THE SUPREME COURT OF APPEAL
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
OF SOUTH AFRICA

Reportable

CASE NO. 339/2001
In the matter between
MARK BYRON
Appellant
and
DUKE INCORPORATED
Respondent
____________________________________________________________

CORAM:  SMALBERGER ADP, OLIVIER, ZULMAN, MPATI JJA and
LEWIS AJA

HEARD:
21 MAY 2002
DELIVERED:
30 MAY 2002
____________________________________________________________
Condonation – validity of a writ of execution in respect of a taxed bill of
costs issued in the name of the successful party, the proceeds of the bill
having been ceded to the attorney of the successful party.

JUDGMENT

ZULMAN JA

[1] This is an appeal, with the leave of the court a quo, against an order
dismissing an application brought by the appellant to set aside a writ of
execution and an attachment made pursuant thereto.  The writ was issued
by the respondent.  The respondent is a company which practises as
attorneys.   The appellant has brought a substantive application to this
Court seeking condonation for his failure to comply with a number of rules
of this Court.  The application is opposed by the respondent.

[2] The principles governing condonation applications and the factors
which weigh with this Court are well-known and have been often restated.
The main principles are succinctly formulated in Federated Employers Fire
& General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A)
at 362 F-H as follows:

“[T]he factors usually weighed by the Court include the degree of non-
compliance, the explanation therefor, the importance of the case, the prospects
of success, the respondent’s interest in the finality of his judgment, the
convenience of the Court and the avoidance of unnecessary delay in the
administration of justice;…”

[3] The material facts relating to the condonation application are the
following:

3.1
On 22 August 2000 the respondent caused the Registrar of the
High Court to issue a writ of execution authorising the Sheriff
to attach the appellant’s movables in execution.

3.2
On 25 August 2000 the Sheriff, acting in terms of the writ,
attached certain movables belonging to the appellant.

3.3
On 5 September 2000 the appellant brought an application to
set aside the writ and attachment made pursuant thereto.  The
application was opposed.

3.4
On 27 October 2000 the application was dismissed with costs
by the court a quo.

3.5
On 3 November 2000 the appellant delivered an application
for leave to appeal against the order dismissing the application
together with a request for reasons, no reasons having been
furnished by the court a quo when the application was
dismissed.

3.6
On 12 December 2000 the reasons were furnished.

3.7
On 16 February 2001 the court a quo granted leave to appeal
to this Court.

3.8
On 14 March 2001 a Notice of Appeal was delivered to the
respondent.   On 16 March 2001 the Notice of Appeal was
lodged with this Court by the appellant’s Bloemfontein
attorneys.   This was one day after the last day provided for in
the rules for lodging the notice (Rule 7(1)).   On the same day
the appellant’s Bloemfontein attorneys wrote to the appellant’s
Johannesburg attorneys confirming that the Notice of Appeal
had been lodged and that they were “tans in afwagting op die
uitreiking van die saaknommer”.

3.9
In terms of the rules of this Court the record of the
proceedings in the court a quo were required to be lodged
within three months of the lodging of the notice of appeal,
namely on or before 15 June 2001  (Rule 8(1)).   However
Liezel van Niekerk, an attorney in the office of the appellant’s
Johannesburg attorneys, and the sole deponent to the
appellant’s founding affidavit in the condonation application,
decided to wait for the case number before preparing the
appeal record.  It is not apparent to me why a case number was

not allocated when the Notice of Appeal was lodged with the
Registrar of this Court.   The appellant’s Bloemfontein
attorneys have not chosen to enlighten this Court in this
regard.   Furthermore, why it was in any event necessary to
obtain the case number, and why Van Niekerk could not
simply have obtained the case number by making a telephone
call to her Bloemfontein correspondent or the Registrar of this
Court, is not explained.  Van Niekerk states that she “planned”
to diarise her file “for the end of April 2001 for the purpose of
attending to the preparation and lodging of the appeal record” which
would have given enough time for preparation of the record.
This notwithstanding, nothing was done because according to
her “due to an oversight in the offices of the applicant’s attorneys such
file was never diarised”.  There is no explanation whatsoever as
to whose “oversight” brought about this situation nor how it
occurred.

