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  [REPORTABLE]

Case no: 156/18

In the matter between:

NCEDILE NELSON NTSIBANTU                                                                              Applicant

and

THE MINISTER OF JUSTICE

AND CORRECTIONAL SERVICES                                                            First Respondent

THE SOUTH AFRICAN BOARD

OF SHERIFFS                                                                                       Second Respondent

REASONS (DELIVERED ON 26 APRIL 2018)

SHER, J:

1. This matter came before me as an urgent application. The central question which it posed was whether the court was empowered to make an order directing the South African Board of Sheriffs (hereinafter the “Board”) to issue a ‘provisional’ fidelity fund certificate to the applicant, who was at the time the Sheriff of the High and Lower Courts for Cape Town West, pending the outcome of a review of the  Board’s refusal to provide him with a fidelity fund certificate for 2018.

2. In addition, the applicant sought an interim order interdicting the hand-over of his functions, records and the monies and goods held by him under judicial attachment, to one Van Greunen, who was appointed in his place as Acting Sheriff for the time being by the Deputy Minister of Justice and Correctional Services on 23 December 2017. 

3. As the court had a number of other matters to adjudicate on the day, after hearing argument I simply made an Order in terms of which I dismissed the application with costs and advised the parties that reasons would be provided in due course, if these were requested. The Board has now requested such reasons and has furnished the court with a transcript of the proceedings of the arguments that were advanced on the day, for which the court wishes to extend its appreciation.  

The background

4. The applicant was appointed Sheriff for the Cape Town West area during 2013. In November 2016 the Board received complaints from a number of attorneys in regard to certain questionable transactions on his trust account.

5. On 8 December 2016 the Board informed him it had received a qualified audit report which indicated that he had failed to comply with s 23(1)(a) of the Sheriffs Act[1] in that he had not kept a proper accounting record of monies received by him in trust and had also not kept proper trust accounts as required.[2] The Board pointed out that an inspection of his books of account had confirmed there were gross irregularities as a result of which it had made application for an order that his bank accounts be frozen and that he provide his bank records.

6. The Board noted that the applicant had wrongly received trust monies into his business account instead of his trust account and had also made certain ‘special’ investments from his business bank account, of trust monies which were deposited therein. These ‘special’ investments were made into bank accounts which contained no reference to s 22(2)(a) of the Act and were thus unprotected. Consequently, the applicant was called upon[3] to submit to the auditors his complete financial records for the period 1 March 2015 to 28 February 2016 so that they could conduct a proper audit and submit a full report thereon to the Board.

7. The Board ended its letter by stating that in the circumstances the applicant was disqualified in terms of s 33(1)(i) read together with s 23(1)(b) of the Act from obtaining a fidelity fund certificate as he had failed to have the trust and interest-bearing accounts which he kept, audited at least once during the preceding year. Consequently, the Board indicated that it would not be issuing a fidelity fund certificate to the applicant for 2017, until such time as he had rectified his non-compliance. The Board maintained its stance subsequent to the receipt of a further audit report which the applicant obtained on 26 December 2016, which confirmed that he had failed to comply with the aforesaid provisions.

8. Pursuant to this the applicant launched an urgent application[4] in which he sought an order reviewing the decision of the board to refuse to issue him a fidelity fund certificate for 2017 and an order that it be directed to issue a ‘provisional’ certificate pendente lite. An interim order to this effect was granted on 13 January 2017.

9. On 22 March 2017 the Board gave the applicant notice that it intended to charge him with various instances of improper conduct[5] and it offered him an opportunity to provide a response thereto, if any, but the applicant declined the invitation. Instead his attorneys addressed a letter to the Board in which further particulars to the proposed charges were requested. A year later, disciplinary proceedings in respect of these charges are apparently still underway. Presumably the delay is attributable to the fact that the charges were contingent upon the review which was pending at the time.  

10. Whilst awaiting the outcome of the review the applicant made no attempts to rectify his non-compliance with the Act as per the Board’s letter of 8 December 2016 and on 26 October 2017 he again applied for a fidelity fund certificate, this time for the 2018 year. Given that he was in possession of a ‘provisional’ certificate which had been issued to him pursuant to the court’s order in January 2017 he presumably saw no need to do anything in this regard, as the certificate allowed him to continue operating as a sheriff without restriction, as before. 

