- Two retired sheriffs returned to fill vacant court jurisdictions after permanent replacements were not appointed.
- The Supreme Court found the South African Board for Sheriffs acted unlawfully by refusing to decide whether it would issue the licences they needed to serve.
- Acting sheriffs cannot collect, hold or pay out public money from court processes without the statutory licence that protects the public.
Two retired sheriffs who stepped back into the job to keep court vacancies from disrupting South Africa’s justice system have been barred from handling money collected through court orders unless they hold the statutory licence designed to protect the public.
Thaka Frederick Seboka and Stephanus Johannes van Wyk returned as acting sheriffs after permanent replacements were not appointed. However, their reappointments descended into a legal battle when the South African Board for Sheriffs refused to tell the Deputy Minister of Justice whether it would issue the licences required for them to serve.
In a landmark judgment, the Supreme Court of Appeal found the board acted unlawfully by refusing to make a decision, but ruled that acting sheriffs cannot collect, hold or pay out money on behalf of the public without a valid fidelity fund certificate.
Retirement became a temporary solution
Seboka served for many years as sheriff for Pretoria Central, while Van Wyk served in Potchefstroom. After both reached the retirement age of 65, the Department of Justice repeatedly appointed them as acting sheriffs because the posts remained vacant and court work had to continue.
The dispute began when a newly constituted South African Board for Sheriffs adopted a policy against recommending retired sheriffs for further appointments. Instead of approving or rejecting the appointments, the board refused to tell the Deputy Minister whether it was prepared to issue the statutory licences needed for the appointments to take effect.
That deadlock prevented the appointments from becoming effective and forced the two retired sheriffs to approach the High Court in Cape Town for relief.
Board could not refuse to decide
The High Court ruled in their favour, declaring that the board’s refusal to communicate its decision was unlawful. The board appealed, arguing that the dispute had become academic because both men had already left office.
The Supreme Court disagreed, finding that the legal questions remained important because conflicting High Court judgments had created uncertainty about the appointment of acting sheriffs across South Africa.
Acting Judge of Appeal N E Chili said the Sheriffs Act makes the appointment of an acting sheriff conditional upon written confirmation from the board that it is prepared to issue the statutory licence.
"The Board’s failure to make a decision constituted an administrative action," Judge Chili said. He said both the Deputy Minister and the two acting sheriffs were entitled to a decision and the reasons for it.
Why the licence protects the public
A fidelity fund certificate is the statutory licence that allows sheriffs to receive, safeguard and pay out money belonging to members of the public while executing court orders. Sheriffs routinely collect proceeds from property auctions, administer trust money and distribute funds arising from civil enforcement.
The Supreme Court ruled that those responsibilities cannot be performed without a valid licence, even where an acting sheriff has paid the prescribed contribution to the board.
Judge Chili said the licensing system exists to protect the public and the board against financial losses resulting from the theft or misappropriation of money or property entrusted to sheriffs.
The court rejected an earlier High Court interpretation that payment alone was enough, holding that acting sheriffs perform the same functions as permanent sheriffs and must meet the same legal safeguards.
Final order
The Supreme Court of Appeal upheld the appeal in part. It confirmed that the board acted unlawfully by refusing to decide whether it would issue the statutory licences, overturned the ruling that allowed acting sheriffs to serve without them, and ordered each party to pay its own costs.
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