REPUBLIC OF SOUTH AFRICA

                                IN THE HIGH COURT OF SOUTH AFRICA
                                                       GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

                                                   					                         CASE NO: 28016/2013

In the matter between :

PETLANE  OILS   (PTY)   LIMITED							Applicant

and

SHELL   SOUTH   AFRICA   (PTY)  LIMITED					          First  Respondent

SHELL  SOUTH   AFRICA  MARKETING  (PTY)  LTD				         Second  Respondent

    					JUDGMENT

MBONGWE, AJ :
[1]	The  applicant  launched  this  application  originally  on  the  25th  January  2013  as  semi
urgent  in  terms  of  Rule  6 (12)  seeking  an  order  setting  aside  the  attachment  and  sale
in   execution  of  its  claim  of  just  over  R7.4  million  against  the  1st  respondent.  The 
2nd  respondent  was  the  purchaser  of  the  said  claim. 

[2]	It  is  common  cause  that  the  applicant’s  attorneys,  in  pursuing  the  aforementioned
claim,  commenced  motion  proceedings  during  2009  in  the  South  Gauteng  High  Court.
Owing  to  uncertainty  with  regard  to  jurisdiction,  the  attorneys  commenced  similar  
motion  proceedings  in  the  North  Gauteng  High  Court  shortly  thereafter.  The  applicant  
was  unhappy  with  his  attorneys  as  a  result  of  this  uncertainty.  Applicant  terminated  
their   mandate  and  appointed   another  firm  of  attorneys  with  instructions   withdraw  
the  two  motion  proceedings,  ostensibly  by  notices ,  during  2009  and   to  tender  costs.  
They  then  commenced  action  proceedings  under  case  number  40189/2009  in  this  
court.  

[3]         The  bills  of  costs  were  taxed  in  the  sums  of  R20 893.62  and  R33 671.47  in  the  North  
and  South  Gauteng  High  Courts,  respectively,  in  March  2011.  It  is  in  respect  of  the  
unpaid  taxed  bill  of  costs  in  the  sum  of  R20 893.62  that  the  applicant’s  claim  under   
case  number  40189/2009  was  eventually  attached  and  sold  in  execution.

[4]	It  is  common  cause  that  the  bill  of  costs  in  the  sum  of  R33 671.47  in  respect  of  the  
South  Gauteng  High  Court  costs  was  settled  subsequent  to  a  writ  of  execution  having  
been  served  at  the   applicant’s   principal   place  of   business   by  the  sheriff  of  the  
court.   The  applicant  alleges  that  he  had  not  been  aware  that  there  had  been  an  
outstanding  bill  of  costs  until  the  11th  January  2013  when  he  received  a  letter  from  
the  correspondent   attorneys  of  the  1st  respondent’s  attorneys.  It   bears  mentioning  
at  this  stage  that   the  hearing  of  the  action  proceedings  was   set  to  commence  on  
the  8th  February  2013.  The   relevant   letter  to  the  applicant  dated  11th  January  2013  
reads  in  part  as  follows:   “Attached  is  a  copy  of  a  letter  from  the  relevant  sheriff  
confirming  the  sale  in  execution,  and  purchase  by  Shell  S.A  Marketing  (Pty)  Ltd,  of  
Petlane  Oils  (Pty)  Ltd’s   right,  title  and  interest  in  and  to  the  action  instituted  by  it  in  
the  South  Gauteng  High  Court,  Johannesburg,  under  case  number  40189/2009 ”.  This   
letter  is  addressed .  In  the  penultimate  paragraph,  this  letter  reads  thus:  “Shell  S.A  
Marketing  (Pty)  Ltd  hereby  requests,  as  the  current  right,  title  and  interest  holders  in  
the  action  under  case  number  40189/2009,  that  you  withdraw  as  attorneys   of  record 
”  As  already  stated,  the  applicant  denies  having  been  aware  of  any  outstanding  
settlement  of  costs  and  of  any  demand  being  made  or   warrant  of  execution   having  
been  executed.  Consequently,   the  applicant  contends  that  the  execution  process  was  
flawed  and  not  compliant  with  the  provisions  of  Rule  45  of  the  Uniform   Rules  of  
this  Court.

