THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1072/2022
In the matter between:
BG BOJOSINYANE & ASSOCIATES

APPELLANT
and
SHERIFF: MICHAEL SMITH

FIRST RESPONDENT

SOUTH AFRICAN BOARD FOR SHERIFFS

SECOND RESPONDENT
Neutral citation:
BG Bojosinyane & Associates v Sheriff: Smith and Another (1072/22)
[2023] ZASCA 174 (8 December 2023)
Coram:
MAKGOKA, MATOJANE AND WEINER JJA AND KOEN AND CHETTY
AJJA
Heard:
9 November 2023
Delivered:
This judgment was handed down electronically by circulation to the parties’
legal representatives by email publication on the Supreme Court of Appeal website and
by release to SAFLII. The date and time for hand-down is deemed to be 11H00 on 8
December 2023.
Summary:
Civil procedure – Magistrates’ Court Act 32 of 1944 and Rules – sheriffs’
fees and charges – whether sheriff entitled to demand payment of fees and charges
before services rendered.

ORDER

On appeal from: North-West Division of the High Court, Mahikeng (Leeuw JP sitting as
court of first instance):
1.
The appeal is upheld;
2.
The first and second respondents are directed to pay the costs of the appeal jointly
and severally, the one paying the other to be absolved;
3.
The order of the high court is 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 in
paragraph (a) above before serving and executing such process;
(c)
After the service or execution of any court process referred to in paragraph
(a) above, 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 are directed to pay the costs of the
application jointly and severally, the one paying the other to be absolved.’

JUDGMENT

Koen AJA (Matojane and Weiner JJA and Chetty AJA concurring):
[1] This appeal raises the following issues for decision:
(a)
whether the relief claimed before the North-West Division of the High Court,
Mahikeng (the high court) included a determination of the issues in paragraph (b) below;
if so
(b)
whether, unless excused by an authorisation granted by a magistrate in terms of
s14(7) of the Magistrates’ Court Act 32 of 1944 (the Act), a sheriff is entitled to refuse to
serve or execute a court process unless a deposit in respect of the sheriff’s fees and
charges relating thereto is paid upfront, allied to which is whether once the process is
served or executed, a sheriff is entitled to withhold the return of service until payment of
his fees and charges specified therein have been paid; and
(c)
whether a mandatory interdict to give effect to the determination of the issues in
(b) above should have been granted.

[2] The appellant, BG Bojosinyane and Associates, a firm of attorneys, launched an
urgent1 application in the high court against the first respondent, the sheriff of the
magistrate’s court, Vryburg, claiming the following relief in its notice of application:
‘THAT [the first respondent] is compelled and directed to effect service and/or execute the process
of the court, emanating from the office of [the appellant] upon the mentioned or cited party or
person stated therein without any avoidable or unreasonable delay and accordingly notify the
[appellant] and return to court whatever he has done by virtue thereof [specifying]  the total amount
of his or her charges on the original and the copies of the return of service.’
The relief claimed was opposed by the first respondent and the second respondent, the
South African Board for Sheriffs.2

1 The first respondent raised the lack of urgency as a first point in limine in the application. The application
was struck off the roll at the first appearance on 19 September 2019 for lack of urgency. The matter
thereafter proceeded in accordance with the provisions of the Uniform Rules of Court.
2 The second respondent is a statutory body established in terms of section 7 of the Sheriff’s Act 90 of
1986. It was not initially a party to the application before the high court but was joined as the second

[3] As the basis for the relief claimed, the deponent to the founding affidavit, Mr Boemo
Granch Bojosinyane (Mr Bojosinyane), explained that the first respondent demanded and
continued to demand exorbitant fees from the appellant ‘before he [would] effect service
of any civil process sued out by [the appellant], which conduct is contrary to the procedure
laid down by the Magistrates’ Courts Rules of Court, Magistrates’ Courts Act, Uniform
Rules of the above Honourable Court and the Sheriff’s Act.’ He complained that this
resulted in ‘unnecessary and uncalled for arguments and disputes (which) inevitably lead
to excessive delay to serve [the appellant’s] documents or process, or at times such
documents are not being served at all as in the present case.’ (Emphasis added.)

[4] Mr Bojosinyane illustrated the appellant’s complaint with reference to the following
matters where the appellant had required the first respondent’s services:
(a)
In OA Phora v MM Phora, a summons was sent to the first respondent on 1 July
2019. On 9 July 2019 the first respondent demanded payment of the sum of R354.25
before he would effect service of the summons on the defendant. An enquiry as to how
that amount was arrived at resulted in a revised estimate of R441.31 being provided on
11 July 2019. The appellant then adjusted the estimate to R208.80 which it determined
was a reasonable fee, which was deposited into the first respondent’s bank account. The
summons was served on 19 July 2019. On 25 July the first respondent rendered an
account for R399.68, leaving a shortfall of R190.88. The first respondent withheld the
return of service until payment was made;
(b)
In BG Bojosinyane v Isang Nakale Inc a warrant of execution was sent to the first
respondent on receipt of which he ‘as usual demanded prior payment’ of the sum of
R1 000 from the appellant on 22 June 2018. The appellant in a letter dated 26 June 2018
claimed that this amount was excessive. The return of service eventually rendered
reflects that an attempt was made to execute the warrant on 20 August 2018, but that it
could not be executed. The fees charged per the return totalled R1 266.27. The first
respondent’s charges were paid directly by the execution debtor.

respondent on 3 December 2020 well before judgment was delivered on 15 April 2021. The second
respondent applied for condonation for the late filing of its heads of argument in the appeal, which was
granted unopposed.

