and  Another  [1995] ZACC 3; 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665) at  para 104 where the following was said:

"The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality.

... .... In the balancing process the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question."

[16] It is a well established principle of our law that a court has a duty to protect itself against abuse of its processes. In the case of Nedcor Bank Ltd v Gcilitshana 2004 (1) SA 232 (SE) at page 241 paragraph 27 - with reference to the judgement of De Villiers JA in Hudson v Hudson 1927 AD 259 at 268 - the Court held:

[27] Ordinarily, the reasons and motives of a party for instituting legal proceedings are irrelevant. However, '(w)hen . . . the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.

[17] In BEINASH v WIXLEY 1997[3] SA 721 [SCA] AT 734F-G, Mahomed C J, set out the applicable legal principle as follows:

"What does constitute an abuse of process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of "abuse of process". It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous to that objective."

See also (Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W) at 820A-B:

[18] Mr. Mokhele conceded that the law makes provision for the legal process invoked by the first respondent. What he had issue with is the first respondent using a legal process intended for recovering monies owed to achieve an improper end, being to terminate the action proceedings.

[19] The first respondent, in its first attempt to satisfy the costs order, directed the sheriff to attach the applicants 1 claim in the main action. He did not attempt to attach other movables in applicants' possession. The first respondent was aware that applicants were employed and earn salaries but made no attempt to attach their emoluments or other movable assets.

[20] In balancing the competing interests I must consider  whether the measure taken was necessary to achieve the intended results, that there were no less onerous ways of attaining the aimed results. Was it reasonable considering  its impact on the fundamental rights of the applicants.

[21] I am of the view that there were less onerous ways the first respondent could have used to recover his costs. He opted for the most extreme measure. The amount owing was R40, 983.29 and the R10-00 generated as proceeds of the sale would not even attempt to reduce the debt. The step he took achieved only one thing. It succeeded in limiting the applicants' constitutional rights to have their matter heard in a court of law.

[22] The argument by Messrs. Groenewald and Van Der Walt that the applicants can still pursue their claim before a court of law, is fictitious. The first respondent has already amended his plea challenging the applicants' locus standi. There is no way applicants and respondents will cooperate with each other in pursuit of applicants' claim.

[23] This court will not countenance a process that is aimed at limiting another litigant's rights when there are other just and equitable ways to achieve the intended results. When balancing the interests involved, I am persuaded that the applicants must be afforded an opportunity to have their matter heard before a court of law.

[24] It is clear from the papers that the applicants did not understand nor appreciate the consequences of the process invoked by the first respondent. This is evident from the letter written by Mr. Mokhele on 5 January 2017. Despite receiving correspondence informing him of the sale of the applicants' rights on auction, he remained of the view that the applicants still held title and rights to the said claim.

[25] Mr. Mokhele was asked why he should not be directed to pay the wasted costs occasioned by the postponement of the urgent application de bonis pro priis. In his response, he stated that the delay in bringing the urgent application was not a deliberate act or omission on his part. Chronicles of this matter show that on 27 September 2016, already, Mr. Mokhele was sent a notice of sale in execution by the erstwhile Attorneys of the first respondent.

[26] On 21 November a letter was written informing him that the applicants no longer hold rights and title in the claim under case 4628/2014. The only time he reacted to the correspondence of the first respondent's erstwhile attorney was on 01 January 2017.

[27] Nothing was done until 30March 2017 when he requested the first respondent's counsel to provide him with all documents relating to the sale in execution. In my view Mr. Mokhele failed to display the necessary competence and skill when handling this matter. He was negligent in his approach. He ran to court on the 11th hour when he realised that his back was against the wall. His conduct must be deprecated by this court. He failed to advise applicants properly.

[28] In Khan v Mzovuyo Investments (Pty) Ltd 1991 (3) SA 47 (Tk) the court ordered the plaintiff's attorneys to pay the costs of a postponement of the matter de bonis propriis. Haneke J outlined the approach (at p.48) as follows:

"The principle of awarding costs de bonis propriis is summed up by .Innes CJ in Vermaak1s Executor v Vermaak's Heirs 1909 TS 679 at 691 as follows:

'The whole question was very carefully considered by this Court in Potgieter's case (1908 TS 982), and a general rule was formulated to the effect that in order to justify a personal order for costs against a litigant  occupying a fiduciary  capacity  his conduct in connection with the litigation in question must have been mala fide, negligent or unreasonable"

[29] Applicants cannot be expected to pay for their attorney's carelessness. Mr. Mokhele, has to bear the costs for the conduct he displayed.

ORDER

1.          The writ of execution dated 18 August 2016 including notice of attachment and sale in execution on 3 November 2016 of applicants' rights, title and interests in the claim under case no 4628/2014 are set aside.

2.          First to Sixth respondent to pay the costs of this application jointly and severally, the one paying absolving others.

3.          Mr. L.M. Mokhele, the applicants' attorney to pay the costs occasioned by the postponement on 02 May 2017 de bonis pro priis.

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NM MBHELE, J

On behalf of the Appellant:                           Mr LM Mokhele

Instructed by:                                                Mokhele Attorneys

                                                                             BLOEMFONTEIN

On behalf of the 1st Respondent:                 Mr Groenewald

Instructed by:                                                Symington & de Kok

                                                                              BLOEMFONTEIN

 

On behalf of the 2nd - 5th Respondent:         Adv Van der Walt (SC)

Instructed by:                                                 Phatshoane Henney Inc

                                                                              BLOEMFONTEIN

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