BG Bojosinyane & Associates v Sheriff: Michael Smith and Another

The appellant, a firm of attorneys, regularly required the services of the sheriff of the Magistrate’s Court, Vryburg. The sheriff adopted a practice of demanding upfront payment of estimated fees before serving or executing court processes and, in some instances, withheld returns of service until payment of his fees was made. This practice caused delays in service and execution of court processes. The appellant brought an application in the High Court seeking to compel the sheriff to serve and execute process without unreasonable delay and without demanding advance payment. The High Court dismissed the application, holding that the requirements for a mandatory interdict were not met and declined to decide whether the sheriff was entitled to demand upfront payment. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and replaced with an order directing the sheriff to serve and execute court processes without unreasonable delay, interdicted him from demanding upfront payment of fees before service or execution, and directing him to provide returns of service without delay and without requiring prior payment. The first and second respondents were ordered to pay the costs of both the application and the appeal jointly and severally.

This judgment clarifies that sheriffs may not demand upfront payment of anticipated fees or withhold returns of service pending payment, unless authorised by a magistrate under section 14(7) of the Magistrates’ Court Act. It reinforces access to courts, the expeditious administration of justice, and the principle that statutory officials must act strictly within their legislated powers. The case is an important authority on the duties of sheriffs and the proper mechanism for resolving fee disputes through taxation.