(c)
In BG Bojosinyane v K Letsapa, the first respondent on 16 May 2018 and 17
August 2018 respectively demanded payment of the sum of R230.81 each for service of
a summons and a notice to show cause, in each instance on the basis that prior payment
‘will be required to attend to your request’. This was followed by a further request on 11
March 2019 for payment of the sum of R323.16 for service of a summons before the first
respondent would attend thereto. The appellant on 13 March 2019 queried the amounts
demanded but subsequently, in the words of Mr Bojosinyane ‘reluctantly and under
protest but solely made in order to facilitate service of the process and the finalization of
the matters’ paid the sum of R323.16 to the first respondent on 18 March 2019. The return
of service dated 25 March 2019 reflects that service was effected on 19 March 2019. The
first respondent’s return of service raised a fee of R271.98. Notwithstanding written
demand on 17 July 2019 the credit between what was paid as a deposit and the fees
raised, is alleged not to have been refunded to the appellant;
(d)
In Fire Cash Loans v Department of Education: NL Tong3 the first respondent on
15 April 2014 demanded payment of the sum of R174.15 ‘which includes this letter and
faxes etc’ before execution of an emoluments attachment order would take place. After
an unsuccessful attempt at execution on 7 July 2014, the order was served on 9 July
2014. The first respondent then rendered an account for R174.15, which included an
amount of R36.50 for an unsuccessful ‘attempted execution.’ The amount claimed is the
same amount the respondent had required the appellant to pay before he would serve
the process. The appellant questions how the initial demand could be for the same
amount as the final fee, when the unsuccessful attempt at execution could not have been
known at the time the demand for payment was made.

[5] The relevant provisions of the Act, the Magistrates’ Courts Rules of Court (the
rules), and the Sheriff’s Act, which provide the legislative framework within which a sheriff
is to discharge his or her functions and obligations, alluded to by Mr Bojosinyane when
setting out the basis for the appellant’s claim, are set out below.

[6] Rules 8(1) and (2) of the rules provide that:

3 The facts appear from the ruling of the magistrate Mr BE Chulu.

‘(1) Except as otherwise provided in these Rules, the process of the court shall be served or
executed, as the case may be, through the sheriff.
(2) Service or execution of process of the court shall be effected without any unreasonable delay,
and the sheriff shall, in any case where resistance to the due service or execution of the process
of the court has been met with or is reasonably anticipated, have power to call upon any member
of the South African Police Force, as established by the South African Police Service Act, 1995
(Act 68 of 1995), to render him or her aid.’ (Emphasis added.)

[7] Rules 8(3) and (4) provide:
‘(3) The sheriff to whom process other than summonses is entrusted for service or execution shall
in writing notify-
(a)
the registrar or clerk of the court and the party who sued out the process that service or
execution has been duly effected, stating the date and manner of service or the result of execution
and return the said process to the registrar or clerk of the court; or
(b)
the party who sued out the process that he or she has been unable to effect service or
execution and of the reason for such inability, and return the said process to such party, and keep
a record of any process so returned.
(4) When a summons is entrusted to the sheriff for service, subrule (3) shall mutatis mutandis be
applicable: Provided that the registrar or clerk of the court shall not be notified of the service and
that the summons shall be returned to the party who sued out the summons.’

[8] Rule 8(6) provides:
‘(6) After service or attempted service of any process, notice or document, the sheriff, other than
a sheriff who is an officer of the Public Service,4 shall specify the total amount of his or her charges
on the original and all copies thereof and the amount of each of his or her charges separately on
the return of service.’5 (Emphasis added.)

[9] In respect of returns of service, rule 9(17A)(a)6 provides:

4 Rule 8(7) provides that: ‘[t]he Director-General of Justice shall by notice in the Gazette publish the name
of every court for which a sheriff who is an officer of the Public Service has been appointed’.
5 There is no provision for such charges to be specified prior to the service of any process.
6 Rule 4(6A)(a) of the Uniform Rules of Court similarly provides that:
‘The document which serves as proof of service shall, together with the served process of court or
document, without delay be furnished to the person at whose request service was effected.’ (Emphasis
added.)

‘The document which serves as proof of service shall, together with the served process of court
or document, without delay be furnished to the person at whose request service was effected.’
(Emphasis added.)

[10] The sheriff’s fees and charges are regulated by rule 34, which provides that:
‘(1) The fees and charges to be taken by a sheriff who is an officer of the Public Service shall be
those prescribed in Part I of Table C of Annexure 2 and in the case of any other sheriff those
prescribed in Part II of the said Table and Annexure.
(2)(a)  Every account of fees or charges furnished by a sheriff shall contain the following note:
“You may require this account to be taxed and vouched before payment.”
(b)
Where any dispute arises as to the validity or amount of any fees or charges, or where
necessary work is done and necessary expenditure incurred for which no provision is made, the
matter shall be determined by the taxing officer of the court whose process is in question.
(3)(a)  Any party having an interest may by notice in writing require the fees and charges claimed
by or paid7 to the sheriff to be taxed by the registrar or clerk of the court, and may attend on such
taxation.
(b)
Upon a taxation referred to in paragraph (a) the sheriff shall vouch to the satisfaction of
the registrar or clerk of the court all charges claimed by him or her.
(c)
A fee for the attending of the taxation shall be allowed-
(i)
to the sheriff if the sheriff's fees or charges are taxed and passed in full, as allowed for in
Table C; and
(ii)
to the interested party concerned if the sheriff's fees or charges are taxed but not passed
in full, on the same basis as the fee allowed to the sheriff under subparagraph (i).’
(Emphasis added.)