[5]	On  receipt  of  the  said  letter   the  applicant  instructed  a  different  firm  of  attorneys  
              to  deal   specifically  with  the  attachment  and  sale  of  the  applicant’s  claim.  These
              attorneys  addressed  a  letter  to  the  1st  respondent’s  attorneys  on  15  January  2013  
              which  reads,  in  part, thus:

              5.1   Paragraph  3 :  “We  attend  only  to  the  matter  relating  to  the  alleged  sale  of  our  
        client’s  right,  title  and  interest  under  case  number  40189/2009   purportedly  sold 
                       in  execution  against  monies  outstanding  under  case  number  22911/2009.  In  this  
        regards  our  client’s  current  attorneys  of  record  Sikhitha  Daniels  and  Associates  
        still  act  as  attorneys  of  record  under  case  number  40189/2009”.

              5.2   Paragraph  4:  “It  is  our  client’s  instructions  that  case  number  40189/2009  has  
                       been  enrolled  for  trial  on  8  February  2013  and  it  is  our  client’s  instructions  that  
                       the  trial  will  proceed  as  such”. 
	
              5.3    Paragraph 5:  “Our  client  place  on  record  that  in  case  number  22911/2009  it  
                       instructed  its  attorneys  of  record  to  withdraw  the  application  and  to  tender  
        costs. In  this  regards  it  was  always  our  client’s  instructions  to  pay  the  costs  after  
        taxed   or  agreed  with  your  client.  It  is  our  client  instructions  that  the  costs  that  
        became   payable  were  indeed  paid.  To  such   an  extent  that  any  further  costs  
        were   outstanding,  our  client  was  not  aware  of  same  and  tenders  payment  of  
        any   and   all  such  costs,  lawfully  owing  and  payable  under  the  tender  of  costs”.

              5.4    Paragraph  7:   “Our  client  is  not  aware  of  any  further  payable  costs  or  steps
         taken  in  execution  of  payment  of  such  costs.  As  such  our  client  is  not  aware  of  
         any  writ  that  was  issued  or  delivered  or  any  claim  for  such  costs”.

               5.5   Paragraph  8:  “It  is  our  instructions  to  refer  you  to  Court  Rule  45(8)(c)(i)(a)  
	         requiring  notice  of  the  attachment  to  interested  parties”. 
	
                5.6   Paragraph  10:   “It  is  our  instructions  that  no  proper  attachment  of  our  client’s  
                         right,  title  and  interest  took  place  and,  therefore,  no  lawful  sale  in  execution  of  
                         same  took  place”.  
	
                5.7   In  paragraph  11  the  applicant  requested  urgent  concession  by  the  1st  respondent  
          by  16h00  on  16  January  2013  that  no  proper  sale  in  execution  of  applicant’s  
          rights, title  and  interest  took  place  failing  which  applicant  will  bring  an  urgent  
          application  for  an  order  setting  aside  the  attachment  and  sale  in  execution.

[6]	In  response,  the  1st  respondent’s  attorneys,  in  a  letter  dated  18  January  2013,  
              declined  to  make  the  concession  and  ostensibly  the  offer  of  payment  stating  that  the  
              trial  matter  was  not  ripe  for  hearing  due  to  the  applicant  having  failed  to  respond  to  
              the  1st respondent’s  notice  in  terms  of  Rule  35(3)  dated  6  April  2011  and  due  to  
              applicant’s  failure  to  serve  amended  pages  subsequent  to  applicant’s  service  of  a  
              notice  to  amend  in  terms  of  Rule  28(1)  on  8  April  2011.  It   is   important  to  state  in  
              this  regard  that  the  1st  respondent,  in  its  answering  affidavit  states  that,  in  addition  
              to  its  unavailability  to  attend  the  applicant’s  requested  pre-trial  conference  in  October  
              2012,  such  conference  was  irrelevant  as  the  applicant’s  right,  title  and  interest  to  the  
              claim  had  already  been  attached  and  sold  in  execution.