3.10 On 12 June 2001 Van Niekerk’s  Bloemfontein correspondent
telefaxed the case number to her.  Due to “pressure of work” the
telefax did not come to her attention and she took no steps to
lodge the record notwithstanding the fact that the record was
required to be lodged by no later than 15 June 2001.

3.11 The telefax apparently only came to her attention on 22 June
2001 because the respondent advised her that the appeal had
lapsed and that execution was to proceed.  Some three days
later, on 25 June 2001, the appellant launched an application
in the court a quo for an order staying execution.  This order
was granted on 7 August 2001.

3.12 It was only on 27 June 2001 that the appellant’s attorneys gave
instructions for the judgment of the court a quo granting leave
to appeal to be typed.  According to Van Niekerk this was
because the appellant’s attorneys were attending to the
application to stay execution.  Van Niekerk does not state who
of the appellant’s attorneys were so occupied nor does  she
seek to explain why there was apparently no one in the
appellant’s attorneys’ office who could be instructed to take
the simple step of ordering the record during this period, even
if Van Niekerk herself was fully occupied with the application
to stay execution.

3.13 Although difficulties were experienced in obtaining the
learned judge a quo’s signature to the judgment granting leave

to appeal, the judge eventually signed the judgment which was
uplifted on 7 August 2001.   On 13 August 2001 the appeal
record was completed.   On 15 August 2001 an application for
condonation and re-instatement was lodged.

3.14 Nothing was done by the appellant’s attorney to prosecute the
appeal between 16 March 2001 until 27 June 2001 when
attempts were made to obtain the judge a quo’s signature to
the judgment granting leave to appeal – a period of
approximately 3 months.   It is furthermore apparent that had
the respondent not sought to execute on the judgment that it
had obtained after the appeal had lapsed, the appellant’s
attorneys would probably have continued to do nothing.

3.15 Non-compliance with the rules did not cease here.   The
appellant’s
replying
affidavit
in
the
application
for
condonation was also lodged late.

[4] It is apparent from the aforegoing history that there were a number of
instances where the rules of court were not complied with.   Furthermore,
inadequate and indeed, in some cases, no explanation is given for such
non -compliance.   I do not believe, however, that the non-compliances in

question were so flagrant and gross that merely because of them the
application for condonation should be dismissed without considering the
appellant’s prospects of success on appeal  (cf, for example, Ferreira v
Ntshingila 1990 (4) SA 271 (A) 281J – 282A and Darries v Sheriff,
Magistrate’s Court Wynberg, and Another 1998 (3) SA 34 (SCA)
at 44H–J)

[5] I accordingly now turn to consider whether the appellant has shown a
reasonable prospect of success on appeal.   The material facts in regard
thereto are:

5.1
On 11 August 1999 an agreement of settlement concluded
between the appellant, Mr Derek Jackson and Absa Bank
Limited was made an order of court.  In terms of the order the
appellant was to make payment of Jackson’s “costs of suit within
seven days from date of taxation, without set-off or deduction”.

5.2
On 11 August 2000 the amount of such costs was settled
between tax consultants appointed by the attorneys acting for
the appellant and Jackson in an amount of R48 612,44.  On the
same day the taxing master made his allocatur in accordance
with such settlement.

5.3
On 11 August 2000 Mr Gary Duke of the respondent telefaxed
a letter to the appellant’s attorneys the material portion of
which reads:

“We are in receipt of the Bill of Costs amended as per the agreement
between our respective taxing consultants in terms of which the final
amount as per the Bill is the amount of R48 612,44.

We are advised by our taxing consultant that same was endorsed by the
Taxing Master earlier today.

Note that our client has ceded his rights to the proceeds from the Bill of
Costs to ourselves for outstanding legal fees and we accordingly request
that your client make payment of the amount of the Bill to our offices.

Kindly acknowledge receipt hereof and we look forward to receiving
your client’s cheque in settlement thereof soonest.”