[11] Sections 14(7) and (8) of the Act provide:
‘(7) A messenger receiving any process for service or execution from a practitioner or plaintiff by
whom there is due and payable to the messenger any sum of money in respect of services

7 It was argued that this reference to ‘or paid to the sheriff’ meant that the reasonableness of a deposit
claimed by a sheriff, and paid, could also be determined by taxation in the event of a dispute as to the
reasonableness thereof. I disagree. The scheme provided in the legislative framework resulting in payment
being made to a sheriff is payment of charges reflected on a return of service after the services have been
rendered. The legislative scheme does not countenance a series of taxations: one to determine the
reasonableness of a deposit required to be paid before the sheriff will serve or execute a court process,
and another once the actual services have been rendered and the actual charges are levied in the return
of service. This will place an undue burden on taxing masters.

performed more than three months previously in the execution of any duty of his office, and which
notwithstanding request has not been paid, may refer such process to the magistrate of the court
out of which the process was issued with particulars of the sum due and payable by the
practitioner or plaintiff; and the magistrate may, if he is satisfied that a sum is due and payable by
the practitioner or plaintiff to the messenger as aforesaid which notwithstanding request has not
been paid, by writing under his hand authorize the messenger to refuse to serve or execute such
process until the sum due and payable to the messenger has been paid.
(8) A magistrate granting any such authority shall forthwith transmit a copy thereof to the
practitioner or plaintiff concerned and a messenger receiving any such authority shall forthwith
return to the practitioner or plaintiff the process to which such authority refers with an intimation
of his refusal to serve or execute the same and of the grounds for such refusal.’

[12] Section 16(k) of the Sheriffs Act assigns to the second respondent the
responsibility, with the approval of the Minister, to ‘frame a code of conduct which shall
be complied with by the sheriff’.8 Clause 2 of the Code of the Conduct for Sheriffs (the
Code) provides that:
‘A sheriff entrusted with the service or execution of a process shall act without avoidable delay in
accordance with the provisions of rule 8(4) of the Magistrates’ Court Rules or rule 4(6)(a) of the
Supreme Court Rules: Provided that any process, requiring urgent attention shall be dealt with
forthwith.’ (Emphasis added.)
In terms of the Code sheriffs undertake to comply with the precepts of the Act and clause
8.1 prescribes that a sheriff shall ensure that his or her charges are in accordance with
the applicable tariff.

[13] Section 43 of the Sheriffs Act defines improper conduct by a sheriff. Sections 44
to 52 deal with the procedures to be followed in lodging a complaint and the disciplinary
procedures and sanctions that may be imposed on a sheriff.9

8 Such a code was published in GN 954, GG 12840,16 November 1990.
9 These provisions are not quoted in this judgment, as it is only the fact that they are available that is relevant
to this judgment, and not the detail thereof.

[14] The high court found10 that the appellant had a clear right to have processes of
court served without any avoidable or unreasonable delay. It however dismissed the
application for a mandatory interdict on the basis that the appellant had not established
an imminent threat of irreparable harm, and that it had not established that it had no
satisfactory alternative remedy. During the course of the judgment the high court
commented that:
‘Having made a finding that the [appellant] should be non-suited in an application for an interdict
against the sheriff, I deem it unnecessary to deal with the question whether or not the Sheriff is
entitled to demand payment prior to rendering his duty to serve or execute process. There is no
issue pending in this court in that regard.’ (Emphasis added.)

Did the issues before the high court include whether a sheriff may require payment
of fees and charges before processes would be served or executed?
[15] In application proceedings the notice of motion and affidavits contain both the
pleadings and the evidence in support thereof.11

[16] The brief synopsis of the facts in the four cases relied upon by the appellant in
support of its application demonstrates that the demands for upfront payment in each
instance resulted in delays, to varying degrees, before the court process was served or
executed. The appellant complained that these delays were contrary to the requirement
that processes must be served or executed without unreasonable delay. That was the
thrust of its complaint and the reason for the application. The major part of the founding
affidavit was devoted to setting out the factual circumstances of the four cases referred
to as events which reflect a practice by the first respondent to demand payment from the
appellant, before court processes emanating from its offices are served or executed. This

10 The first respondent also raised points in limine: that the appellant had alternative remedies available to
it; that the magistrates’ court was competent to deal with the issue; and non-compliance with the full court
judgment in AECI v Laufs [2016] ZANWHC 63), in opposition to the relief claimed. The second point in
limine will be considered as part of the merits in this judgment. The third and fourth points in limine were
not dealt with in the judgment of the high court. There is no cross appeal in respect thereof. They are
accordingly not considered in this judgment.
11 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA) para 13; Public
Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC) para 234.

practice would furthermore continue into the future as the first respondent confirmed that
he had taken ‘a decision that the [appellant] needs to pay in advance’.12

[17] The high court was therefore required to address this factual premise on which the
appellant approached the court for relief and to determine whether the appellant had a
clear right to restrain the sheriff from requiring payment of fees and charges before
serving or executing the appellant’s court processes. It erred in not doing so.

May the sheriff refuse to serve and/or execute a court process unless the fees and
charges relating thereto have first been paid?
[18] It is trite law that where final relief is sought in application proceedings on the
affidavits, the facts on which the relief is adjudicated are those stated by the respondent
together with the admitted facts in the founding affidavit, or if not formally admitted, are
facts that cannot be denied and are therefore regarded as admitted.13

[19] The material facts necessary for the adjudication of the issue under discussion
have been summarised above in relation to the four cases where the first respondent’s
services were required by the appellant. They are largely common cause. The only
possible further facts of relevance are that the first respondent in his answering affidavit
added that the appellant, since 2014, was not an account holder at his office because the
appellant had not paid him for some services rendered, and that the appellant is a ‘bad’
payer. He further contended that he has a discretion to determine which ‘customers’
should pay upfront and which will be granted a credit facility, that he has suspended the
appellant’s account due to non-payment, and that he will continue to demand payments
in advance before serving or executing any court processes at the request of the
appellant.