[7]	The  applicant  then  launched  this  application  in  terms  of  Rule  6(12)  on  the  25th
               January  2013  and  called  on  the  1st  respondent  to  file  and  serve  its  answering  
               affidavit   by  13h00  on  30th  January  2013.  The   1st  respondent  served  its  answering  
               affidavit  late  in  the  afternoon  of  30  January  2013.  According  to  the  applicant,  service  
               at  that  time  prevented  it  from  preparing,  filing  and  serving  a  replying  affidavit  as  
               well  as  preparing   the  court  file  timeously  for  hearing  on  5th  February  2013.  
               Consequently,  the  application   could  not  be  heard  on  that  date  and  was  removed  
               with  costs  reserved.

[8]	When  the  matter  came  before  me  in  March  2014,  the  following  issues  were  to  be  
               adjudicated  upon:  applicant’s  application  for  an  order  condoning  the  late  filing  of  its 
               replying  affidavit;  whether  demand  for  payment  of  the  taxed  costs  was  made;  
               whether  urgency  existed  justifying  the  launching  of  this  application  in  terms  of  Rule  6   
               (12);  whether  the  process  followed  by  the  1st  respondent,  when  executing  the  writ,  
               was   compliant  with  the  provisions  of  Rule 45  of  the  Uniform  Rules  of  this  court  and,
               in   particularly  whether  a  demand  for  satisfaction  of  a  writ  was  made.  The   applicant 
               contends  that  no  such  demand  was  made  and  submits  that   such  constitutes  non –
               compliance  with  the  provisions  of  Rule  45(3)  and  invalidates  the  attachment  and  sale
              of   its   claim.

[9]	With  regard  to  the  first  issue,  that  is,  the  application  for  an  order  condoning  the  late  
               filing  and  service  of  the  applicant’s  replying  affidavit,  the  1st  respondent’s  counsel  
               advised  the  court  that  1st  respondent  would  not  oppose  the  application.  The  
               application   was   consequently  granted.  

[10]	I  now  turn  to  consider  whether  demand  was  made  for  payment  of  the  taxed  bill  of  
                costs  and  whether  due  demand  for  the  satisfaction  of  the  writ  of  execution  was  
                made  in  accordance  with  Rule  45 (3).  I  deal  with  the  issue  of  the  demand  in  two
                phases  owing  to  the  applicant’s  denial  of  knowledge  of  demand  for  settlement  of
                the  bill of  costs  ever  being  made.  
             
[11]	It  is  clear  from  the  papers  that  prior  to  issuing  the  writ  of  execution,  the  1st  
               respondent  had  made  demands.  Copies  of  such  demands  are  attached  to  the  
              answering   affidavit  as  annexures  AHL4,  AHL5,  AHL7 and  AHL8.  In  the  last  annexure,  a  
              letter  dated  31  March  2011,  demand  is  made  for  settlement  of  the  bill  of  costs  in  
              the   sum of   R20 893.62  and  settlement  of  the  other  bill  of  costs  in  the  sum  of  
              R41 437.80   is   acknowledged.  All   these  letters  were  sent/faxed  to  the  applicant’s  
              attorneys.  The   applicant’s   contention  that  it  had  no  knowledge  of  these  demands  is,  
              consequently,   rejected.

[12]	I  now  consider  the  question  whether  this  application  was  urgent  or  not.  The  
              applicant  alleges  that  it  became  aware  for  the  first  time  of  the  attachment  and  sale  
              in  execution  of  its  claim  in  a  letter  from  1st  respondent’s  attorney  dated  11  January  
              2013,  that  is,  approximately  three  weeks  before  the  hearing   of   its  claim  was  to  
              commence.  The  crucial  question  to  consider,  therefore,  is  whether  the  procedure  laid  
              out  in  Rule  45(3)  was  complied  with  by  the  1st  respondent.  The  gravamen  of  the  
              applicant’s   application  is  that  the  1st  respondent  failed  to  comply  with  the  provisions  
              of  the  said  rule.

