THE SOUTH AFRICAN INSTITUTE OF SHERIFFS
SHERIFFS AMENDMENT BILL (B2-98)
1. The Director General - Justice has called upon interested parties to make representations with regard to the Sheriffs Amendment Bill (B2/98). The South African Institute of Sheriffs submits these representations as a synopsis of their comments on the Bill.
2. These representations have been kept short in an effort to focus on the pivotal issues raised by the Bill and indeed the core areas in which The South African Institute of Sheriffs (hereinafter referred to as "the Sheriffs") wish the Committee to concentrate.
3. The Sheriffs would ask that the Portfolio Committee on Justice does decide to:
3.1. Hold public hearings on the Bill;
3.2. Give the Sheriffs the opportunity to appear before the Committee in the public hearing to make more extensive submissions and also to deal with any difficulties with these representations or the submissions that the Portfolio Committee may have.
B: BRIEF HISTORICAL BACKGROUND
1. The Sheriffs' perception of the most important aspects of the Historical background to the introduction of the Sheriffs Amendment Bill is as follows:
1.1. The first and most important aim of the Sheriffs Amendment Bill was to bring the Messengers of the Court of the previous TBVC States and the so-called "self governing territories" under the control and auspices of the Sheriffs Act.
1.2. The second aim was to amend certain sections of the Sheriffs Act in order to streamline the procedure.
1.3. The Minister had asked the Sheriffs profession to put together a plan of action to deal with the making of the Sheriffs profession one which is more representative of race and gender.
1.4. No real consensus has been reached amongst the Sheriffs and various parties with regard to how these aims can be achieved. The South African Institute of Sheriffs put a proposal on the table whereby the existing posts of Sheriffs in the larger towns and cities could be divided into two or more posts by demarcating the Magisterial districts into several "serving areas". This is the present position in many cities. This proposal was rejected by the attorneys profession.
C: THE MAIN FOCUS OF THE REPRESENTATIONS AND REASONS THEREFORE
1. The main focus of these representations is directed to the wording of Section 3(2) of the Sheriffs Act number 90 of 1986 ("the Sheriffs Act") and to Section 2 of the Sheriffs Amendment Bill (B2-98) ("the Sheriffs Amendment Bill").
2. Section 3(2) of the Sheriffs Act (which in terms of the Sheriffs Amendment Bill will become Section 3(2) (a) to read as follows:
"3(2) (a) The Minister may, after consultation with the Board, describe one or more areas within the area of jurisdiction of a lower or Superior Court and allocate any such area to a Sheriff of that Court."
3 In the submission of the Sheriffs very similar considerations are involved in appointing more than one Sheriff for a particular area to the considerations involved in deciding whether to describe one or more areas within the area of jurisdiction of a Court and the allocation of such area to a Sheriff.
There should not be a difference in the approach of the Minister between the two types of decisions.
4. Decisions as to the describing or prescribing of one or more areas within an area of jurisdiction of a Court or with regard to appointing more than one Sheriff for a particular area are decisions that need to be made by the Minister after he is properly appraised of all the considerations relevant to the making of the decision and the impact of the decision on the service that will be rendered in a particular area.
1. In order properly both to serve the public efficiently and economically and also to ensure that the public receives a proper professional service it would be necessary in appointing Sheriffs or in deciding whether a particular geographical area needs more than one Sheriff for a number of realities to be faced.
2. These realities are as follows:
2.1.Economically viable posts. This issue is a thorny one. Existing incumbents have the experience accurately to assess the norm required for an economically viable post. Persons outside of the Sheriffs profession will find it difficult properly to assess the norm for economic viability necessary in any particular area.
2.2. It is often so that persons outside of the Sheriffs profession (including members of the legal fraternity) underestimate the skill necessary properly and professionally to run a Sheriff's office. The Sheriffs profession is often compared to a postman with a low input cost and a small infrastructure which requires little or no experience and training. This is a misperception.