11. On 18 December 2017 judgment was handed down[6] in the review application[7]. The court held that inasmuch as according to his own auditors’ report(s) the applicant had failed to keep separate trust and interest-bearing accounts as required[8] he could not have complied with the provisions of s 23(1)(b) as he could not properly have caused ‘separate’ records of such accounts (into which monies were deposited or invested and from which payments were made out), to have been audited within the preceding year. It held that in the circumstances the peremptory provisions[9] of the Act precluded the Board from issuing a fidelity fund certificate as the applicant was disqualified at the time when he applied for it.

12. In comments which the court made obiter it did not endorse the approach adopted by the judge who had granted the interim order in January 2017 viz that as long as the applicant submitted his records to audit this was sufficient for the purpose of compliance with the provisions of s 23(1)(b) and if there were any deficiencies identified in the subsequent audit report this was something that could lead to disciplinary action being taken against the applicant but would not disqualify him from obtaining a fidelity fund certificate. The review court was of the view that the remarks which were made by the judge who granted the interim order were made in circumstances where he had not had the benefit of full argument.

13. The day after judgment was handed down in the review application the Board and its attorneys addressed a number of letters to the applicant. The first dealt with the issue of formal compliance in regard to the application which had been lodged for the issue of a fidelity fund certificate for 2018. The Board pointed out that the applicant had not properly filled in the requisite forms and had short-paid the interest he had earned on his trust account and it called upon him to rectify these defects before 22 December 2017. It further pointed out that the applicant had failed to provide a complete and proper record of bank statements for his trust account for the preceding 12 months, despite being called upon to do so.

14. In its remaining letters the Board and its attorneys pointed out that inasmuch as the review had failed, the ‘provisional’ fidelity fund certificate which had been issued to the applicant was no longer in force. In addition, the Board again expressed the view that as the applicant had not yet attended to the issues raised in its letter of 8 December 2016 he remained in default of the relevant provisions of the Act and as such it would not be issuing him with a fidelity fund certificate for 2018.

15. On 23 December 2017 the Deputy Minister addressed a letter to the applicant  in which he was informed that as he was no longer the holder of a fidelity fund certificate and was therefore by law not allowed to perform the functions of a sheriff, Mr Van Greunen (who at the time was the Sheriff for Goodwood ) had been appointed to act in his stead until he was able to resume his duties.

16. On 27 December the Board addressed a further correspondence to the applicant in which it again reminded him that he had not attended to its outstanding complaints from the previous year. However, in the event that unbeknown to it he had addressed the issues raised by it in the interim he was asked to advise the Board of this, whereupon it would arrange for a further inspection of his records in order to verify his compliance. Importantly, the Board also pointed out that notwithstanding his non-compliance he was at liberty to make application for a special dispensation in terms of s 33(2) for the issue of an interim fidelity fund certificate. Finally, it pointed out that he had still not provided a written response to the proposed charges which it intended to prefer against him.

17. In his response the applicant alleged that he had duly complied with all outstanding issues and as far as the charges were concerned he said that he was still awaiting the further particulars which had been requested and once these were provided he would be in a better position to consider what response, if any, he was to make thereto. For the sake of completeness it may be pointed out that in its answering papers the Board denies that the applicant ever made good his initial failure to comply with the Act, and on the basis of the accepted and trite test in opposed applications the court was bound to accept this averment and to decide the matter on the basis that the applicant had not purged himself and was still in default.    

18. On 28 December the applicant confirmed receipt of the Minister’s letter and indicated that he was in the process of completing the necessary handover forms and would be closing his trust account and transferring the monies standing to the credit thereof to the Board’s account. Subsequently, arrangements were made for a formal handover to take place on 9 January 2018 but on the eve thereof the applicant’s attorneys addressed a letter to the Board demanding that it agree to staying the process and to issuing the applicant with a ‘provisional’ certificate for 2018 failing which application would again be made to court for such an order.