12 The learned judge in the high court concluded that the order sought was, in her view, academic. As the
threat of demanding security for the payment of fees before processes of court would be served or executed
was expressly stated to apply into the future, the relief was, with respect neither academic, nor moot.
13 Stellenbosch Farmer’s Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G; Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634F.

[20] Both the Magistrates’ Court and the Office of the Sheriff, are creatures of statute.14
The Magistrates’ Court is established by the Act and its administration is governed by the
Act and the rules.15 The rules provide for court processes to be served or executed by a
sheriff, and for other matters incidental to the work of sheriffs. Sheriffs are appointed in
terms of the Sheriffs Act.16 Being creatures of statute means that they have no inherent
powers, but only such powers as are expressly, or by necessary implication, conferred
upon them.17

[21] The legislative framework does not provide that a sheriff may demand payment of
a deposit upfront in anticipation of fees and charges to be incurred for services still to be
rendered.

[22] What is furthermore clear from the legislative framework, viewed against the
fundamental right of all persons to have access to courts and to have disputes adjudicated
in an expeditious manner, is that all court processes must be served without delay. The
service and execution of court processes has indeed been described as ‘the cornerstone
of our legal system’.18 It is in the interests of the administration of justice that our courts
operate efficiently and without unreasonable or avoidable delays.

14 National Credit Regulator v National Consumer Tribunal and Others [2023] ZASCA 133 para 51;
Tshoga v S [2016] ZASCA 205; 2017 (1) SACR 420 (SCA) para 53.
15 The rules are made by the Rules Board for Courts of Law, which has the power to make, amend or repeal
rules for the High Court and the Magistrates’ Courts in terms of the Rules Board for Courts of Law Act 107
of 1983. The purpose of these rules is to promote access to the courts.
16 Section 2 of the Sheriffs Act provides for the appointment of a sheriff who performs his or her duties
within the area of jurisdiction of the lower and superior courts for which he or she has been appointed.
17 In Ndamase v Functions 4 All 2004 (5) SA 602 (SCA) para 5 it was said that ‘It is well-established that
the magistrates’ court has no jurisdiction and powers beyond those granted by the Act. . .’
Specifically regarding sheriffs, in City of Johannesburg v Changing Tides 74 (Pty) Ltd and others [2012]
ZASCA 116; 2012 (6) SA 294 (SCA) the high court had ordered the sheriff to compile a list of occupants to
be evicted from a building. This court declared that part of the order to be a nullity as the `Sheriffs Act did
not confer such a power on the sheriff – a creature of statute.’
See also South African Board of Sheriffs v Cibe and Others [2022] ZAGPJHC 153 para 37; Bonsai
Investments Eighty Three (Pty) Ltd v Kögl and others [2011] NAHC 189 para 13.
18 D Harms Civil Procedure in Magistrates' Courts Volume 2 (Service Issue 57, August 2023) para B8.3.
Sheriffs also execute processes required to give effect orders of various courts. Section 42(1) of the
Superior Courts Act 10 of 2013 provides that:
‘(1)
The process of the Constitutional Court and the Supreme Court of Appeal runs throughout the
Republic, and their judgments and orders must, subject to any applicable rules of court, be executed in any
area in like manner as if they were judgments or orders of the Division or the Magistrates’ Court having
jurisdiction in such area.’ (Emphasis added.)

[23] If payment may be insisted upon before a process is served or executed, then
delays will be inevitable from when the process to be served is received by the first
respondent: while the first respondent prepares an estimate of the amount of his fees and
charges he requires to be paid; that estimate is conveyed to the appellant; the appellant
assesses the reasonableness or otherwise of the amount demanded; correspondence is
exchanged where the reasonableness of the estimate is debated; payment is made;
payment is received by the first respondent; and the process is finally served or executed.
These delays are demonstrated by the facts of the four cases relied upon by the appellant.

[24] The reasonableness of fees and charges charged by a sheriff may be challenged
by way of taxation, but only after the court process has been served or executed and the
actual fees and charges have been specified in the return of service. Taxation at that
stage provides for an expeditious and inexpensive resolution of any fee disputes. But
there is no provision for anticipated fees demanded in the form of a payment up front, to
be challenged to determine the reasonableness or otherwise of the amount demanded.
Disputes about the reasonableness of the amount demanded up front will result in court
processes not being served or executed with no mechanism to resolve such disputes,
and hence even further delays.

[25] The issue is not whether these delays are unreasonable from the financial
perspective of a sheriff, but that they are unreasonable and avoidable in the greater
interest of the administration of justice, and inconsistent with the legislative framework.

[26] Not allowing demands for payment of anticipated fees up front would not leave the
first respondent without a remedy in respect of practitioners who are slow or bad payers.
He can obviously always institute action for payment of unpaid taxed fees. But that apart,
s 14(7) of the Act, quoted above, provides a remedy whereby he may withhold services,
once authorised by a magistrate, in regard to the service or execution of a particular
process until all previous fees outstanding in respect of services rendered more than three
months previously, to that particular practitioner or person who required his services, have
been paid in full. Obtaining such authority from a magistrate might occasion some delay,

but it is the only delay sanctioned by the legislative framework within which sheriffs, who
accept appointment as sheriffs, have to operate. The three-month period is obviously a
reasonable time for any disputes regarding the quantum of previous fees charged, to have
been resolved, either by agreement or taxation.19

[27] As regards returns of service, rule 9(17A)(a) requires that a sheriff’s return of
service must be provided without delay. The return of service is part and parcel of the
service and execution process. The retention of a return of service by a sheriff will not
delay the service or execution of the court process, but it can and will cause a delay in
the administration of justice. The return of service is an important document. Not only
does it serve as prima facie proof of the service or execution of the court process, a
necessary fact in the judicial process, but as required by rule 8(6) it also records and is
the method contemplated by the rules to convey details of the fees charged by a sheriff
to a practitioner. In the light of the express requirement in rule 9(17A)(a) that it must be
provided ‘without delay’, the return too cannot be withheld pending payment. To do so
would be inconsistent with the legislative framework.

