Iscor Pension Fund v Jerling and Others

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Margo J
• Judgment Date: 22 May 1978
• Citation: 1978 (3) SA 858 (T)
• Hearing Date: 22 May 1978

Margo J:

This is a review of taxation on a case stated by the Taxing Master under RSC 48. The parties are the deputy-sheriff for the district of Alberton and one of the defendants, Dr J C Jerling (hereinafter referred to simply as the defendant), in an action by the Iscor Pension Fund E against Julius Coetzee Jerling and others.

The history of the matter appears from the stated case and the annexures thereto. On 16 September 1975 the plaintiff, having obtained a judgement with costs by default, a writ of execution was issued. On 23 September 1975 the deputy-sheriff noted in his return that certain assets had been F attached, including a loan account in favour of the defendant in a company known as Julius Alet Beleggings (Edms) Bpk, the value of which loan account was stated in the return as being R111 193,95. On 22 December 1975 the deputy-sheriff was instructed to release all attachments and his account of R3 850 in respect thereof was paid by the plaintiff's G attorneys. It appears that the defendant was liable to the plaintiff for the costs of the attachment, but disputed the amount thereof and in particular the charges made in respect of the attachment or purported attachment of the loan account. On 16 February 1977 the defendant's attorneys set down the matter of the deputy-sheriff's account for taxation which took place on 7 March 1977. The only item in dispute was the amount H of R3 808,80, being 3¼ per cent of R111 193,95 (ie the value of the loan account as stated in the deputy-sheriff's return on the writ of execution). The deputy-sheriff had here applied para 5 (d) (vi) of the tariff referred to in Supreme Court Rule 68, which provides that when an attachment is withdrawn by a judgement creditor or stayed before sale, the deputy-sheriff may charge for the execution of the writ 3¼ per cent on the value of the property attached or the amount of the writ whichever is the lesser.

Margo J

It is to be noted that the taxation was not set down as a matter between the plaintiff and the defendant, but as a matter between the defendant and the deputy-sheriff, and then only after the plaintiff had paid the deputy-sheriff's account.

A At the taxation on 7 March 1977 the deputy-sheriff raised the contention that the defendant was not entitled to have the account taxed, because there was no vinculum juris between the defendant and the deputy-sheriff. The Taxing Master ruled against the deputy-sheriff on that point, holding B that Supreme Court Rule 68 (3) covered the situation. That Rule reads as follows:

"Where any dispute shall arise as to the validity or amount of any fees or charges, or where necessary work is done and necessary expenditure incurred for which no provision is made, the matter shall be determined by the taxing officer of the court whose process is in question."

C The Taxing Master nevertheless ruled that the plaintiff should be given notice of the taxation, and the hearing was adjourned till 2 pm to enable that to be done. At the adjourned hearing the defendant was armed with a consent by the plaintiff's attorneys to the taxation in their absence.

The defendant then raised the contention that the attachment of the loan D account had not been completed, as required by Rule 45 (8) (b), in that no notice had been given to the pledgee of the loan account. The loan account had been ceded by the defendant in securitatem debiti to Santam Bank Ltd, and it was contended that Rule 45 (8) (b) required service of the attachment to be effected on the cessionary. That was not done, although notice was given in a letter sent by the deputy-sheriff to a company known as Santam Versekeringsmaatskappy.

E The Taxing Master ruled against the defendant on this point, holding that the attachment had been completed.

The last point raised at the taxation concerned the value of the loan account. There was evidence that, in view of the cession and of the debt F secured thereby, the value of the loan account did not exceed R10 000. The deputy-sheriff's answer was that the figure of R111 193,95 had been given to him by the defendant's bookkeeper as the value of the loan account, and that he was entitled to accept that value as correct.

The Taxing Master ruled that the value of the loan account was R10 000, and that the deputy-sheriff's account had to be reduced accordingly.

G The deputy-sheriff thereupon required the Taxing Master to state a case for review, under Rule 48 (1), on the first and last points decided at the taxation, whereupon the defendant, both on his own behalf and as cessionary of the plaintiff's rights against...