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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE DATE: 29/1/2008

CASE NO: 39354/06

PARATHENA MARIA SMIT APPLICANT

and

CEDEX INVESTMENTS (PTY) LTD RESPONDENT

JUDGMENT

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MAVUNDLA, J.,

[1] The only issue to be decided in this matter is the question of costs.

[2] The applicant approached this Court by way of urgency, seeking rescission of the default judgment granted against her on 6 March 2007 and the setting aside of a writ of execution issued on 17 July 2007 pursuant to the aforesaid default judgment, as well as setting aside of the attachment made on 17 July 2007. The application was opposed.

[3] The notice of motion which had been issued on 22 November 2007 had some flaws. The plaintiff was cited as the applicant/defendant and Mrs Smit was cited as the respondent /plaintiff. An amended notice of motion was then served and filed on 30 November 2007, rectifying the aforesaid flaws. There was no opposition to this amendment and consequently the flaws were then cured.

[4] What made the matter urgent is the fact that there was a sale in execution scheduled for Tuesday 11 December 2007 at 10h00. What was to be sold in execution was Erf 937 Moreleta Park Extention2 Township, Local Authority; City of Tshwane Metropolitan Municipality, of which the floor area, according to plan, is 2037 (Two zero three seven) square meters in extent.

[5] At the commencement of the matter, I expressed to both counsel representing the respective parties that, in my view, the matter is urgent and that they must enter into serious settlement negotiations and revert with a draft order. Indeed my views and advice was heeded and after the matter had stood down for quite some time, the respective counsel reverted with a draft order and a settlement agreement, both of which were made an order of this Court. The only issue which the parties could not agree upon, was the question of who must pay the costs.

[6] The applicant is the defendant in the main action and the respondent is the plaintiff in the main action. For purposes of convenience, I shall refer to them as in the main action. The plaintiff had issued summons against the defendant in terms of which it claimed:

under claim 1

payment of an amount of R35 350, 00 plus interest at the rate of 4,5% per month from 21 February 2006 to date of payment alternatively interest at the rate of 15,5% per annum a tempora mora to date of payment;

under claim 2

payment of the sum of R40 400,00 together with interest of 4,5% per month from 6 April 2006 to date 4,5% per month from 6 April 2006 to date of payment alternatively interest at the rate of 15,5% per annum a tempora mora to date of payment;

under claim 3:

payment of the sum of R185 742,50 together with interest of 4,5% per month from 22 September 2005 to date 4,5% per month from 6 April 2006 to date of payment alternatively interest at the rate of 15,5% per annum a tempora mora to date of payment.

[7] According to the return of service, the summons were served dated the 20 February 2007, the summons were served at No. 7 Melrose Close, Highveld X7, Centurion, being the chosen domicilium citandi et executandi of PM Smit. There was no appearance to defend filed. The plaintiff applied for and obtained default judgment only in respect of claim 3 for the payment of the amount of R185 742,50 on 6 March 2007.The plaintiff proceeded to issue a warrant of execution of the above stated immovable property. The notice of attachment and execution was forwarded by the sheriff per registered post to address 703 Rubenstein Drive, Moretelapark, Pretoria, according to the return of service, being the chosen domicilium citandi et executandi, on 06 August 2007. The plaintiff then arranged for the sale in execution for the 11 December 2007. The application for the orders set out in para [2] relate to claim 3.

[8] On the 29 November 2007, under the same case number as above, the plaintiff proceeded to obtain another default judgment in respect of claim 1 for the payment of the amount R35 350, 00. Even if the defendant had succeeded in obtaining all the orders sought in the notice of motion that is before me, the plaintiff was already waylaying to ambush him with this second defaulted judgment it obtained. I pause to state that this type of piecemeal litigation, I find it most unacceptable. Where a litigant chooses to issue summons for a variety of claims, it is undesirable to later split that process into various separate processes and piecemeal seek judgment in respect of the various claims that have been packaged under the same summons. This type of conduct as embarked upon by the plaintiff, has the potential of stretching its opponent to the limit of its financial litigation costs. This type of conduct is in my view an abuse of the Court process and the plaintiff’s financial muscle. Such conduct needs to be censored by means of a costs order, where it is appropriate.

[9] The effect of the settlement which has since been made an order of this Court is that the defendant will pay to the plaintiff an amount of

R261 492, 50 which is the sum total of the amounts claimed in respect of these three claims.

[10] It is contended on behalf of the plaintiff that as the result of this settlement, the plaintiff has been successful in that the plaintiff has been paid all the amounts it was owed and that therefore the costs of the application for rescission should be paid by the defendant. It is further submitted that the very fact that the defendant has settled to pay the amounts claimed under all three claims, shows that the defendant did not have any defence against these claims, and that the plaintiff was justified in opposing the application for rescission. It is submitted that for the aforesaid reasons, the costs of this application should be borne by the defendant.

[11] On the other hand, it is contended on behalf of the defendant, that the plaintiff is only entitled to the costs of the steps it has taken, up to the obtaining of the warrant of execution on unopposed basis. In so far as the costs of the application for rescission are concerned, it is contended that these must be borne by the plaintiff because the defendant has been successful in having the rescission granted and having the warrant of execution as well as the sale in execution set aside. The defendant further contends that the attachment was done not in accordance with the Uniform Rules of the High Court in that, according to the Return of Service of Notice of Attachment of fixed property, the relevant warrant of attachment and execution was “forwarded per prepaid registered post,” to the “Occupier at Rubenstein Drive, Moreletapark, Pretoria being the defendant’s place of domicilium citandi.”