An evaluation

i) The parties’ contentions as to the meaning of s 33(1)(i)

19. The applicant contended that the provisions of s 33(1)(i), read literally, only allowed  the Board to refuse to issue him a fidelity fund certificate in respect of a failure to comply with s 23(1)(b) in the immediately preceding year, and it therefore could not rely on his alleged non-compliance as outlined in its letter of 8 December 2016 in order to refuse him a certificate for 2018, as such non-compliance related to the February 2016 tax year (ie the period between 1 March 2015 and 27 February 2016) and not to the year preceding 26 October 2017, being the date when he applied for the 2018 certificate. According to the applicant therefore his initial disqualification in December 2016 had ‘lapsed’ due to the effluxion of time and was no longer operative at the time when he made application on 26 October 2017 to be issued with a fidelity fund certificate for 2018.

20. The logical consequence of the applicant’s interpretation of the relevant provisions would be that a sheriff who defaults in his obligation to keep separate books of account and to have such accounts audited once annually, could simply delay rectifying his non-compliance for more than a year and then apply for the issue of a fidelity fund certificate for the following year, at which time he could say that the Board was not entitled to have regard for his prior failure to comply with his legislative obligations when considering whether or not to issue him with a subsequent certificate. To my mind this could hardly have been what was intended by the legislature.

21. Such an approach would make a mockery of the legislative attempt to enforce annual compliance with accounting fundamentals by sheriffs in order to ensure their continued probity, and thereby protect the legal system and members of the public who rely on sheriffs for the service of process and the enforcement and execution of judgments granted by the courts. Without an annual check, by means of a satisfactory audit, that sheriffs are keeping to the straight and narrow as far as the assets and monies which they hold under attachment on behalf of judgment creditors is concerned the temptation to enrich themselves and to profiteer from their activities may, for some, be too much to resist. And without such an audit of their financial affairs which allows for a proper and transparent annual reconciliation of their receipts (and the interest earned thereon) and the fees and expenses they have debited, by the time any theft or misappropriation which may have occurred comes to light it may be of such magnitude as to have a major impact on the Sheriff’s Fidelity Fund, which is required by law[10] to make good any losses suffered by any person in respect of a failure on the part of a sheriff to pay out or to deliver any money or property held under attachment, or the proceeds of the sale of any such property.      

22. On the other hand, the respondents adopted the attitude that the operative dates for the purposes of determining the preceding year period referred to in the disqualifying provision[11] were 8 December 2016 when the Board initially notified the applicant that he had failed to comply with ss 23(1)(a) and (b) of the Act and 26 December 2016, when his auditors confirmed earlier instances of such non-compliance. In my view, such an interpretation of s 33(1(i) might equally be an artificial and strained one. It could lead to a situation where a sheriff might be disqualified unfairly, at a time when he was in fact compliant, for an accounting breach which occurred more than a year before. This too would hardly accord with the legislature’s intention.

23. However, it was not necessary to pronounce definitively on these differing interpretations of the legislative provisions in question. This was because in my view the applicant failed substantially to make out a case for the relief he sought.

ii) Ad the interdict   

24. It was trite that in order to obtain an interim interdict the applicant needed to show that he had at least a prima facie right which was established, albeit open to some doubt, a well-grounded apprehension of irreparable harm in the event that the interdict was not granted to him, and that the balance of convenience was in his favour and there was no other alternative, satisfactory remedy open to him. In my view the applicant failed in respect of each of these requirements.

25. It was accepted by the applicant that the ‘provisional’ certificate which had been granted to him by the Board (in compliance with the court order to this effect in January 2017), was only in force pending the outcome of the review application which he had launched. It follows that once that application failed upon the dismissal thereof on 18 December 2017, the applicant was barred by virtue of the provisions of s 30(1)(a) of the Act from performing any functions as a sheriff.

26. The decision of the review court was not taken on appeal, and on 23 December 2017 the applicant was informed that as he was no longer the holder of a fidelity fund certificate and was therefore by law not allowed to perform the functions of a sheriff the Minister had decided to appoint a temporary substitute to act in his stead. That appointment was made in terms of s 5(1)(a)(i) of the Act, which provides that when a sheriff is unable to perform his functions the Minister may appoint a suitable person to act in his place, until he is able to resume his functions. It was not suggested by the applicant that the Minister’s appointment was defective in any way, and it was common cause that it was only the Board’s decision to refuse to grant the applicant a fidelity fund certificate for 2018 which the applicant intended to review, and not the appointment of his substitute. In the circumstances the applicant’s counsel conceded during argument that the applicant had no right, even on a prima facie basis, to interdict the hand-over of his functions and the assets and monies under his control, to his temporary successor. In the absence of proof of such a right the applicant could thus obviously not succeed in regard to the remaining requirements for an interdict.

