The Road Accident Fund v The Sheriff: East London and Others

The Road Accident Fund (RAF) was the subject of a default judgment granted on 24 September 2023 for R2,135,218.00 in favor of the second respondent's clients. Following non-payment, a writ of execution was issued on 9 April 2024. On 24 April 2024, the sheriff attached and removed movable property belonging to the RAF. The RAF provided what it claimed was an undertaking in terms of Rule 45(5) of the Uniform Rules of Court, but the sheriff proceeded to remove the movable property nonetheless. The RAF then requested the return of the items, asserting that it had complied with Rule 45(5). The sheriff refused, contending that the undertaking was defective and non-compliant with the rule's requirements. The RAF launched this application challenging the sheriff's decision to attach and remove its movable assets despite the purported undertaking.

• Whether the RAF's undertaking complied with the requirements of Rule 45(5) of the Uniform Rules of Court
• The proper interpretation of Rule 45(5) read with Rule 45(6) and Form 19
• Whether Rule 45(5) requires a third-party surety with sufficient means in addition to the judgment debtor's undertaking
• Whether the sheriff was obliged to leave the attached property simply because an undertaking was provided

The application was dismissed with costs on scale A of Uniform Rule 67A. The court declined to impose punitive costs, noting that the matter involved legitimate questions of legal interpretation.

Rule 45(5) of the Uniform Rules of Court requires both an undertaking by the judgment debtor and a surety from a third party with sufficient means to guarantee payment of the judgment debt. The phrase "person of sufficient means as surety" refers to someone other than the judgment debtor. The purpose of Rule 45(5) is to secure payment of the judgment debt, not merely to ensure the presence of attached goods for sale in execution. An undertaking that does not comply with Form 19 and does not include a third-party surety with sufficient means is defective and does not prevent the sheriff from removing attached property. The sheriff has discretion to determine whether an undertaking is satisfactory and is not obliged to accept a non-compliant undertaking.

The court noted that Rule 45(5) does not halt or suspend the execution process, and that if the RAF wished to stay execution it should have embarked on Rule 45A proceedings instead. The court also observed that when property is attached by the sheriff in execution, a pignus praetorium is created, meaning the goods are placed in custody of the sheriff as an officer of the court. The court declined to address the various points of law raised by the respondents as unnecessary given its findings on the main interpretation issue. The court indicated that a mechanical or narrowly textual approach to statutory interpretation should be avoided in favor of a purposive approach that gives effect to the legislative intention.

This case provides important guidance on the interpretation and application of Rule 45(5) of the Uniform Rules of Court. It clarifies that a judgment debtor cannot simply provide its own undertaking to prevent removal of attached property; the rule requires a third-party surety with sufficient means to guarantee satisfaction of the judgment debt. The judgment emphasizes that Rule 45(5) is designed to secure payment of the debt, not merely to ensure the availability of goods for sale in execution. It also confirms that the sheriff has a discretion in determining whether to accept an undertaking and is not automatically obliged to leave property simply because some form of undertaking has been tendered. The case is significant for execution proceedings and provides clarity on the formal requirements that must be met for a valid Rule 45(5) undertaking, including compliance with Form 19.