3. In order to determine what an economically viable Sheriffs post is, the Sheriffs randomly selected five Sheriffs offices from fairly small to large offices. From the statistics that were drawn a number of tendencies emerged:
THE PERCENTAGE OF DIFFERENT PROCESSES ISSUED FROM DIFFERENT COURTS
1. From the statistics reflected in Annexure "A" hereto, it is clear that an overwhelming number of documents originated from the Magistrate Court (86%) and only 14% from the High Court. A further breakdown of the figures reveals the following:
TYPE OF DOCUMENT PERCENTAGE OF DOCUMENT
High Court Magistrates' Ct
Summons, notices, subpoenas, etc 11 64
Warrant of Execution (Moveable 2 21
Warrant of Execution (Immovable Property) 1 1
Total 14 86
2. It is therefore evident that a very small percentage of the documents received by Sheriffs relate to warrants of execution over immovable property and that the bulk of the documents received consist mainly of summonses, notices and subpoenas.
3. Average revenue from different processes and Courts (see Annexure "B").
TYPE OF DOCUMENT PERCENTAGE OF DOCUMENT
High Court Magistrates' Ct.
Summons, notices, subpoenas, etc 16 41
Warrant of Execution (Moveable Property) 4 26
Warrant of Execution (Immovable Property) 9 4
Total 29 71
4. It is important to note that the income derived from High Court documents is high in relation to the income from Magistrate Court documents. The reason for this is that the tariffs for the High Court, especially for the execution of warrants against immovable property, is considerably higher than the tariffs in the Magistrates Courts. It is also important to note that notices etc in the Magistrates Court make up 64% of the documents received but only represents 41 % of the income.
Distribution of documents according to distance from the Court (Annexure "C").
1. The statistics in this regard show the great difference between the various Sheriffs offices based on the geographical division of some Magisterial districts.
2. Because the tariff increases the further you go from the seat of the Court, and therefore as a result of the travelling costs, it is obvious that the average income per document is higher in the twelve to twenty kilometre zone than it is in the zero to six kilometre zone. This leads to the situation that the Sheriff whose area of jurisdiction is situated mainly between the twelve to twenty kilometre zone (and further), earns considerably more per document than his counterpart whose area of jurisdiction is situated mainly in the zero to six kilometre and six to twelve kilometre zone. It is therefore important to take note of the various factors which make up the nature of the work and also the nature of the revenue in the service area of a Sheriff.
3. It is therefore not possible to base the division of a larger Magisterial District only on the number of documents received for service/execution. It should be based on different factors such as the geographical location of the area of jurisdiction and also the demographic circumstances that prevail in an area. One cannot compare a large township, twenty kilometres from the Court with a fairly good infrastructure such as tarred roads, street numbers, etc to an informal housing settlement (squatters) also twenty kilometres from the Court house with no infrastructure whatsoever. The problem in the second case is obvious. It takes a Sheriff longer and a greater effort to effect service or execution of a process.
4. In the process of sub-division of a Magisterial district into one or more areas, the geographical situation of each area taken together with the demographic circumstances and other relevant factors here not enumerated should be weighed together to reach an equitable division. Any future sub-division should be done only after a thorough investigation of the geographical and demographic circumstances of any particular area being looked at. The input, in the form of statistics and the experience of the present Sheriffs and the Chief Magistrate will be necessary in this regard.
5. It should be stressed that it is not possible to set a fixed norm only based on an equal number of documents per Sheriff per month and then to implement this norm countrywide. The unique circumstances of each and every Magisterial district should be taken into account before any subdivision is considered. It is a fact that an absolutely equal division will not be possible but a fairly equal division can be reached after proper investigation of the above mentioned circumstances. It is in this regard in particular that the Minister should only act after consultation and indeed perhaps in consultation with the Board. The Board in turn can appoint a task team to investigate all the different factors that can influence the setting up of an acceptable norm for various Sheriffs areas. This experience could be built on for the purpose of investigating Magisterial districts countrywide.
PROTECTION OF PUBLIC
1. For the public to be protected it is of paramount importance that the objectivity, independence and professionalism of the Sheriffs profession is protected.
1.1.THE ROLE OF THE ATTORNEYS
Since approximately 1994 the Attorneys profession in discussions between the Association of Law Societies and the Board for Sheriffs, have pressed for competition amongst the Sheriffs because of alleged "poor service" from some Sheriffs. The Attorneys profession insisted on a situation being allowed where there was competition between various Sheriffs in order to break the so-called "monopoly" that Sheriffs are alleged to have.