27. But insofar as may be necessary I may state that as far as the remaining requirements for the grant of an interim interdict are concerned there was similarly no case made out.  That then as far as the relief which was sought in paragraph 2 of the notice of motion.

iii) Ad the order directing the issue of a ‘provisional’ fidelity fund certificate   

28. On what basis in law the court granted the applicant an order in January 2017 whereby it directed the Board to issue him with a ‘provisional’ fidelity fund certificate for 2017, is not clear, and it was conceded by counsel that there was no legislative provision in the Act which expressly empowered the court to do so. The best that counsel could do was to submit that such an order could be made in terms of the court’s ‘inherent’ jurisdiction. But of course, as is trite, the court’s power in this regard is limited to the regulation of its own process.[12] It does not extend to a general power at common law to make orders on matters which are regulated by statute and which fall within the domain of an administrative entity such as the Board, which is a statutorily established regulatory body[13] which has as amongst its objects the maintenance of the esteem of, and the improvement of the  functions performed by, sheriffs. It is the Board upon whom the legislature has conferred[14] the power to issue fidelity fund certificates, and not the courts, and the courts should respect this lest they make themselves guilty of over-reaching.    

29. If one considers the relevant provisions which confer upon the Board the power to issue such certificates it is apparent that they are not there to be granted simply for the asking and the Board is required to consider a number of issues before doing so. In this regard it has to be satisfied upon due consideration of an application for the issue of a fidelity fund certificate (the Act does not appear to make any distinction between an initial application for the issue of a fidelity fund certificate and a subsequent application for the renewal thereof), that the sheriff is a ‘suitable’ person to hold such a certificate.[15] To be so satisfied it is required to satisfy itself that the sheriff is not subject to any of a number of disqualifying factors which are set out in s 33. In this regard the section provides that the applicant must comply with a range of requirements pertaining to citizenship and permanent residence,[16] age,[17] solvency,[18] mental status[19] qualifications and experience[20] and to having a ‘clean record’.[21] In addition, the Regulations relating to Sheriffs[22] provide that no person shall be appointed as a sheriff unless he or she is a “fit and proper person“[23] who is competent to conduct the business of a sheriff and to this end has at least an appropriate tertiary qualification,[24] an “understanding” of civil law[25] and knowledge and understanding of ‘relevant aspects’ of the Constitution as well as a range of other statutory provisions and rules of court.[26] When making application for the position the applicant is required[27] to include copies of his/her educational qualifications, certificates of service and testimonials and contact details of two referees, as well as a statement of assets and liabilities.[28] In addition, the Board may not issue a fidelity fund certificate to a sheriff if he or she has not obtained professional indemnity insurance which is sufficient to cover any liability which they might incur in the course of discharging their functions.[29] 

30. The onerous disclosures which an applicant must make in terms of the Regulations[30] when first applying for the position of sheriff, particularly those in regard to whether he/she has ever been dismissed for improper conduct involving a breach of trust, has ever been convicted of an offence involving dishonesty,[31] and has ever been declared insolvent or had a fidelity fund certificate cancelled, must be repeated annually each time when the applicant applies for the renewal of his/her fidelity fund certificate.[32]

31. Furthermore,  in order to obtain the renewal of a fidelity fund certificate the sheriff is required to provide an audit report from a qualified auditor, for each financial year.[33] In terms of the Regulations[34] the auditor must be independent and must state in his/her report[35] that the audit was conducted in accordance with generally accepted auditing standards and in such a manner as to obtain a reasonable assurance that the sheriff has duly complied with ss 22 and 23(1)(a) of the Act.

