H v Sheriff Johannesburg North and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Opperman J |
| Judgment Date | 11 September 2023 |
| Citation | 2023 JDR 3418 (GJ) |
| Docket Number | 2020/44450 |
| Court | Gauteng Local Division, Johannesburg |
Opperman J:
Introduction
In this application the applicant, Mr H, seeks to suspend the money orders [1] granted by Judge Victor on 12 September 2022 in favour of Mrs SH in terms of rule 43 (the Victor J order).
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Before me Mr H applies for the suspension of the Victor J order in terms of Rule 45A (alternatively the common law) which reads:
Suspension of orders by the court
The court may, on application, suspend the operation and execution of any order for such period as it may deem fit: Provided that in the case of an appeal, such suspension is in compliance with section 18 of the Act’
Mr H had previously applied to set aside the Victor J order on the basis that it was invalid (the invalidity application), but the invalidity application was dismissed by Judge Mudau (the Mudau J order). Mr H has delivered an application for leave to appeal against the dismissal of his invalidity application by Mudau J. That application for leave to appeal is still pending.
Having failed to set aside the Victor J order before Mudau J, Mr H now seeks to suspend Victor J’s order before me pending the finalisation of the appeal against the Mudau J order, in other words, Mr H contends that Mudau J’s judgment is wrong and that pending an appeal court coming to that conclusion, Mr H should not have to comply with Victor J’s order, which, it bears repeating, was made in terms of rule 43 which is a rule which deals with, amongst other subjects, interim maintenance between spouses pending divorce.
Ancillary to Mr H’s present application, is his prayer for an order setting aside or suspending 2 writs of execution, one issued on 22 November 2022 and the other on 23 May 2023 which were issued on the strength of the Victor J order. Mr H’s entire suspension focussed application I shall refer to as the Rule 45A application.
Much has happened since the granting of the Victor J order and it is thus useful to set out a chronology of the relevant events from 12 September 2022 (when the Victor J order was granted), to date.
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Relevant Events
On 12 September 2022, the Victor J order was granted. Paras [14] and [16], being the orders relevant to the present Rule 45A application, provide:
‘Interim Maintenance
[Mr H] shall pay interim maintenance at the rate of R104 000 per month payable on the last day of each month with effect from 1 September 2022 meaning payment of the said amount commences on 30 September 2022 and the last day of the month thereafter into an account nominated by [Mrs SH].
. . . . . . . . . .
Contribution to Costs
[Mr H] shall make a contribution to [Mrs SH’s] legal costs in the amount of R830 000 within 10 court days of this order into an account nominated by [Mrs SH].’
On 30 September 2022, Mr H launched the Rule 45A application (as Part A) and the invalidity application (as Part B) and set it down in the urgent court for hearing on 4 October 2022. By agreement between Mr H and Mrs SH, Makume J granted an order, the relevant parts of which read:
The respondent (Mrs SH) undertakes not to execute the warrant/s of execution obtained by her pursuant to the order made by Victor J on 12 September 2022 under the above case number, until 25 October 2022. It is recorded that the respondent (Mrs SH) does not waive or abandon any of her rights to contend that the applicant (Mr H) did not make out a case for the relief sought in parts A and/or B of the application or that the application is not urgent.
The applicant (Mr H) shall not persist with seeking any relief as set out in Part A of the application.
. . . . .
The applicant (Mr H) shall ensure that the application is enrolled for hearing in the Urgent Family Court for 25 October 2022.” (emphasis provided)
Part A of Mr H’s application was the application in terms of rule 45A to suspend the operation of the Victor J order. Mr H bound himself to not persist with any relief as set out in Part A of his application. Part B, being the invalidity application, was set
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down for hearing on 25 October 2022 when, despite neither party contending that the matter was not urgent, it was struck off the roll for want of urgency by Wright J. It was argued at the hearing before Wright J that the undertaking given by Mrs SH lapsed on 25 October 2022 as per the order of Makume J and the court was urged to enrol the matter as one of urgency by virtue of, amongst other reasons, this feature. The point though is this: everyone present in Wright J’s court on 25 October 2022 knew that Mrs SH’s undertaking lapsed on that day.
