Our firm recently acted as a correspondent in the Supreme Court of Appeal (SCA) matter of BG Bojosinyane & Associates v The Sheriff, Vryburg and Another (1072/2022) [2023] ZASCA 174.
In this matter, BG Bojosinyane & Associates had instructed the Sheriff of the Magistrates’ Court in Vryburg, to serve and execute certain court processes. The Sheriff, however, would not carry out these instructions until a deposit was made for the estimated fees which the Sheriff would charge for carrying out these instructions.
BG Bojosinyane & Associates refused to pay a deposit and launched an urgent application in the North-West High Court against the Sheriff requesting that the Sheriff be ordered to carry out the instructions without delay.
The Sheriff and the South African Board for Sheriffs (the second respondent who intervened) subsequently opposed the application brought. The High Court dismissed the application. Leave to Appeal was granted by the SCA and the SCA had to adjudicate on the following:
a) whether the relief claimed before the North-West Division of the High Court, Mahikeng included a determination of the issues in paragraph (b) below; if so
b) whether, unless excused by an authorisation granted by a Magistrate in terms of s14(7) of the Magistrates’ Court Act 32 of 1944 (the Act), a Sheriff is entitled to refuse to serve or execute a court process unless a deposit in respect of the Sheriff’s fees and charges relating thereto is paid upfront, allied to which is whether once the process is served or executed, a Sheriff is entitled to withhold the return of service until payment of his fees and charges specified therein have been paid; and
c) whether a mandatory interdict to give effect to the determination of the issues in (b) above should have been granted.
In its Judgment, the SCA referred to the Magistrates Court Rules, the Magistrates Court Act as well as the Sheriff’s Act.
Magistrates Court Rule 8(1) and (2) of the rules provide that:
“(1) Except as otherwise provided in these Rules, the process of the court shall be served or executed, as the case may be, through the sheriff.
(2) Service or execution of process of the court shall be effected without any unreasonable delay…”
Rule 8(6) provides:
“(6) After service or attempted service of any process, notice or document, the sheriff, other than a sheriff who is an officer of the Public Service, shall specify the total amount of his or her charges on the original and all copies thereof and the amount of each of his or her charges separately on the return of service.”
Rule 9(17A)(a) provides:
“The document which serves as proof of service shall, together with the served process of court or document, without delay be furnished to the person at whose request service was effected.”
Sections 14(7) and (8) of the Magistrates’ Court Act provide:
“(7) A messenger receiving any process for service or execution from a practitioner or plaintiff by whom there is due and payable to the messenger any sum of money in respect of services performed more than three months previously in the execution of any duty of his office, and which notwithstanding request has not been paid, may refer such process to the magistrate of the court out of which the process was issued with particulars of the sum due and payable by the practitioner or plaintiff; and the magistrate may, if he is satisfied that a sum is due and payable by the practitioner or plaintiff to the messenger as aforesaid which notwithstanding request has not been paid, by writing under his hand authorize the messenger to refuse to serve or execute such process until the sum due and payable to the messenger has been paid.
(8) A magistrate granting any such authority shall forthwith transmit a copy thereof to the practitioner or plaintiff concerned and a messenger receiving any such authority shall forthwith return to the practitioner or plaintiff the process to which such authority refers with an intimation of his refusal to serve or execute the same and of the grounds for such refusal.”
Section 16(k) of the Sheriffs Act assigns to the second respondent the responsibility, with the approval of the Minister, to “frame a code of conduct which shall be complied with by the sheriff”. Clause 2 of the Sheriff’s Code of Conduct states that:
“A sheriff entrusted with the service or execution of a process shall act without avoidable delay in accordance with the provisions of rule 8(4) of the Magistrates’ Court Rules or rule 4(6)(a) of the Supreme Court Rules: Provided that any process, requiring urgent attention shall be dealt with forthwith.”
It was held by the SCA that the request for an upfront deposit can cause unnecessary delays and having considered all the factors, specifically the fact that the South African Board of Sheriffs and the Magistrates Court are creatures of statute, the SCA held that the legislative framework does not make provision for demanding an upfront deposit payment in anticipation of fees by a Sheriff. The Sheriff may furthermore not withhold returns of service pending payment for the fees and charges in relation thereto.
The SCA accordingly upheld the Appeal and ordered that unless authorised by a Magistrate in terms of section 14(7) of the Magistrates’ Court Act, the first respondent was directed to effect service and to execute any court processes emanating from the appellant’s practice without delay, and without requiring payment of fees and charges before any such process is served or executed, or before the return of service relating thereto is released.
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