[13]	The  above  situation  enjoins  this  court  to  focus  and  determine  all  aspects  of   the  
               attachment   and  to  ultimately  rule  in  respect  of  the  validity   of   the   attachment  of  
               the   applicant’s   claim.  The   circumstances   surrounding  this  aspect  are  set  out  in   the  
               answering   affidavit   and  have  been   summarised  in  the  1st  respondent’s   heads  of  
               arguments   as  follow: 

	13.1      Paragraph  8:  the  Sheriff  was  instructed  to  execute  the  writ  of  execution  at  
                            the  applicant’s  principal  place  of  business  in  Three  Rivers,  Vereeniging.  At  that
                            address  the  Sheriff  was  informed  by  one  Alice  that  the  place  was  the  
                            residential  address  of  M. Detlane.  It  is  to  be  noted  that  the  applicant,  who  is  
                            the   managing director and deponent to the  founding  affidavit,  is  M. Petlane.  It  
                            seems   clear  that there  may   have  been  a  miscommunication   between  the  
                            sheriff  and   the  said  Alice.  Applicant’s   counsel  raised   this  issue  and  1st  
                            respondent’s   counsel  conceded  to  the  possibility  of  a  miscommunication  
                            having   occurred.  In  the  result  the  Sheriff  rendered  a  return  of  non-service.  It  
                            follows,  therefore,  that  no   demand  for  satisfaction  of  the  writ  was  made.  The  
                            court   noted  the  applicant’s  allegation  that  this  address  is  the  same  one  at  
                            which   satisfaction  of  the  first  writ  in  this  case  was  demanded  and  shortly  
                            thereafter   satisfied.

            13.2	In  paragraph  10  the  first  respondent’s  counsel  states  that  the  Sheriff  was  
         	then  instructed  to  execute  the  writ  at  the  registered  address  of  the  applicant  
         	and  “In  doing  so  the  Sheriff  attached  the  applicant’s  right,  title  and  interest  in  
         	and  to  the  claim”.   The  relevant   return  of  service,  annexure  AHL 11,  does  not  
	state  that  no one  was  found  on  the  premises  and/or  that  no  attachable  goods  
	were  pointed  out  or  could  be  found.   “Copy  of  writ  and  inventory  affixed  to  
	registered   address”,  reads  the  return  of  service.  Of  particular  interest  is  that  
the  Sheriff  already  had  the particulars  of  the  applicant’s  claim  giving  the  
                             impression  that  the  Sheriff  was  instructed  to  deviate  from  the  normal  manner  
                             of  executing  a  writ  and  to  attach  a  predetermined  incorporeal  property  of  the  
                             applicant,  namely   claim.  This,   in  my  view,  constitutes  an  irregularity  and  is  
                             inconsistent  with  the   procedure   prescribed   in   Rule  45 (3)  and  thus  warrants  
                             the  setting  aside  of  the  attachment  and  sale  of   the  applicant’s  claim.  The  
                             question  whether  this  court  can  intervene  was   addressed  in  BRUMMER  v  
                             GORFIL  BROTHERS  INVESTMENT  ( PTY)  LTD   EN   ANDERE  1997 (2)  SA  411 (T),  
                             where  Spoelstra  J  stated  thus:  “Where  steps  in  the  process  of  execution  have  
                             been  taken   but  not  completed  –  the  court  can  only  interfere  therewith  in  
                             appropriate  cases  in  the  interest  of  justice.  Where  the  procedure  has  already  
                             been  completed,  the  position  is  different.  The   rights   of  other  persons  are  
                             then  involved.  The   court   can  then  only  interfere  if   there  was  a  reviewable  
                             irregularity   in  the  process   which   prejudiced  the  debtor,  in  other  words,  
                             where  the  process  was  not  carried  out  in  accordance  with  the  provisions   
                             applicable  thereto.”  