On the very next day, 26 October 2023, Mr H launched his second Rule 45A application in which he sought the suspension of paragraphs [14] and [16] of the Victor J order only, i.e. not the entire order. This followed an instruction by Mr Dollie, Mrs SH’s attorney of record, to the sheriff to make an inventory and attach, but not to remove certain assets.
On the 22 November 2022 a writ of execution was issued in respect of the maintenance obligations of Mr H towards Mrs SH and the children for the months of September and October 2022 in the amount of R218 000 payable in terms of paragraph [14] of Victor J’s order (the First Writ). This writ resulted in the attachment of a BMW motor vehicle (the BMW vehicle) on 24 November 2022.
During November 2022, another writ was issued by the Registrar of this court, this time for the contribution towards costs ordered in terms of paragraph [16] of Victor J’s order. On 8 November 2022, the Sheriff received payment of the sum of R830 000 in response to this writ which is of significance only insofar as Mr H’s compliance with it has a bearing upon an argument subsequently raised on his behalf, to which I return below.
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On 4 April 2023, at a case management meeting, [2] the issue of Mr H’s failure to deliver the BMW vehicle and the Sheriff’s alleged obstructive behaviour in respect of the execution of writs, was raised. Mr Dollie was requested to provide the name of the Sheriff and the particulars of the non-co-operation complained of, which he did.
On 25 April 2023, the BMW vehicle was delivered by Mr H personally to the office of the Sheriff.
On 23 May 2023, Mr Dollie caused a further writ to be issued by the Registrar in relation to the further arrear maintenance amounts for the period December 2022 to April 2023 (the Second Writ) which was executed by the Sheriff on 30 May 2023 when the Sheriff attached Mr H’s bank account at ABSA. The Sheriff informed Mr Dollie that Mr H’s account reflected a credit of R530 000.
On 6 June 2023 the notice of sale in execution of the BMW vehicle was served on Mr H and on 20 June 2023 it was sold by public auction (I was advised from the Bar that the proceeds of the sale were insufficient and no monies were received).
On 19 June 2023 Mr H served a supplementary affidavit to the rule 45A application which application, as at the date of this hearing bears three notices of motion dated 26 October 2022, 19 June 2023 and 22 June 2023. No formal amendments have been moved or allowed in respect of any of these notices of motion by Mr H.
In the notice of motion dated 26 October 2022, Mr H sought an order that the money orders set out in paras [14] and [16] of the Victor J order be suspended pending the finalisation of the relief sought in Part B being the invalidity application which was heard by Mudau J on 22 November 2022 and dismissed on 14 December 2022. The third notice of motion which amended the dates for the filing of papers and the
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enrolment of the application on the urgent court roll for 4 July 2023, was transmitted to Mr Dollie via email on the evening of 22 June 2023 affording him less than one court day to deliver an answering affidavit although he had received the application with a notice of motion with no dates for filing and no set down date on 19 June 2023.
Events pursuant to the Second Writ
On 22 June 2023 a case management meeting was held where I directed that Mr H, if so advised, could endeavour to enrol the Rule 45A application in the urgent court. The matter was then enrolled at Mr H’s instance for hearing on 4 July 2023.
Having placed Mr Dollie and Mrs SH under enormous pressure with unreasonably truncated times for the filing of opposing papers, Mr H unilaterally removed the matter from the roll of 4 July 2023 and approached the Deputy Judge President for a special allocation due to the voluminous papers. I should mention that this, the extent of the papers, must have been foreseen.
During July 2023, special motions were being enrolled in this division for the 4th term and having received the request from Mr H for a special allocation, the Deputy Judge President released me from my duties to hear the matter on Friday the 11th of August 2023 (as it turned out, there was not sufficient time on the day to complete the argument which argument was then finalised on 17 August 2023 at 19h30 [3] ).
The urgency
The replying affidavit delivered by Mr H, was delivered 5 months late. The notices of motion were never formally amended, supplementary affidavits were filed
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without leave and the relief sought in the original notice of motion has been overtaken by events.
It has not escaped this court’s attention that one of the criticisms that was levelled against Mrs SH and the Victor J order is the alleged undisciplined way Victor J had approached the rule 43 proceedings which, so the criticism continued, led to all the supplementary affidavits going in and Mr H being subjected to an unfair process. I do not express a...
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