The applicant was placed under provisional liquidation on 2 July 2014. Two days later, the first respondent (the Sheriff), pursuant to a writ of execution in case HC 3141/14, removed goods from the applicant's premises. The applicant's provisional liquidator, Christopher Maswi, advised the first respondent that the applicant was under liquidation, but the Sheriff initially refused to accept this without a court order. On 10 July 2014, the liquidator furnished the Sheriff with the court order placing the applicant under provisional liquidation. Despite receiving this order, the Sheriff proceeded to authorize the sale of the applicant's property and placed an advertisement in The Herald newspaper on 18 July 2014 announcing a public auction for 24 July 2014. On 18 July 2014, the applicant wrote to the Sheriff advising him that proceeding with the sale would be unlawful and referred him to section 213 of the Companies Act [Cap 24:03]. The Sheriff persisted in his intention to proceed with the sale, prompting the applicant to file an urgent chamber application on 21 July 2014.
The court granted the application and ordered that the first respondent (the Sheriff) pay the costs of the application on an attorney and client scale.
Once a company is placed under provisional liquidation by court order, section 213 of the Companies Act operates automatically to void any attachment or execution against the company's assets. The commencement of winding up triggers an immediate statutory stay on all executions, and no action or proceeding may be commenced or continued against the company except by leave of the court. A sheriff who proceeds with execution of a judgment against a company in provisional liquidation, despite being furnished with the court order and being advised of the relevant statutory provisions, acts unlawfully and in contempt of court. Court officials have a heightened duty to obey court orders and comply with the law, and their failure to do so warrants punitive costs orders on an attorney and client scale.
The court observed that "but for the conduct of the first respondent, the present application would not have been before it." Mangota J noted that the Sheriff's reasons for disobeying the court order "remain unknown" and that his conduct was "inexcusable." The court remarked that the Sheriff, "more than anyone else, should obey such orders as well as the law" given his role as a senior court official charged with enforcing court orders. The judgment emphasized that the provisions of section 213 are "couched in a very clear and unambiguous language" and that "anyone who disobeys them as the first respondent did in the instant case, does so to his possible detriment." These comments reflect the court's view on the proper conduct expected of court officials and the seriousness with which courts view disobedience of their orders by those who are meant to uphold the administration of justice.
This case is significant in South African (and Zimbabwean) jurisprudence as it reinforces the fundamental principle that court officials, particularly those charged with executing court orders, have an even greater duty to obey court orders and comply with the law. The judgment emphasizes the mandatory nature of section 213 of the Companies Act, which automatically stays all executions and attachments against a company once it enters provisional liquidation. The case demonstrates the courts' willingness to impose punitive costs orders (attorney and client scale) against court officials who flagrantly disregard court orders and clear statutory provisions. It serves as a strong deterrent against abuse of office by sheriffs and other court officials, affirming that their duty to enforce court orders does not exempt them from compliance with other court orders and statutory requirements.