1.2. It is now understood that the Association of Law Societies have changed their previous viewpoint from advocating "competition between Sheriffs" to a viewpoint which advocates attorneys being allowed to serve and execute their own Court documents as well as those of other attorneys in competition with existing Sheriffs. This proposal would place the objectivity, independence and professionalism of the process server in jeopardy.
2. Before this is dealt with further, the Sheriffs would like to list hereunder a number of standard requests made by Attorneys during the course of everyday business which honest and ethical Sheriffs are obliged to resist. Examples of these requests are:
2.1 A request or even attempted instruction to collect monies in excess of the amount stipulated on a writ of execution;
2.2.A request or definite instruction that the Sheriff advise an employer to pay over an amount in excess of the amount granted in terms of a Garnishee order. A variation of this is one where a Sheriff is asked to serve a letter from an Attorney on an employer containing an instruction, to collect an amount in excess of an existing garnishee order thereby creating the impression that the letter has emanated from a Court or carries any legal weight.
2.3. Instructions to attach all moveables in a residence or business despite clear evidence of there being multiple occupation for example parents living together with married children. An attachment of all the goods in a home would have the effect that the party against whom judgement was not taken may lend the party against whom judgement was, such sums as would be necessary to release the goods from attachment.
2.4. Instructions sometimes are clearly to attach parents' moveables for the debt of a son or daughter where the same initials are in existence (and even in some cases where the same initials are not) notwithstanding the fact that the son or daughter only occupy one room and pay for lodging and that the parents state that the son or daughter does not own moveable items on the premises.
2.5. Instructions to serve documents at an address which is not an address for service as provided for by the rules, for example to serve at parents in law or other family or at a former unoccupied address.
2.6. Requests to sell moveables at the place of attachment but to forego the requirement of advertisement (so that the Attorney's client can "buy at next to nothing').
2.7.A request to make a return of nulla bona at an address other than a domicilium address, not occupied by the Defendant to enable client to proceed to sequestration application when Defendant has been located."
3. The above examples naturally are resisted by all objective independent and professional Sheriffs. The danger of so-called competition in the same area between Sheriffs is that such competition can lead to the ethical constraints on Sheriffs being tested to the point where in order to keep the work of the attorney they would act improperly and comply with requests such as made above.
4. Equally so, if attorneys are entitled to serve their own documents or even the documents of other attorneys a similar lack of ethical constraint remains possible.
5. in pointing out these examples no finger is meant to be pointed at the Attorneys profession but the point is simply made that whilst such requests are made the danger of non-independent Sheriffs or attorneys complying with such requests continues to exist.
6. Whilst a Sheriff remains the only Sheriff in a particular area their objectivity and independence is guaranteed and it would not be possible to deprive one Sheriff of certain work in favour of another Sheriff in order to avoid a Sheriff who insists in not succumbing to improper suggestions.
THE BILL AS A WHOLE
1. The Sheriffs therefore have no objection to the Bill as long as the proposed Section 3(2)(a) envisages a consultation with the Board taking place which consultation encompasses a determination of the economic viability of a post to be created as well as a consideration of the consequences of making an appointment of more than one Sheriff in an area.
2. One of the immediate and undesirable consequences of having two Sheriffs in one area relates to attachments of moveable property. If a Sheriff makes an attachment over certain goods and does not yet remove them he will be aware that he has made such an attachment at the instance of a judgement creditor. This is so because then he is the only Sheriff in that area. If however there is more than one Sheriff in an area a second Sheriff may make an attachment of the same goods and perhaps even remove the goods. It would be necessary to create a central register in which the attachment by one Sheriff of goods in an area would have to be noted so that another Sheriff in that area would be aware of the fact of the attachment. Without such a register the chaos that would ensue would be disastrous.
3. The cost of such a register in the various areas would in all likelihood be so considerable as to outweigh any advantage that may have been gained by there being "competition" between the Sheriffs of two different areas.
4. If Attorneys are allowed to perform the work of Sheriffs, it is likely that the Attorneys would eschew the ordinary and non-lucrative work such as the service of summonses, notices and subpoenas and take up such work as attachment of immovable property and sales in execution. This work is far more lucrative than the mere "document service" work. However this would mean that the Attorneys profession would be taking the "good" and not the "bad" work of the Sheriffs. It is an essential ingredient of the economic viability of a Sheriffs practise that he gets the mixture of the more lucrative work and the less lucrative work in order to make his post or office economically viable.
