NO STRAIGHT-SHOOTER

In failing to discharge his duties ‘honestly and diligently’, a sheriff of the Limpopo court has been found to have prejudiced the legal process

Serious problems in the office of the sheriff serving the high court in Polokwane — highlighted during a recent case — have led a judge of that court to issue a stern rebuke and refer his decision to the board of sheriffs for remedial action.

The case — Interactive Trading 115 CC (IT115) vs the SA Securitisation Programme (SASP) and Sasfin Bank — concerned a judgment against IT115 that the company wanted rescinded, saying it had not been given notice of the matter.

Though there was no dispute that the judgment had been granted in IT115’S absence, counsel for SASP argued that it did not matter if IT115 had been unaware of the proceedings against it, as long as the sheriff had served notice at the official address. It was not a requirement that the notice be served on a person.

However, the court made short work of that argument, saying if no notice had been served on a party, any judgment granted against it in its absence should be set aside.

The court noted that the behaviour of the sheriff required further comment.

Sheriffs are officers of the court who are supposed to perform their duties “honestly and diligently”. Yet, the judge said, “this court is inundated with applications for rescission of judgment” where notice has simply been served by dropping the required document at the gate or door, with a note to the effect that “attempts have been made and no person found”.

Though the sheriff later records that he complied with the rules, it often happens that the party concerned comes to court saying that what the sheriff recorded in the return is not correct.

In this case, IT115 was a 24-hour petrol station with staff always on site. Yet the sheriff noted that he had effected service by “affixing a copy to the principal gate of the residence as the premises remained locked and nobody was present”.

The sheriff also claimed he had tried to serve notice on Barend Schempers, an officer of IT115. But he said he had served notice on one “Freddy Shai”, because Schempers had “moved from the given address — current address unknown”.

Schempers, however, told the court he had not moved, that he still lived at the relevant address and that he did not know Shai.

Clearly the sheriff who prepared these returns of service “did not perform his duties honestly and diligently”, said the court. “These are serious allegations … He failed to do his job, [causing] considerable inconvenience to the court and the litigants.”

As a result, three judges had been involved in the matter and the costs to the litigants were substantial. And all of this could have been avoided.

Selective justice

There was a further matter that the judge picked up on. Schempers said that after he had been officially informed of a judgment against him, he called the sheriff’s office to ask what it was about. He was told that the sheriff had to execute a writ against the property and IT115 had to go to the sheriff’s office to “arrange settlement of the judgment debt”.

The judge said it is not the sheriff’s business to arrange for settlement of judgment debts on behalf of the parties; the sheriff is simply tasked with serving notice and executing warrants.

He said the action in this matter showed that the sheriff’s office treated people differently based on their social, economic or racial classification, despite the law requiring that everyone be treated in the same manner.

“A sheriff’s office is not a negotiating forum where the rich and classy” arrange deals and “subvert court processes” while the poor have “their goods ... removed in the dead of night and ... sold at below market value for no reason other than that they are poor and oftentimes black”.

What happened in this case was a “general dereliction of duty” by the sheriff, he said, and the court registrar should ensure the board of sheriffs receives a copy of the judgment so it can take appropriate action.

‘A sheriff’s office is not a negotiating forum [for] the rich and classy’