[28] In summary, the first respondent is not entitled to demand payment up front for
fees and charges contemplated, but yet to be incurred, for the service and execution of
court processes. Similarly, returns of service may not be withheld by him pending
payment being made of the fees and charges reflected therein for the service and
execution of court processes.

The interdictory relief
[29] The relief which should follow in the light of the conclusions reached above can be
expressed as declaratory relief, or it can be couched as a mandatory interdict. The high

19 There is no similar provision in the high court, but that does not detract from the above interpretation of
the legislative framework. Unlike the magistrates’ court which is a creature of statute, the high court has
inherent jurisdiction and power, confirmed by section 173 of the Constitution, to regulate its own process
and to develop the common law taking into account the interest of justice. Section 43(1) of the Superior
Courts Act 10 of 2013 provides that ‘a refusal by the sheriff or a deputy to do any act which he or she is by
law required to do, is subject to review by the court concerned on application ex parte or on notice as the
circumstances may require.’

court treated the application as one for an interdict. That was how the appellant’s case
was presented. The appellant also argued the appeal on the basis that it sought an
interdict.

[30] The requirements for a final interdict are trite. The applicant for such an interdict
must demonstrate a clear right, establish an imminent threat of harm, and show that it
has no satisfactory alternative remedy.

[31] In the light of the conclusions reached above, the appellant has established a clear
right, subject to the provisions of s14(7) of the Act, to have court processes served or
executed without unreasonable delay. It is entitled to restrain the first respondent from
requiring payment of a deposit in respect of anticipated fees and charges before serving
or executing a court process, or rendering the return of service relating thereto.

[32] As regards the requirement of imminent harm or injury, the first respondent’s stated
intention to continue insisting on payment from the appellant before rendering any service
or executing court processes emanating from the appellant, confirms not only an injury in
law which the appellant has suffered in the past, but also an ongoing injury which is
reasonably apprehended and feared20 to occur again in the future.21

[33] Finally, as regards the third requirement, the appellant established that it has no
satisfactory alternative remedy but to apply to court for appropriate relief. Taxation of the
fees and charges demanded in advance is not a remedy because such taxation is not
available within the legislative framework. Disciplinary proceedings before a committee
of the Sheriff’s Board do not present a satisfactory remedy to the appellant who would
still be required first to pay whatever is demanded as a deposit up front before the court
process is served or executed. The disciplinary process will take time, and even if the
eventual finding is one of some form of unprofessional conduct and a sanction, it will be

20 V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others
2006 (1) SA 252 (SCA) paras 20-21. It is not an injury that has occurred and is not likely to be repeated.
21 I respectfully disagree with the conclusion of the high court that this threat would not entitle the appellant
to approach the court to obtain an interdict. No reason was stated for that conclusion.

no remedy to the appellant who in the interim required service and execution of a court
process without unreasonable delay. Instituting disciplinary proceedings is therefore not
an alternative satisfactory remedy ‘with the same result’,22 nor will it provide adequate
redress.23

[34] The requirements for an interdict all being satisfied, the appellant was entitled to
be granted interdictory relief.

Conclusion
[35] The appeal accordingly succeeds. The order granted should however address the
specific conduct of the first respondent which the appellant sought to restrain. Such an
order is set out below.

[36] The costs of the appeal and the costs of the application in the high court should
follow the result. The second respondent joined in the application and appeal and
opposed the relief claimed. It should be directed to pay the appellant’s costs jointly and
severally with the first respondent.

[37] The following order is granted:
1. The appeal is upheld;
2. The first and second respondents are directed to pay the costs of the appeal jointly
and severally, the one paying the other to be absolved;
3. The order of the high court is set aside, and substituted 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;

22 D E van Loggerenberg Jones and Buckle: Civil Practice of the Magistrates' Courts in South Africa Volume
1 (Revision Service 27, May 2023) at Act-p180; Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3)
SA 656 (SR).
23 Peri-Urban Areas Health Board v Sandhurst Gardens (Pty) Ltd 1965 (1) SA 683 (T).

(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 in
paragraph (a) above before serving and executing such process;
(c)
After the service or execution of any court process referred to in paragraph
(a) above, 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 are directed to pay the costs of the
application jointly and severally, the one paying the other to be absolved.’

_______________________
P A KOEN
ACTING JUDGE OF APPEAL

Makgoka JA
[38] I have read the judgment of my Colleague Koen AJA. I agree with the order he
proposes. However, I prefer a more linear route.

[39] The principal issue in this appeal is whether a Sheriff is entitled to demand upfront
payment for their fees and charges before they serve a court process. The appellant,
Bojosinyane and Associates (Bojosinyane) had sought a mandatory interdict in the North-
West Division of the High Court, Mahikeng (the high court), against the first respondent,
the Sheriff of Vryburg (the Sheriff). He sought relief that the Sheriff be ordered to serve
court process emanating from its office without insisting on upfront payment for his fees.
The high court dismissed that application with costs on an attorney and client scale. The
appeal is with the leave of this Court.