5. If the new proposed Section 3(2)(b) is proposed as a disciplinary section designed to supplant a Sheriff who is rendering poor service with another Sheriff then the Section should be explicit in that regard. There are in any event disciplinary procedures available in terms of the Sheriffs Act and the regulations thereto by which Sheriffs can be disciplined.
6. Legal precedent is against allowing Attorneys to act both as Deputy Sheriff in a matter and as Attorney where he has an interest in the matter. The susceptibility to gross irregularities occurring in the service of Court process i.e. false returns in order to get judgement or returns of service back-dated to escape the consequences of prescription operating are easy to foresee.
7. If certain Sheriffs or Attorneys take up only the more lucrative work such as sales in execution of fixed property, then, in order for Sheriffs to continue to function, the everyday service of documents will have to be remunerated on a higher level in order to enable the offices to continue to exist.
1. The Sheriffs are prepared to accept the challenge of competition amongst themselves as long as that competition is firmly ruled through the Sheriffs Board by ethical rules which regulate the competition and as long as the necessary channels of communication and structures (such as an attachment register are in place in order to deal with attachments in execution of moveable assets).
2. The Sheriffs are willing to concede that an Attorney should have a freedom of choice" of the Sheriff they want to use as long as the costs for the debtor involved for the service and/or execution of the Court document is not higher than the cost would be if the Sheriff for the specific area or district was used. Any additional cost incurred by the Sheriff of choice i.e. in travelling costs etc., would have to be borne by the Plaintiff and not by the Defendant. This concession is made but subject to the caveat that it may lead to unethical conduct amongst Sheriffs striving to keep the work of attorneys and "bending the rules" in order to satisfy their "client"
3. The Sheriffs feel very firmly that competition amongst Sheriffs should not lead to the disappearance of the so-called "smaller Sheriffs". Almost 80% of the Sheriffs countrywide would fall into this category. Therefore the larger Sheriffs offices in the metropolitan areas, should not be allowed to trample over their smaller colleagues by their being allowed to open "satellite offices" in neighbouring Magisterial districts. If this is allowed then not only would the smaller offices become even less economical to run than they are now, but very many Sheriffs would be deprived of a livelihood which was otherwise sustainable and which underpinned a local community or economy in some small measure. It is in particular in the rural areas that the potential for black empowerment exists.
4. The number of Sheriffs in the greater Metropolitan districts should be restricted to a number based on a scientifically calculated norm. There appears to be no sense in creating new posts for Sheriffs which posts are not economically viable.
5. The Sheriffs repeat the submissions with regard to the proposed role of Attorney in the traditional field in which Sheriffs have operated. If Attorneys are allowed to enter into the traditional domain of the Sheriffs profession then Section 53 of the Sheriffs Act should be removed from the Act to allow Sheriffs in turn to compete with Attorneys. This is however not the desired position but only a fall-back position in the event of attorneys being allowed to do the work of Sheriffs.
1. The Sheriffs are on record that they will assist the Department of Justice in the training of new appointees or interested persons and especially those from previously disadvantaged societies. The South African Institute for Sheriffs is at present engaged in training programmes countrywide but its success is hampered by a lack of funds. If Central Government through the Sheriffs Board were to provide funds for the training of Sheriffs the SA Institute for Sheriffs would be able, effectively, to train new Sheriffs. It is in particular in the former TBVC States that even existing Sheriffs may be in need of training.
2. The Sheriffs therefore have no objection to the Sheriffs Amendment Bill on condition that the old Section 3(2) and the new Section 3(2)(b) provides for decisions to be made by the Minister after or in consultation with the Board. It should be recognised that the criteria that the Board would apply would consist in the main of establishing the following:
2.1. The economic viability of the new post;
2.2. The desirability of a further Sheriff being appointed in the area given the aforesaid enumerated considerations;
2.3. The need to establish a central register of attachments to prevent the double attachment of goods;
2.4. Such other considerations as good sense and practical experience dictate should be taken into consideration.