32. The report must pertinently state[36] that the audit included an evaluation of the effectiveness of the sheriff’s accounting controls and an examination, on a test basis, of the evidence in support of the amounts and disclosures included in the accounting records relating to trust monies, as well as an evaluation of the appropriateness of the overall presentation of accounting records relating to such monies. It must confirm[37] that the auditor tested the system employed to transfer amounts (including interest earned) from the sheriff’s trust account to his business account and that whenever any such transfer was made the balance remaining to the credit of the trust account and any savings or other interest-bearing account, together with any trust monies held as cash on hand, was not less than the “trust balances”(sic). In addition, the report must confirm that the total amount standing to the credit of the trust account and any savings or other interest-bearing accounts kept by the sheriff, together with any trust monies which according to the sheriff’s accounting records were held as cash on hand, was sufficient to cover the trust balance as at year end.[38]

33. Finally, the report must state[39] whether in light of the audit findings the auditor is of the opinion that the sheriff duly complied with the provisions of ss 22 and 23(1)(a) of the Act during the year under review.

34. In the circumstances, it is clear that what is required in order to obtain the renewal of a fidelity fund certificate is in fact an unqualified audit opinion and not just a report that the sheriff duly submitted his records, deficient as they might be, to audit.

35. In the result, as the review court also did (albeit that in its case this was obiter), I respectfully disagree with the comments made by the judge who granted the  interim order in January 2017 whereby the Board was directed to issue the applicant with a ‘provisional’ fidelity fund certificate. In this regard, as has been previously pointed out the court expressed the view that s 23(1)(b) of the Act did not require a sheriff to produce an unqualified auditor’s report but merely to submit his records to audit, and the subsequent furnishing of an audit report in terms of   s 23(2) would serve as confirmation that the sheriff’s obligation in terms of s 22(1)(b) had been discharged and if there were any deficiencies in the report this was a matter which could give rise to disciplinary proceedings, but could not serve to bar the sheriff from obtaining a renewal of his/her fidelity fund certificate.

36. It is so that on a literal reading of the bland provisions of s ss 23(1)(a) and (b) only it would seem as if the sheriff would discharge his statutory obligations simply by causing the records of his trust and interest-bearing accounts to be audited once annually. But these provisions must not be considered in isolation and are to be read contextually with the contents of subsection (2) and Regulation 9 and Form 7 which as was explained above[40] give flesh and effect to the section by requiring the auditors to furnish the Board with a report of their findings in which they certify that they have tested the sheriff’s accounting system in a number of respects, and that it adequately provided for the maintenance at all times of a credit balance on the sheriff’s trust account. In the circumstances, where an auditor issues a report which is qualified (in regard to the specific issues he is required to report on in terms of the Regulation and Form 7 and in respect of which compliance with the prescribed requirements needed to be confirmed), the sheriff will not have complied with the provisions of s 23(1)(b) of the Act and will not be entitled to be issued with a fidelity fund certificate. On this ground alone therefore, given that the applicant was according to the Board still in default of compliance as at December 2017 this court would not have been entitled to direct the Board to issue the applicant with a fidelity fund certificate for 2018.

37. The immediate further question which arose from this was whether the court was nonetheless entitled to direct the Board to issue a ‘provisional’ certificate, pending the outcome of the pending review or some other process[41]. In my view, this was also not something which the court was at liberty to do.

38. In the first place, as I have previously pointed out, in terms of the Act it is the Board which is empowered to issue fidelity fund certificates, and not the courts, and in considering whether or not to grant such a certificate the Board is required to take into account a number of factors, many of which will only become known to it after it has processed the information which is set out in the contents of the relevant Forms[42] and supporting documentation which is to be submitted by the applicant, including the auditor’s report, and the Board has made such further enquiries or called for such further documentation eg financial records, as may be necessary. These are ordinarily not matters which a court will be able to attend to, as it is confined to what is contained in the affidavits which are before it.

