An aid to “process-in-aid” – high court applications to execute on immoveable property using a Magistrate’s Court order

“My momma always said, life is like a box of chocolates. You never know what you are going to get.”

 While this is a cliché nowadays, when Forrest Gump (Tom Hanks) said this in 1994 while sitting on a bench waiting for a bus, we speculate that he probably did not think it would apply to so many different scenarios we face each day in our lives, let alone as a reference to process-in-aid applications in South Africa 28 years later.

As a judgment creditor, it is not impossible to obtain High Court orders to enforce, or execute on, a court order originating from a Magistrate’s Court. Oftentimes, it is preferred to execute Magistrate’s Court orders in the High Court because it is “more efficient” and “less technical”. This is more true for judgment creditors seeking orders to deem immovable property specially executable. Some legal commentators may even say that some magistrates simply do not grant these applications to deem immovable property specially executable. But approaching the High Court to enforce an order from the Magistrate’s Court is not without tricks and traps and may not be successful in all cases. You never know what you are going to get.

“Process-in-aid” is a discretionary remedy and it is a way for a High Court to successfully enforce a judgment granted by a lower court when that lower court’s own procedures are ineffective.[1] Although process-in-aid is sometimes permitted by virtue of a statutory provision or a rule of court,[2] it is an incident of a superior court’s ordinary jurisdiction.[3]

The concept of “process-in-aid” has recently arisen in Johannesburg High Court judgments, notably in relation to a court-appointed administrator of a body corporate attempting to obtain orders deeming immoveable property specially executable in terms of Uniform Rule of Court 46A (“Rule 46A”). Rule 46A came into effect in December 2017 to aid the South African courts’ approach regarding factors to be considered when exercising judicial oversight for the execution of immovable property, and taking into account the constitutional right to have access to housing (s 26 of the Constitution).

The Mohloki Judgment

In the reported judgment of Van den Bos N.O. v Mohloki[4] (“Mohloki”), the applicant (a judgment creditor), who was the administrator of a body corporate, applied to the High Court to come to their aid and grant relief based on orders of another court (the Johannesburg Magistrate’s Court).[5] The orders on which this application was based were obtained from the Johannesburg Magistrate’s Court pursuant to arrear levy claims of the body corporate against certain unit owners.[6] The Magistrate’s Court is more than capable of granting the same relief to declare immovable property specially executable in terms of Magistrate’s Court Rule 43A.[7] In any event, the applicant had not satisfied all of the requirements of process-in-aid.[8] Consequently, the High Court dismissed the application.[9]

The Court in Mohloki emphasised that an incorrect perception was employed by the applicant when stating that the High Court has jurisdiction and approaching their arguments from that angle.[10] The High Court clarified that it was not a question of jurisdiction, as it accepted there was jurisdiction, and the High Court confirmed that it could not refuse to hear such an application on the basis of a lack of jurisdiction.[11] The question was rather whether the applicant has satisfied the High Court in respect of the elements of process-in-aid.[12] The applicant was implored to rather argue why the High Court was to grant the discretionary relief instead of the lower court in order to meet the requirements of process-in-aid.[13]

In Mohloki, the applicant had not demonstrated in his affidavits why the High Court had been asked to enforce the orders of the Magistrate’s Court or why the available remedies in that lower court are not being used or are ineffective.[14]

The most prominent case applied in Mohloki was the Constitutional Court case of Bannatyne v Bannatyne and Another[15] (“Bannatyne”) which carefully contextualises the appropriate application of this remedy, albeit in relation to the enforcement of maintenance orders. Bannatyne’s expansion of the circumstances in which the High Court would, and should, grant process-in-aid included instances in which there was sufficient and compelling reason for the court to do so, as opposed to whether there are effective remedies in the other court.[16]

The applicant in Mohloki had failed to make out a case in his affidavits for why there is a sufficient and compelling reason for the High Court to enforce the magistrates’ orders.[17] Although the applicant’s counsel argued that the Magistrates’ Courts remedies were ineffective due to shortcomings, or a refusal, or reluctance to issue such orders, these were submissions made merely from the bar.[18] No evidence was presented to the High Court to support these claims and allow the High Court to decide whether to grant any process-in-aid.[19]

The Mogoane Judgment

In juxtaposition with Mohloki, process-in-aid was applied in a recent case (also out of the Johannesburg High Court) with the same judgment creditor, against a different debtor, and the opposite result was achieved. In the unreported judgment of Van den Bos N.O. v Mogoane and Others[20] (“Mogoane”) the order sought from the High Court was granted and the immoveable property was deemed specially executable, notwithstanding that the underlying judgments originated from the Magistrate’s Court.[21]

It is submitted that not all legal representatives will be able to state under oath, in an affidavit, that the Magistrates’ Courts are not ordering immoveable property specially executable in any of previous applications in any of the jurisdictions in which they operate, and that not a single one was granted.[22] This seems to have been one of the main differences between Mohloki and Mogoane.