5.4
Later on 11 August 2000 Duke telefaxed a further letter to the
appellant’s attorneys stating as follows:

“Kindly note that we no longer represent Mr Jackson.

We have no details of his present whereabouts.”

5.5
On 15 August 2000 the appellant’s attorneys acknowledged
receipt of the two letters of 11 August 2000.  In the letter they
record that the appellant disputes the cession and requires
details of it.   The letter also expresses the opinion that “given
the disputed cession and the defences that my client has to such claim …

you ought to institute action against my client should you persist with
such cession”.

5.6
On 17 August 2000 the respondent replied in a letter recording
that there was no basis for the appellant disputing the cession,
recording that the cession was oral and pointing out that it was
a specific term of the settlement that the appellant would make
payment of costs of suit within seven days from date of
taxation without deduction or set-off.  The letter concludes by
stating that the respondent intends proceeding with a writ.

5.7
No payment was forthcoming.   As previously mentioned the
respondent then caused the Registrar to issue a writ of
execution.

[6] As I understand the appellant’s argument, he contends that the writ
of execution is void for the following reasons:

6.1
The right or locus standi to institute execution proceedings in
terms of the costs order after the cession by Jackson remained
with Jackson.   The cession was only of the proceeds of the

costs order and did not carry with it the right or locus standi to
institute execution proceedings.

6.2
In the alternative, if after such cession the respondent acquired
the right or locus standi to institute execution proceedings in
terms of the costs order, the respondent could not issue a writ
of execution in the name of Jackson, but had to substitute itself
for Jackson as the execution creditor and institute such
execution proceedings in its own name.

6.3
In the further alternative, even if after such cession the
respondent had the right or locus standi to execute the costs
order (as cessionary) in the name of Jackson (as cedent), the
respondent lacked authority to issue the writ in the name of
Jackson, as Jackson had terminated the respondent’s mandate
to do so.

(An argument raised in the appellant’s heads of argument to the
effect that the cession was in some way tainted with champerty was
wisely not persisted in).

[7] A fair and sensible reading of the letter of 11 August 2000 which sets
out the details of the cession makes it clear that this is a case of an
out –and -out cession.   Any suggestion of divorcing, as it were, the
substantive rights contained in the cession from the procedural rights to act
thereon is untenable.   Such a construction would be totally unrealistic.  To
give a person a right to obtain the “proceeds” of a bill of costs but not to
arm that person with the procedural ability to do so is, in my view, an
absurdity.  As pointed out by Van den Heever JA in First National Bank of
SA Ltd v Lynn NO and Others 1996 (2) SA 339 (A) at 352C-D:

“A right of action does not exist independently of the underlying right itself.
The former is merely the procedural manifestation  of the latter…   [T]he
procedural manifestation of the underlying right would acquire meaning only
once the underlying right became exigible”.

Equally apposite are the following remarks of Olivier JA in the same case
at 356 D-E:
“In the present case a suspended right to claim payment of the retention money
came into being on 27 August 1990.  As explained by  De Wet and Van Wyk (loc
cit) [Kontraktereg en Handelsreg 5th ed vol 1 at 150 –1], that right constitutes a
legal reality and not a mere spes.  Inter alia, it can be ceded…”.

(See also Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere 1999
(3) SA 389 (HHA) at 399F-H and 411D-E) and Headleigh Private Hospital

(Pty) Ltd t/a Rand Clinic v Soller & Manning Attorneys and Others  2001
(4) SA 360 (W) at 366 J – 367 A.
It is plainly implicit, if not expressly stated, on a proper construction  of the
letter detailing the cession, that what was being ceded was not simply the
right to the proceeds of execution but also the procedural right to bring this
about by way of the issue of a writ of execution.