39. In addition, it is further clear from the general scheme of the Act that it lies within the discretion[43] of the Board to determine whether an applicant who seeks the issue of a fidelity fund certificate or the renewal thereof, is a ‘suitable’ candidate therefor, in that he/she possesses the necessary competence and formal professional and educational qualifications and has complied with the necessary accounting and other requirements of probity and is thus a ‘fit and proper’ person to whom such a certificate should be granted. The issue of such a certificate constitutes, in effect, a certification by the Board to the public at large that the holder thereof is competent and may be trusted and that in the event that he/she were to make themselves guilty of some misconduct, misappropriation or culpable neglect which results in loss, either their personal professional indemnity insurance or the Sheriff’s Fidelity Fund will make good such loss. As such, a fidelity fund certificate is not something which is to be granted lightly, or in circumstances where there is a question mark as to the honesty or integrity of a sheriff.

40. In the circumstances, save in certain limited instances such as where for example it is common cause that an applicant for a fidelity fund certificate has duly complied with all the necessary formal, professional, educational, accounting and other requirements of probity referred to, and was clearly considered by the Board to be a fit and suitable person to hold such a certificate and its refusal to issue or renew such a certificate was motivated simply by considerations of malice or bad faith, or dereliction of duty, and not by any legitimate non-compliance or default on the part of the applicant, a court should not be making orders directing the Board to issue the applicant with such a certificate[44] even if this were only to be a so-called ‘provisional certificate, as it would be treading into terrain which lies within the Board’s province, where it is required to make a value-based decision after weighing up a number of considerations.

41. The Act provides[45] that a fidelity fund certificate which is issued to a sheriff[46] shall be valid until 31 December of the year in respect of which it has been issued. The effect of this provision is that even were the court to be minded and at liberty to grant an Order directing the Board to issue such a certificate, this could in any event not be an Order in the terms sought in the notice of motion ie that the certificate should be issued (and be in effect) pending the outcome of a review which was to be launched, which would ordinarily take more than a year to be finally determined. The best that the court could do for an applicant would be to direct that the Board issue a certificate which would be in effect for the remainder of the calendar year in which the application is brought ie until 31 December. On this ground too, the relief which was sought in the notice of motion could never have been granted.

42. There is one further important legislative provision which lends force to the conclusion that a court is not able to make an Order directing the Board to issue a ‘provisional’ certificate.[47] In this regard s 33(2) provides that notwithstanding that a sheriff may be disqualified in that he does not satisfy any one or more of the various requirements set out in s 33(1), the Board may nonetheless issue him with a fidelity fund certificate on such conditions as it may determine with the concurrence of the Minister, after having due regard for the relevant considerations, if it is satisfied that it is in the “interests of fairness” to the applicant to do so. Once again, this involves the Board in a value-weighted exercise, which it needs to undertake before determining whether or not to grant a sheriff an indulgence, as a special dispensation. As such, the court should respect the Board’s functions and powers in this regard, by leaving it up to the Board to decide on whether or not to grant an applicant such assistance, on proper application made to it by the applicant. By making an Order directing the Board to issue a non-compliant sheriff with a renewal certificate the court may effectively be usurping the Board’s powers and emasculating it from carrying out its legislative functions, and it may perversely have the opposite effect of what the Act is aimed at achieving viz adherence by sheriffs to a system of control and regulation by the Board. This was vividly illustrated by the facts in this matter where by making an Order that the Board should issue the applicant with a ‘provisional’ fidelity fund certificate the court effectively gave the applicant a ‘free pass’ ie a licence to continue operating as a sheriff for the rest of the year, without the need to regularise his non-compliance.  

43. In the circumstances, and for the reasons set out in the preceding paragraphs I was of the view that the applicant had also not made out a case for the relief which he sought in paragraph 1 of the notice of motion. In my view, instead of seeking an Order directing the Board to issue him with a ‘provisional’ fidelity fund certificate the proper course of action for the applicant to have followed was to have made application to the Board in terms of s 33(2) for the issue of an interim or ‘provisional’ certificate, pending the regularisation of his affairs, on such terms and conditions as the Board and the Minister might deem to be appropriate.

In the result, the application was dismissed, with costs.

SHER J

Attendances:

Heard: 22 January 2018

Reasons requested: 28 February 2018

Delivery of transcript of proceedings: 22 March 2018

 

Appearances:

Applicant: Adv A Njeza

Instructed by: Tshepo Sikopela Attorneys, Cape Town

Respondents: Adv I Jamie SC

Instructed by: Herold Gie Attorneys, Cape Town  

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