 Process-in-aid is a discretionary remedy and is not typically granted where there are available appropriate remedies in a lower court.[23] To be successful in the application, the applicant would need to demonstrate that there is a sufficient and adequate basis for the High Court to enforce the judgment of another court.[24] The Constitutional Court further acknowledged that there may be situations when the facts of a particular case necessitate approaching the High Court for such relief.[25]

In the community scheme environment, when pursuing the collections of judgment debts, declaring an immovable property, such as a primary residence, specially executable is a complicated, yet viable, and often necessary process to be followed. The decisions on all the above-mentioned judgments indicate the importance of setting out sufficient and good reasons in an application which would amount to process-in-aid.

Practically, when judgment is obtained in the Magistrate’s Court, and the judgment creditor is in the position to execute on the immoveable property, then the best course of action may be to first approach the relevant Magistrate’s Court in terms of s 66 of the Magistrates’ Courts Act[26] and Rule 43A of the Magistrate’s Court Rules. If that application fails, there may be scope for a review or appeal to the High Court. In certain circumstances, approaching the Magistrates’ Courts may be preferential to filing an application under Rule 46A in the High Court for the enforcement of a Magistrate’s Court judgment. The risk of failing in the High Court (where the presiding judge refuses to grant process-in-aid) and receiving an adverse costs order from the High Court, and ultimately expensing more legal fees than necessary, may be unwise.

As pronounced by the High Court in Mogoane, the presiding officer would be failing in their constitutional duty to administer justice equitably if cases are repeatedly prolonged and not heard as promptly as possible.[27] Magistrates swear an oath to respect, protect and defend the Constitution and to administer justice impartially and without fear, favour or prejudice to all people.[28]

A magistrate who intentionally delays granting orders on a general belief that it is not in the interests of justice to grant such orders, is not only failing to uphold his or her constitutional duty to resolve the dispute, but also failing to uphold the magisterial oath.[29]

[1] Bannatyne paras 20 and 21.

[2] Ex Parte Rabinowitz NO: In re Estate Sirkin v Zahrt 1948 (4) SA 286 (SWA) at 288.

[3] Riddle v Riddle 1956 (2) SA 739 (C) at 745H.

[4] Van Den Bos N.O. v Mohloki and Others AND Van Den Bos N.O v Ngcameva and Another 2022 (2) SA 616 (GJ) (2 September 2021), accessible at http://www.saflii.org/za/cases/ZAGPJHC/2021/395.html.

[5] Mohloki paras 6 and 25.

[6] Mohloki para 4.

[7] Mohloki para 13.

[8] Mohloki para 25.

[9] Mohloki para 26.

[10] Mohloki para 12.

[11] Mohloki para 9 read with Standard Bank of SA Ltd and Others v Thobejane and Others; Standard Bank of SA Ltd v Gqirana NO and Another 2021 (6) SA 403 (SCA) (25 June 2021), accessible at http://www.saflii.org/za/cases/ZASCA/2021/92.html.

[12] Mohloki para 21.

[13] See Dreyer v Wiebols and Others 2013 (4) SA 498 (GSJ) (5 December 2012) paras 10 and 11, accessible at http://www.saflii.org/za/cases/ZAGPJHC/2012/247.html. The applicant in Dreyer similarly did not appear to appreciate that he was seeking a form of process-in-aid but was required to satisfy the requirements for that relief.

[14] Mohloki para 20

[15] 2003 (2) SA 363 (CC) (20 December 2002), accessible at http://www.saflii.org/za/cases/ZACC/2002/31.html.

[16] Mohloki paras 20 and 23.

[17] Mohloki para 13, and Bannatyne para 22.

[18] Mohloki para 20.

[19] Mohloki para 20, and footnote 13. The Court in Mohloki  noted that this was in contrast to Bannatyne, where the amicus curiae presented evidence based data on the state of the South African maintenance system and its adverse effects on the rights of women and children. The evidence in Bannatyne provided context for the limitations of the maintenance system’s operation as well as for the promotion and advancement of gender equality. The Constitutional Court in Bannatyne determined (in para 31) that there were “good and sufficient circumstances” for the High Court to grant process-in-aid for the purpose of enforcing maintenance orders issued by the maintenance courts.

[20] Van den Bos N.O. v Mogoane and Others (2021/5838) [2022] ZAGPJHC 576 (18 August 2022), accessible at http://www.saflii.org/za/cases/ZAGPJHC/2022/576.html.

[21] Mogoane paras 25 and 27.

[22] Mogoane para 15.

[23] Bannatyne para 21 and Mohloki para 16.

[24] Bannatyne para 22.

[25] Bannatyne para 22 and 23.

[26] Act 32 of 1944.

[27] Mogoane para 18.

[28] Mogoane para 18 and 19.

[29] Mogoane para 19.