Factual background
[40] The background is briefly this. Bojosinyane is a firm of attorneys situated in
Hartswater, Northern Cape Province. It has a branch office in Vryburg, North West
Province. The Sheriff has been appointed for the district of Vryburg. Bojosinyane had an
account with the Sheriff. Over time, a dispute arose between Bojosinyane and the Sheriff
about the reasonableness of the fees charged by the Sheriff against Bojosinyane. As a
result, in some instances, the latter withdrew payment of charges demanded by the
Sheriff. In response, the Sheriff took the stance that henceforth, he would serve process
from Bojosinyane only upon receipt of upfront payment for his estimated fees.

[41] Because of the dispute, the Sheriff approached the local Magistrate for
authorisation to refuse to serve process from Bojosinyane, pursuant to s 14(7) of the
Magistrate Court’s Act 32 of 1944. The section reads as follows:
‘A messenger receiving any process for service or execution from a practitioner or plaintiff by
whom there is due and payable to the messenger any sum of money in respect of services
performed more than three months previously in the execution of any duty of his office, and which
notwithstanding request has not been paid, may refer such process to the magistrate of the court
out of which the process was issued with particulars of the sum due and payable by the
practitioner or plaintiff; and the magistrate may if he is satisfied that a sum is due and payable by
the practitioner or plaintiff to the messenger as aforesaid which notwithstanding request has not
been paid, by writing under his hand authorise the messenger to refuse to serve or execute such
process until the sum due and payable to the messenger has been paid.’

[42] The application was unsuccessful, as the Magistrate on 8 August 2014, found that
the Sheriff had ‘failed to show compliance with the requisite provisions of the section …’
The reasons for that conclusion are not germane to the appeal. Upon such refusal, the
Sheriff closed Bojosinyane’s account and informed it that going forward, he would serve
process from it only upon upfront payment for any process.
In the high court
[43] Consequently, Bojosinyane launched an urgent application in the high court for a
declaratory interdict that the Sheriff is obliged to serve process emanating from it without

‘any avoidable or unreasonable delay’ Bojosinyane complained that since April 2014, the
Sheriff was ‘demanding and continuing to demand, exorbitant fees’ from it before would
effect service of any process from its office.  Bojosinyane said that this led to excessive
delays in having the documents served, as the parties would be arguing about the
reasonableness or otherwise of the Sheriff’s upfront charges. In most instances,
Bojosinyane paid the deposit under protest in order to facilitate the service of process.
Bojosinyane averred that the Sheriff’s conduct was in contravention of rule 8 of the
Magistrate’s court rules and amounted to self-help. By the time the application was
launched in the high court, there was no process that the Sheriff had not served, mainly
because Bojosinyane had paid the demanded upfront payment.

[44] In answer, the Sheriff stated that it was practice in his office that once an account
is closed, payments should be made in advance when the erstwhile account holder would
be obliged to pay upfront for his fees. Since Bojosinyane’s account had been closed since
April 2014, he ‘properly exercised [his] discretion to seek upfront payment from
Bojosinyane. He found support for this stance in a newsletter of the South African Board
for Sheriffs (the Board) issued in August 2009. There, it is recommended that where
Sheriffs are owed money by an attorney or a member of the public, in order to protect
themselves against prescription, they should serve the process and withhold the return
of service until the fees are paid. The Board supported the Sheriff’s stance.

[45] The urgent application was struck off the roll for lack of urgency. Subsequently, in
the normal course, the matter served before Leeuw JP in the high court. By that time, the
South African Board for Sheriffs had been admitted as a second respondent in the
application.  The high court found that Bojosinyane had satisfied only one of the three
requisites for a final interdict,24 , namely a clear right. As to the injury or reasonable
apprehension thereof, the high court reasoned:

24 An applicant for such an order must show a clear right; an injury actually committed or reasonably
apprehended; and the absence of similar protection by any other ordinary remedy. Setlogelo v Setlogelo
1914 AD 221 at 227. These requisites have been restated by this Court in a plethora of cases, most recently
in Hotz and Others v University of Cape Town [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017 (2) SA
485 (SCA) para 29; Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) [2014] ZASCA

‘. . .[T]here is no real dispute pending between [Bojosinyane] and the Sheriff. The fact that the
Sheriff threatened to continue with his conduct of demanding payment upfront from [Bojosinyane]
does not necessarily entitle [it] to approach this court to obtain an interdict against the Sheriff.’

[46] With regard to the absence of an alternate remedy, the high court held that
Bojosinyane has the right to submit the sheriff’s accounts for taxation in terms of rule
34(3). Also, the high court found that Bojosinyane could lodge a complaint against the
Sheriff with the Board if it is of the view that the Sheriff overcharged it. These measures,
said the high court, offered Bojosinyane adequate alternative remedies. For these
reasons, the high court was of the view that the order sought by Bojosinyane was
academic. Consequently, it concluded that it was ‘unnecessary to deal with the question
whether or not the Sheriff is entitled to demand payment prior to rendering his duty to
serve or execute process.’ Accordingly, the high court dismissed Bojosinyane’s
application with costs of both the Sheriff and the Board, such costs to be paid on an
attorney and client scale.

Analysis of the high court judgment
[47] I propose to immediately deal with how the high court dealt with the application for
an interdict. The finding that the matter was academic is difficult to understand. In no
uncertain terms, the Sheriff had expressly stated his intention to continue refusing to
serve process from Bojosinyane unless a deposit was paid on a case-by-case basis.
An interdict is appropriate not only for present infringement of rights but also and when
future injury is feared.25  Where a wrongful act giving rise to the injury has already
occurred, it must be of a continuing nature or there must be a reasonable apprehension
that it will be repeated.26 In the present case there was an express intention to continue
the injury.

