BG Bojosinyane & Associates v Sheriff: Michael Smith and Another

The appellant, BG Bojosinyane & Associates, a firm of attorneys, had an account with the first respondent, the Sheriff of the Magistrate's Court in Vryburg. A dispute arose between them about the reasonableness of the Sheriff's fees. The Sheriff took the position that he would only serve court processes from the appellant upon receipt of upfront payment for his estimated fees. The Sheriff applied to the local Magistrate for authorisation under section 14(7) of the Magistrates' Court Act 32 of 1944 to refuse to serve process from the appellant, but this application was refused on 8 August 2014. The Sheriff then closed the appellant's account and informed them that going forward he would only serve process upon upfront payment. The appellant launched an urgent application in the North-West Division of the High Court, Mahikeng, seeking a mandatory interdict directing the Sheriff to serve court processes emanating from its office without demanding upfront payment. The application was struck off the roll for lack of urgency but proceeded in the normal course. The high court (Leeuw JP) dismissed the application with costs on an attorney and client scale, finding that while the appellant had a clear right, it had not established an imminent threat of irreparable harm and had alternative remedies available. The high court also stated it was unnecessary to determine whether a sheriff is entitled to demand payment before serving process.

• Whether a sheriff is entitled to demand payment of fees and charges upfront before serving or executing court process, in the absence of authorisation under section 14(7) of the Magistrates' Court Act 32 of 1944
• Whether a sheriff is entitled to withhold the return of service until payment of fees and charges specified therein have been paid
• Whether the appellant satisfied the requirements for a final mandatory interdict
• Whether the issue of upfront payment was properly before the high court
• Whether the high court was correct in awarding costs on an attorney and client scale

The appeal was upheld. The order of the high court was set aside and replaced with the following order: (a) Unless authorised by a magistrate in terms of section 14(7) of the Magistrates' Court Act 32 of 1944, the first respondent is directed to effect service and to execute any court process emanating from the office of the applicant without any unreasonable delay; (b) The first respondent is interdicted from requiring payment of any part of his fees or charges in respect of the service or execution of a court process before serving and executing such process; (c) After the service or execution of any court process, the first respondent is directed, without delay and without first requiring prior payment of any part of his fees and charges relating thereto, to return to the applicant and to the court concerned whatever he has done by virtue of such process, specifying his fees and charges on the original and all copies of the returns of service; (d) The first and second respondents were directed to pay the costs of the application and the appeal jointly and severally, the one paying the other to be absolved.

Sheriffs are creatures of statute and have no inherent powers, only those expressly or by necessary implication conferred by statute. In the absence of authorisation from a magistrate under section 14(7) of the Magistrates' Court Act 32 of 1944, a sheriff is not entitled to: (a) refuse to serve or execute court process unless upfront payment of anticipated fees and charges is made; or (b) withhold the return of service until payment of fees and charges specified therein have been paid. The legislative framework, comprising the Magistrates' Court Act, the Magistrates' Court Rules (particularly Rules 8(2), 8(6), 9(17A)(a), and 34), and the Sheriffs Act, requires that: (i) court processes be served or executed "without any unreasonable delay"; (ii) sheriffs specify their charges on the return of service "after service or attempted service"; (iii) returns of service be furnished "without delay"; and (iv) disputes about fees and charges be resolved through taxation after service has been effected. Demanding upfront payment and refusing to serve process or provide returns of service pending payment is inconsistent with this legislative framework, causes unreasonable delays in the administration of justice, and amounts to unlawful self-help. Section 14(7) provides the only statutory mechanism for a sheriff to refuse service in respect of unpaid fees for services rendered more than three months previously, and only upon obtaining prior authorisation from a magistrate.

Makgoka JA observed that the high court's finding that the matter was academic was difficult to understand given the Sheriff's express intention to continue refusing service unless upfront payment was made. An interdict is appropriate not only for present infringement of rights but also when future injury is reasonably feared. Where a wrongful act has already occurred, it must be of a continuing nature or there must be a reasonable apprehension it will be repeated. Makgoka JA also commented that costs on an attorney and client scale are extraordinary orders that should not be easily resorted to, and are only appropriate when special considerations arising from the circumstances or conduct of a party make it just to ensure the other party is not out of pocket. Such orders mark the court's disapproval of a litigant's conduct and should not be granted lightly. Courts look upon such orders with disfavour and are loath to penalise a person who has exercised a right to obtain a judicial decision. Nothing in the case remotely justified such an order. Koen AJA noted that the three-month period in section 14(7) is a reasonable time for disputes regarding quantum of previous fees to be resolved, either by agreement or taxation. The judgment also commented that while there is no similar provision to section 14(7) in the high court, the high court has inherent jurisdiction under section 173 of the Constitution to regulate its own process and develop the common law. Section 43(1) of the Superior Courts Act 10 of 2013 provides for review of a sheriff's refusal to do any act which they are required by law to do. Both judgments emphasized that service and execution of court processes has been described as "the cornerstone of our legal system" and it is in the interests of the administration of justice that courts operate efficiently and without unreasonable or avoidable delays.

This case is significant in South African civil procedure as it definitively clarifies the duties and powers of sheriffs regarding the service and execution of court process. It confirms that sheriffs, as creatures of statute, have no inherent powers and may only exercise powers expressly or by necessary implication conferred upon them by statute. The judgment reinforces the principle that the service and execution of court processes is "the cornerstone of our legal system" and must be conducted without unreasonable delay in the interests of efficient administration of justice and access to courts. It limits sheriffs' ability to refuse service to the specific circumstances outlined in section 14(7) of the Magistrates' Court Act, preventing sheriffs from using demands for upfront payment as a de facto mechanism to refuse service. The case provides important guidance on the interpretation of the Magistrates' Court Rules regarding sheriffs' fees and charges, emphasizing that disputes about fees must be resolved through taxation after service has been effected. It also reinforces principles regarding interdictory relief, particularly that an express intention to continue wrongful conduct constitutes a reasonable apprehension of future harm, and that alternative remedies must be effective legal remedies to bar an interdict. The judgment serves as a reminder that punitive costs orders should not be granted lightly and only when special circumstances warrant marking disapproval of a litigant's conduct.