On 10 June 2025, summary judgment was granted against the Department on an unopposed basis as it failed to appear or file a resisting affidavit. On 4 July 2025, the first respondent furnished the State Attorney with a copy of the order demanding payment. Payment was not made. On 11 September 2025, the first respondent obtained a writ of execution from the registrar. The Sheriff attended the Department's premises on 18 September 2025 and made attachments, returning on 15 October 2025 to make further attachments. The Department launched these proceedings on 20 October 2025 seeking to set aside the writ and attachments. The Department explained there was a disconnect between it and the State Attorney - the Department gave instructions to defend and bring rescission proceedings but the State Attorney did not act. The Department was compelled to appoint its own attorneys after a procurement process. Critically, the first respondent did not serve the court order on the executive authority, accounting officer of the Department, or the relevant treasury as required by section 3(4) of the State Liability Act, 1957 before obtaining the writ of execution.
The writ of execution of 11 September 2025 together with any consequent attachment of the property of the applicant is declared invalid and is set aside. The first respondent is to pay the costs of the application on a party and party scale, with the costs of one counsel on Scale B.
Section 3(4) of the State Liability Act, 1957 is peremptory and must be complied with by a judgment creditor before approaching the registrar for a writ of execution under section 3(6). The service of the court order on the executive authority, accounting officer and relevant treasury as required by section 3(4) is a jurisdictional prerequisite to obtaining a writ of execution. The use of 'may' in section 3(4) does not render compliance optional - it merely gives the judgment creditor discretion whether to pursue execution proceedings at all, but if they choose to do so, they must comply with section 3(4). A writ of execution issued without such compliance is invalid and must be set aside, along with any consequent attachments of state property.
The court observed that the failure of the State Attorney to discharge obligations under section 3(2) does not excuse a judgment creditor from complying with section 3(4) - in fact, such failure makes compliance with section 3(4) all the more important to ensure the relevant functionaries are notified. The court noted difficulties with the argument regarding the proviso to section 3(6) concerning judgments by default, including that it was somewhat cynical for the first respondent to raise what the registrar considered when the first respondent had admittedly not served the required parties. The court also questioned whether the registrar is ordinarily a necessary party to proceedings challenging a writ of execution, noting the registrar was not joined in the Tsoga Developers Constitutional Court case where similar issues were raised. The court noted that had there not been a disconnect between the Department and the State Attorney, these proceedings likely would not have materialized, which influenced the decision not to award punitive costs.
This case provides important clarification on the proper interpretation and application of section 3 of the State Liability Act, 1957, particularly section 3(4). It confirms that compliance with section 3(4) - including service of the court order on the executive authority, accounting officer and relevant treasury - is a mandatory jurisdictional prerequisite before a judgment creditor can obtain a writ of execution against state property under section 3(6). The judgment reinforces the principle that attachment of state property should be a last resort and that the State must be afforded the statutory opportunities to satisfy judgment debts before its property is subjected to execution. The case also clarifies that the word 'may' in section 3(4) is permissive only as to whether the creditor chooses to pursue execution at all, not as to whether compliance with the subsection is optional if execution is pursued. This interpretation aligns with the Constitutional Court's emphasis in Nyathi on enabling execution against the state while providing appropriate procedural safeguards.