[14]	In  my  view  and  in  line  with  my  finding  that  there  was  an  irregularity  in  the  process
           	of  execution,  this  court  can  interfere  in  casu  on  the  basis  of  the  existence  of  the
          	irregularity  and  the  fact  that  there  is  no  third  party,  in  the  ordinary  meaning  of  the
           	word,  involved.  It  is  important  to  state  that  in  the  present  case  the  purchaser  of  the
 	claim,  2nd  respondent,  is  the  marketing  arm  of  the  1st  respondent  and,  consequently,
  	not  a  third  party.  Consequently  no  prejudice  to  a  third  party  is  to  be  considered.
Despite  argument  to  the  contrary  by  respondents’  counsel,  in  my  view,  and  for  all
intents  and  practical  purposes,  the  2nd  respondent  is  an  integral  part  of  the  1st  
respondent  and  it  is  unthinkable  that  the  2nd  respondent  will  pursue  the  claim  against  
its   mother   body.   The  fact  that     the   2nd  respondent  has  a  separate  and  distinct 
company   registration   number  does  not  confer  on  the  2nd  respondent  any  different  
status  to  that  of  being  a  marketing  division  of  the  1st  respondent.  I   find,  therefore,  
that   the  irregularity   marked  a  deviation  from  the  normal  procedure  prescribed  in  
Rule  45(3)  and  warrants  the  setting  aside  of  the  attachment  and  subsequent  sale  of  
the   applicant’s   claim.

[15]       The  respondents’  attorneys  would  reasonably  have  been  expected  to  instruct  the  
 	sheriff   to   return  to  the   business  address  of  the  applicant,  clarify  the  apparent  
 	miscommunication   and   execute  the  writ  normally  more  so  in  that  in  respect  of  the  
               earlier  writ  issued  by  the  same  attorneys,  demand  for  its  satisfaction   was  made
at   that   address   and   was   shortly   thereafter  satisfied.        

[16]	The  second  instruction  on  3rd  September  2012  to  the  Sheriff  “to  demand  satisfaction  
of  the  writ  and  serve  notice  of  the  sale  of  the  claim”  was  clearly  an  attempt  to  
correct  the  earlier  flaw  and  failure  to  follow  due  process;  what  would  have  been  the
reason  for  demanding  satisfaction  of  the   writ  on  3rd  September  2012  when  the  claim  
had  already  been  attached  in  the  Chief  Registrar’s  office  on  16  August  2012 ?   

[17]	There  is  also  a  further  reason  why  this  court  will  set  aside  the  attachment  and  sale
 	of  the  applicant’s  claim,  namely;   prejudice  or  prospective  prejudice  to  the  applicant.
The  following  facts  emerged  from  the  arguments  in  court:  on  learning  that  his  claim
had  been  the  attached  and  sold,  the  applicant,  inter  alia,  offered  to  pay  all  amounts  
outstanding  in  respect of  the  debt  of  R20 893.62.  The  applicant  stated  that  a  sum  of  
R25 000.00  had  already  been  deposited  in  it’s  attorneys’  trust  account  for  settlement 
of  the  debt.  The  1st  respondent  declined  this  offer.  What  concerned  this  court  was  a  
response  by  1st  respondent’s  counsel  that  the  claim  was  bought  for  a  much  lesser  
amount  and  that  the  1st  respondent  intends  to  claim  the  shortfall  from  the  applicant.
Why  would  the  1st  respondent  be  so  eager   to  perpetuate  litigation  when  an  offer  
has  been  made   that  could  bring  to  an  end   the  issue  of  the  attachment  and  
              sale  of  the  applicant’s  claim?   The  existence   of  the   irregularity   and  the  close
              relationship  between  the  1st  and  the  second  respondent  cannot  be  ignored  in  this
              regard.    This  clearly   points  to  an  unjust  prejudice  to  the  applicant  who  would  lose,  
              in  addition  to   the   claim,  the   R25 000.00   it  made   available   to  settle  the  debt.  
              Surely  these   circumstances  warrant    intervention    by  the  court  in  the  interest  of  
              justice. 