[12] Rule 46(3) of the Uniform Rules of the High Court provides that:

“The mode of attachment of immobile property shall be by notice in writing by the sheriff served upon the owner thereof, and upon the registrar of deeds or other officer charged with the registration of such immovable property, and if the property is in occupation of some person other than the owner, also upon such occupier. Any such notice as aforesaid shall be served by means of a registered letter, duly prepaid and posted addresses to the person intended to be served.”

[13] In the matter of Stand 734 Fairland v Boe Bank¹ Goldstein J, as he then was, where he dealt with Rule 46(3), found that the service per pre-paid registered letter constitutes a valid service and that receipt is not necessary. However, it is important to have regard to the matter of Ex Parte Firstrand Bank t/a FNB Home Loans v Sheriff, Brakpan and Other², where the Full Bench of the Witwatersrand Division, per Goldblatt J, after referring inter alia to the Stand 734 Fairland v Boe Bank (supra) matter with approval, said that:

“In my view the note to Rule of Court 46(3) in Superior Court Practice is a proper interpretation of the Rule. Such note reads:

'''Shall be served by registered letter''

The notice must be served by means of a registered letter, addressed to the person intended to be served. Where the Sheriff, in attaching immovable property, sends a notice of attachment to the owner and the occupier of the property attached and to be sold in execution by prepaid registered post, in formal compliance with the subrule, there will have been proper service of the notice of attachment and substantial compliance with the subrule, even though the owner or occupier might not have received the notice of attachment. Posting of the letter constitutes service and receipt thereof is unnecessary. If the notice is addressed to a domicilium citandi et executandi chosen by the debtor this will be a sufficient compliance with the subrule. A party, who has notice of the proceedings and fails to notify the creditor of a change of address, cannot impugn an attachment if the registered letter is sent to him at the address which appears in the papers in which judgment has been given. Where no domicilium has been chosen and the debtor's whereabouts are unknown, application will have to be made to court for directions in regard to service. A notice under the subrule is not ''process of the court directed to the Sheriff'' and cannot therefore be served in accordance with the provisions of Rule 4(1) (iv).' The Court then proceeded to make the following order: “It is declared that:

1. Service in terms of Rule of Court 46(3) takes place upon post by prepaid registered post of a letter containing the requisite notice to the address of the person intended to be served. Such address shall be either the address chosen or furnished by the addressee as such person's address or the actual postal address of such party.

2. A notice in terms of Rule of Court 46(3) cannot be served in the absence of an appropriate order of Court in terms of Rule of Court 4.”³

[14] In the light of the judgment of Goldblatt J, in absence of a Court order directing that the warrant of attachment be effected by the sheriff in terms of Rule 46(3) upon the defendant, it cannot be held that the service in casu by the sheriff per registered post was proper service. I have not been directed to such order granting leave for such service, neither have I come across such order in the Court file. In the premises, I am obliged to conclude, as I do, that that the service by the sheriff of the relevant warrant of attachment and execution of the immovable property at Rubenstein Drive, Moreletapark per registered post, was irregular and therefore must be set aside.

[15] It must further be noted that whereas Rule 46(3) requires that the notice of attachment of immovable property shall be served upon the owner of the relevant property and “upon the registrar of deeds or other officer charged with the registration of such moveable property,…”, there was no proof of such service upon the registrar of deeds or such officer in charge. For this reason as well, in my view, the warrant of attachment was also assailable.

[16] The plaintiff, in my view, was not justified in opposing the application to have the warrant of attachment set aside. In the premises, I am of the view that the defendant was justified in approaching this Court, as it did, to have the warrant of attachment and execution set aside.

[17] Although the plaintiff, as a creditor is entitled to be paid and paid without any delay, when he embarks in a process to have such payment effected, he must do so within the confines of the permissible legal procedures. The steps it took in regard to the attachment were certainly not in accordance with permissible legal procedures and it cannot therefore be entitled to the costs pertaining to the steps it took in regard to the warrant of attachment and execution, even if these were taken at the stage when the matter was not opposed.

[18] I do take note of the fact that the parties subsequently settled the matter, thus resulting in the defendant agreeing to pay the whole of the amounts claimed by the plaintiff. That, however, does not sway me from my conclusion that the plaintiff was not entitled to oppose the application brought by the defendant. I am of the view that, the plaintiff must be ordered to pay the defendant’s costs occasioned by the opposing of this application, including the reserved costs.

[19] In the premises the following order is made:

19.1 That the respondent (plaintiff) is ordered to pay defendant’s costs occasioned by the opposing of this application, which costs shall include the reserved costs of the 10 December 2007.

2. That the respondent (plaintiff) is entitled to the costs, on unopposed scale, up to the date of granting of the default judgment on the

6 March 2007.

N .M. MAVUNDLA

JUDGE OF THE COURT

HEARD ON THE: 10 DECEMBER 2007

DATE OF JUDGMENT: 29 JANUARY 2008

APPLICANT`S ATT: MR. R RHEEDERS

APPLICANT`S ADV: MR. SCHOEMAN

RESPONDENT’S ATT: MR. J VAN GREUNEN

RESPONDENT’S ADV: MR. BOTES

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