169 para 26; and Red Dunes of Africa v Masingita Property Investment Holdings [2015] ZASCA 99 para
19. They were affirmed by the Constitutional Court in Pilane and Another v Pilane and Another [2013] ZACC
3; 2013 (4) BCLR 431 (CC) para 38.

25 Phillip Morris Inc v Marlboro Trust Co SA 1991 (2) SA 720 (A) at 735B.
26 NCSPCA v Openshaw 2008 (5) SA 339 (SCA); [2008] 4 All SA 225 (SCA); para 20.

[48] As to the alternate remedy, it is now settled that for a remedy to be a bar to an
interdict, the remedy must be effective. In Hotz v University of Cape Town this Court
explained:
‘An alternative remedy must be a legal remedy, that is, a remedy that a court may grant and, if
need be, enforce, either by the process of execution or by way of proceedings for contempt of
court. The fact that one of the parties, or even the judge, may think that the problem would be
better resolved, or can ultimately only be resolved, by extra-curial means, is not a justification for
refusing to grant an interdict.’
It is clear that taxation and disciplinary proceedings against the Sheriff, are not legal, and
therefore, not effective, remedies.

[49] With regard to the punitive costs order against Bojosinyane, it is not clear from the
judgment of the high court as to why it was made. The Judge President said the following:
‘I have already alluded above that the applicant27 who is an attorney, should be [au fait] with the
Rules and relevant statutes prescribed by the law, and should have reflected on this issue prior
to approaching this court for an interdict.’

[50] A costs order on an attorney and client scale is an extra-ordinary one which should
not be easily resorted to, and only when by reason of special considerations, arising either
from the circumstances which gave rise to the action or from the conduct of a party, should
a court in a particular case deem it just, to ensure that the other party is not out of pocket
in respect of the expense caused to it by the litigation.28 Costs on an attorney and client
scale are awarded when a court wishes to mark its disapproval of the conduct of a
litigant.29 As such, the order should not be granted lightly, as courts look upon such orders
with disfavour and are loath to penalise a person who has exercised a right to obtain a
judicial decision on any complaint such party may have. Nothing in this case even
remotely resembles any of the considerations referred to above. Even if Bojosinyane was

27 The Judge President failed to make a distinction between BG Bojosinyane and Associates as a firm of
attorneys, and its principal, Mr Boemo Granch Bojosinyane, the deponent to the founding affidavit.
28 See Nel v Waterberg Landbouwers Ko-operatieve Vereeneging 1946 AD 597 at 607.
29 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA
253 (CC) para 223.

ill-advised (it was not) in bringing the application, that hardly constitutes a factor to warrant
a punitive costs order.

[51] Thus, the learned Judge President was plainly wrong on how she approached the
application.

In this Court
What was the issue before the high court?
[52] In this Court, Bojosinyane contended that the issue is that which the high court
declined to consider: whether a Sheriff, absent an authorisation envisaged in s 14(7) as
outlined earlier, is entitled to demand upfront payment for their charges before serving a
court process. The Sheriff contended that the case it had to meet in the high court was
different from what was being asserted on appeal. The Board supported this submission.
It was contended that the issue in the high court was the reasonableness of the Sheriff’s
upfront fees rather than whether he was entitled to demand upfront payment.

[53] The notice of motion did not mention the Sheriff’s refusal to serve process unless
upfront payment was made, and for that conduct to be interdicted. However, in the
founding affidavit, the issue was squarely raised. In paragraph 32 of its founding affidavit,
Bojosinyane made the following averments:
‘The [Sheriff’s] conduct [of demanding upfront payment] is. . . wrongful and unlawful in view of the
fact [he] can utilise the remedy set out in section 14 of the Magistrate’s Court for an authorisation
by [a] magistrate to refuse to serve the process emanating from [Bojosinyane’s office.’
In paragraph 33 Bojosinyane averred that the Sheriff’s conduct amounted to self-help,
and in paragraph 34, it averred that the Sheriff’s conduct was ‘in contravention of rule 8
of the Magistrate’s Court Rules. The Sheriff denied these averments and insisted that he
was perfectly entitled to do so.

[54] This is also how the high court understood the issue before it. In para 8 of its
judgment, the high court identified the issues as being whether Bojosinyane had made
out a case for an interdict, and if so, ‘whether this court may grant an order restraining the

Sheriff from demanding payment prior to service or execution of process emanating from
the office of [Bojosinyane].’

[55] I therefore conclude that the issue of whether, absent authorisation in terms of
s 14(7), a Sheriff is entitled to refuse to serve court process unless payment for their fees
and charges is made up-front was squarely before the high court. But even if it was not
raised in the pleadings, this is a point of law. It is now settled that the mere fact that a
point of law is raised for the first time on appeal is not in itself sufficient reason for refusing
to consider it.  The proviso is that a party will not be permitted to raise a point that was
not covered in the pleadings if its consideration will result in unfairness to the other party.30
In the present case the Sheriff and the Board do not allege any, and I find none. In all the
circumstances, there is no merit in the Sheriff’s and the Board’s contention.

The issue for determination
[56] With that out of the way, I turn to the issue on appeal, which is this. Outside the
purview of s 14(7), does a Sheriff have a right to refuse to serve court process unless
payment for their fees and charges is made up-front? The question must be answered
with reference to the legislative provisions that regulate Sheriffs. Rule 8(2) of the
Magistrate Court rules provides, among other things, that ‘[s]ervice or execution of
process of the court shall be effected without any unreasonable delay.’ Rule 8(3) enjoins
the sheriff, upon service of a process other than summons, to notify the registrar or clerk
of the court and the party who sued out the process, that service or execution has been
duly effected, stating the date and manner of service or the result of execution and return
the said process to the registrar or clerk of the court.