[8] The contention that even if there was a right or locus standi to
institute execution proceedings in terms of the costs order the respondent
was precluded from issuing a writ in the name of Jackson but was obliged
to substitute itself for Jackson as execution creditor and to institute such
execution proceedings in its own name, is equally without substance.  First,
where a judgment creditor has ceded his rights it is not absolutely
necessary for the cessionary to obtain his substitution on the record before
he may sue out a writ in the name of the cedent.  De Villiers J in Schreuder
v Steenkamp 1962 (4) SA 74(O) at 76H put the matter in these brief terms:
“ Volgens die outoriteite is dit egter nie nodig vir ‘n sessionaris om die naam
van die sedent met sy naam te laat vervang nie:  hy kan ‘n lasbrief uitneem in die
naam van die sedent.”

(See also Kourie and Another v Sasseen 1965 (1) SA 490 (T) at 491 A-C
and Herbstein and Van Winsen The Civil Practice of The Supreme Court of
South Africa (4th Edition p 757) and   Headleigh Private Hospital (Pty)
Limited (supra) at 373E – 374B.   Second, it is clear from authorities such

as Sachs v Katz 1955 (1) SA 67 (T) at 72D that a writ must be in “strict
conformity with the Court’s order which warrants its issue”.

[9] It is apparent from the writ in this case that:

9.1
It is issued in case number  98/31408 being the case number of
the application which was settled.

9.2
It describes the plaintiff in the heading thereof as being
Jackson, the appellant as the first defendant and Absa Bank as
the second defendant.

9.3
The writ directs the Sheriff to attach and take into execution
the movable goods of the appellant at an address stated, and to
cause to be realized by public auction the sum of R48 612,44
together with interest thereon at the rate of 15.5% per annum
from 11 August 2000  (the date of taxation of Bill of Costs) to
date of payment.

9.4
The Sheriff is further directed to pay to the plaintiff or its
attorneys the sum due to it as aforementioned.

9.5
The writ is signed by G Duke who is described as being of
“applicant’s attorney” Duke Incorporated (the respondent).

The writ is therefore in strict conformity with the Court’s order which
warranted its issue.   The writ was accompanied by a letter to the Sheriff in
which it was recorded that the proceeds of the writ had been ceded to the
respondent.   In any event the cession amounted to one which appointed the
respondent as procurator in rem suam thereby entitling the respondent to
sue in the name of Jackson if the respondent considered it “more favourable
for the more advantageous recovery of the settlement of the debt”   (Sande
Commentary on Cession of Actions,  Anders’ translation (1906) chapter 9
para 7 p 173).

[10] The final alternative argument to the effect that Jackson had
terminated the respondent’s authority to issue the writ in his name is also
lacking in merit.   The second letter written on 11 August 2000 advising
that the respondent no longer represented Jackson is relied upon for this
argument.  As I have already pointed out the letter simply states: “Kindly
note that we no longer represent Mr Jackson”.  It does not state that there was no
existing authority to issue a writ in the name of Jackson so as to enable the
respondent to  proceed with the execution.  This was plainly, for the
reasons that I have previously indicated, part and parcel of the cession.

There was no point in ceding the amount of the Bill of Costs without at the
same time enabling the respondent to give effect to it.

[11] Accordingly the appellant has no reasonable prospects of success on
the merits of the appeal.  In the result the condonation application must fail.

[12] The question of costs remains for consideration.    Although the
conduct of the appellant’s attorneys was not exemplary and exhibits a
disregard for the rules of this Court I do not regard such conduct as being
of such a nature as to warrant the extreme order of penalizing the attorneys
with a de bonis propriis costs order.  I nevertheless believe that this Court
should mark its displeasure with such conduct.   The appellant’s attorneys
were in court during argument.  At the request of the Court, counsel for the
appellant obtained an agreement from them that they would not object to an
order being made depriving them of any right to claim costs from their
client in regard to the condonation application.

[13] In the result I make the following order:

13.1 The application for condonation is refused.

13.2 The appellant’s attorneys are not entitled to seek to recover
any costs from the appellant in regard to the application for
condonation.

13.3 The appellant is ordered to pay the respondent’s costs,
including the costs incurred in relation to the appeal.

----------------------------------------
R H ZULMAN
JUDGE OF APPEAL

SMALBERGER  DP
)
OLIVIER  JA

)
CONCUR
MPATI  JA

)
LEWIS  AJA

)