[18]       A  third  reason  justifying  the  setting  aside  of  the  attachment  and  sale  in  execution  of
the  applicant’s  claim  and  which  is  of  paramount  importance  is  to  be  found  in  the
provisions  of  Rule  45(1)  and  45(2)  in  terms  whereof  an  attachment  should  be  made
on  a  duly  taxed  bill  of  costs  only  if  it  arose  from  an  order  contained  in  a  judgment,
such  judgment  being  a  prerequisite  for  the  validity  of  the  writ  of  execution  on  which
the  attachment  is  based  [See NU –SHELF  INVESTMENTS  CC  v  BANGAAR  2012(3)  SA 136  
(KZN)  at  137G –H].  It  is  common  cause  in  casu  that  there  was  no  court  order  or  
judgment  validating  the  writ  of  execution.  Consequently,   I   find   that   the  attachment  
and  sale  in   execution  of  the  applicant’s   incorporeal  property  is  invalid  and  the  
subsequent   sale  of  such  right   void.
               
[19]	Further  to  the  above  findings,  I  also  find  that  the  application  for  an  order  setting
aside  the  attachment  and  sale  of  applicant’s  claim  was  indeed  urgent  considering  the
following  :

	 19.1	The  attachment  and  sale  of  applicant’s  claim  was  conveyed  to  it  on  11
January  2013  while  the  hearing  of  that  claim  was  to  commence  on  8  February
2013;

	19.2	The  1st  respondent’s  allegation  that  the  applicant’s  claim  was  not  trial  ready
due  to  the  applicant’s  failure  to  respond  to  a  notice  in  terms  of  Rule  35(3)  
served  on  the	 applicant  on  6th  April  2011  does  not  hold  water  in  that  the
rules  provide  for  the  1st  respondent  to  bring  an  application  to  compel  
compliance   in  such   circumstances.  The   first  respondent  chose  not  to  bring  
that   application  during  the  period   April  2011  to  January 2013;

19.3	The  1st  respondent’s   allegation  that,  having  served  a  notice  to  amend  its  
               claim  on  8th  April  2011,  the  applicant  failed  to  serve  duly  amended  pages  of  
               its  particulars  of  claim.  This   assertion,  correct  as  it  is,  should  never  have  
               been   seen  to  provide  the  1st  respondent  with  reason  not  to  honour  a  
               request  for   pre-trial  conference  to  be  held.  By   its  nature,  a  pre-trial  
               conference  is  meant,  inter  alia,  for   addressing  and  clarifying  issues  to  
               minimise  the  duration  of  the   trial,   including  the  exchange  of    or   request 
               for    information   that  may  be  necessary   for    proper   preparations   for  trial.   
               The  applicant’s  failure  would  have  impacted  on  costs  in   the  event  of   the  
                matter  not  being  able  to  proceed  on  the  8th  February  2013.  The   first  
               respondent’s   assertion   is,  consequently,  rejected.

[20]	Resulting   from   the   above   findings,  the   following   order   is   given:

1.	The  attachment  and  subsequent  sale  of  the  applicant’s  right,  title  and  interest 
 
in  and  to  its  claim  under  case  number  40189/2009  is  hereby  set  aside; 

2.	The  said   right,  title   and   interest  in  and  to  the   claim  is  hereby  declared  to  
               vest   in   the   applicant;

3.	The   application   launched   by  the  applicant  on   the  25th  January  2013   is  

found   to   have   been   urgent;

	4.	The   costs   reserved   in   respect   of   the   urgent   application   on   the   5th  
                             February  2013  are   ordered   payable  by  the  1st  respondent;

	5.	The  1st   respondent   is  further   ordered   to  pay   the  costs   of   this  application.

                                                               	
  MBONGWE, AJ
ACTING   JUDGE   OF   THE   HIGH   COURT
OF SOUTH AFRICA
GAUTENG  LOCAL  DIVISION,  JOHANNESBURG

DATE OF HEARING        :				04 MARCH 2014
DATE OF JUDGMENT    :				1st  APRIL  2014

FOR THE APPLICANT     :				J BROODRYK  
INSTRUCTED BY             :				NEIL  ESTERHUYSEN  &  ASSOC. INCORPORATED
CENTURION	
FOR THE RESPONDENTS:			ADV C.J BRESLER					
INSTRUCTED BY:				CLIFFE  DEKKER  HOFMEYER  INC.
						JOHANNESBURG