[57] Rules 8(6) and 34 are particularly relevant to the present case, both of which refer
to the Sheriff’s charges. Rule 8(6) reads as follows:
‘After service or attempted service of any process, notice or document, the sheriff, . . . shall
specify the total amount of his or her charges on the original and all copies thereof and the amount
of each of his or her charges separately on the return of service.’

30 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) para 39.

Rule 34(2)(b) deals with disputes about the Sheriff’s charges and how they are to be
resolved. It provides:
‘Where any dispute arises as to the validity or amount of any fees or charges, or where necessary
work is done and necessary expenditure incurred for which no provision is made, the matter shall
be determined by the taxing officer of the court whose process is in question.

[58] The upshot of these legislative provisions is clear. None of them remotely entitles
a Sheriff, for any reason whatsoever, to refuse to serve court process unless upfront
payment for her or his fees and charges is made by an account holder. If anything, they
are obliged to serve process entrusted to their office ‘without any unreasonable delay’, as
rule 8(2) commands, and thereafter render an account setting out her or his charges,
pursuant to rule 8(6). The only basis upon which she or can do so, is within the
circumscribed circumstances of s 14(7) and upon authorisation by a magistrate. Thus,
absent a s 14(7) authorisation, a Sheriff must serve the process, render their account and
the return of service. The disputes about the Sheriff’s fees referred to in rule 34(2), can
only arise after the process had been served, and such disputes would be determined by
the Taxing Master.

[59] The Sheriff had another string to his bow. He submitted that he could in certain
circumstances, to avoid prescription for example, serve court process but withhold the
return of service and only release it upon payment of his charges. The Board supported
this. This submission is mentioned merely to be rejected. The simple answer is provided
in rule 9(17A)(a), which, consistent with rule 8(2), requires a Sheriff to render her or his
return of service ‘without delay’ to ‘the person at whose request service was effected.’

[60] In sum, a Sheriff does not have a lawful basis to insist upon upfront payment for
her or his charges or to refuse to serve process until such payment is made. They can
only do so when authorised in terms of s 14(7). Similarly, they do not have any lawful
basis to withhold a return of service until payment is made. The objective in both rules
8(2) and 9(17A)(a), ie avoidance of undue delay in serving court process, would be
defeated if the Sheriff’s contentions were to be accepted.  The delay is inherent in the

refusal to serve court process until payment is made up-front. What is more, the Sheriff’s
conduct in this case amounts to self-help. As the Constitutional Court held in Lesapo v
North West Agricultural Bank,31 ‘[t]aking the law into one’s own hands is . . . inconsistent
with the fundamental principles of our law.’32

Conclusion
[61] In all the circumstances, the appeal must succeed. Costs must follow the result.
The Board must pay the costs jointly and severally with the Sheriff. It aligned with the
Sheriff’s cause, both in the high court and in this Court.

_______________
T MAKGOKA
JUDGE OF APPEAL

31 Lesapo v North West Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409; 1999 (12)
BCLR 1420 (CC).
32 Ibid para 11.

Appearances:
For the appellant:

J H F Pistor SC
Instructed by:

Bojosinyane & Associates, Hartswater
Phatshoane Henney Attorneys, Bloemfontein.

For the first respondent:

N Jagga
Instructed by:                                           Kotze Louw Swanepoel Attorneys, Vryburg
Pieter Skein, Bloemfontein.

For the second respondent:

N Riley
Instructed by:

Herman Scholtz Attorneys, Mahikeng.

c/o Snaid & Morris Attorneys, Sandton.
Honey Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
8 December 2023
Status:
Immediate

The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgment of the Supreme Court of Appeal.

BG Bojosinyane & Associates v The Sheriff, Vryburg and Another (1072/2022)
[2023] ZASCA 174 (8 December 2023)
__________________________________________________________________
Today the Supreme Court of Appeal handed down two judgments, one by Koen AJA
with Matojane and Weiner JJA and Chetty AJA concurring, and a separate
concurring judgment by Makgoka JA, upholding an appeal against a judgment of the
North-West Division of the High Court, Mahikeng.

The appellant in the appeal, BG Bojosinyane & Associates, a legal practice, had
required the first respondent, the Sheriff of the magistrates’ court in Vryburg, to serve
and execute certain court processes. The first respondent refused to do so until a
deposit on account of his anticipated fees and charges relating to such service or
execution was first paid. The appellant objected to that practice and sought
interdictory relief directing the first respondent to serve and execute processes
without unreasonable delay. The relief claimed by the appellant was opposed by the
first respondent and the South African Board of Sheriffs, which intervened as the
second respondent. The appellant was unsuccessful before the North-West Division
of the High Court.

The SCA held that the practice followed by the first respondent in respect of court
processes required by the appellant to be served resulted in unreasonable delay that
can be avoided, and that it was not permitted by and is inconsistent with the
legislative framework, specifically the magistrates’ court rules, which require court
processes to be served and executed expeditiously and without delay. It according
upheld the appeal and directed that the costs relating thereto be paid by both
respondents jointly and severally. It set aside the order of the high court, and
replaced it with an order that unless authorised by a magistrate in terms of section
14(7) of the Magistrates’ Court Act 32 of 1944, the first respondent was directed to
effect service and to execute any court processes emanating from the appellant’s
practice without delay, and without requiring payment of the first respondent’s fees
and charges before any such process is served or executed, or before the return of
service relating thereto is released. The first and second respondents were also
directed to pay the costs of the proceedings before the high court jointly and
severally.