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[2015] ZASCA 67
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Absa Bank Ltd v Snyman (22/2014) [2015] ZASCA 67; 2015 (4) SA 329 (SCA); [2015] 3 All SA 1 (SCA) (20 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No 22/2014
In
the matter between:
ABSA
BANK
LTD
..........................................................................................................
APPELLANT
and
JOSEPH FREDERICK
SNYMAN
..........................................................................
RESPONDENT
Neutral
citation:
Absa Bank Ltd v Snyman
(22/2014)
[2015] ZASCA 67
(20 May
2015).
Coram:
Brand, Cachalia, Shongwe, Wallis
et
Petse JJA
Heard:
7 May 2015
Delivered:
20 May 2015
Summary:
Section 63 of
Magistrates’ Courts
Act 32 of 1944
– superannuation of judgment in terms of this
section occurs unless actual execution effected within three years –
date of warrant of execution or reissued warrant in terms of
Magistrates’ Courts
rule 36
– within three year period –
of no consequence.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Blignaut J and Davis AJ, sitting as court
of first instance):
1 The appeal is
upheld.
2 The order of the
court a quo in paragraph (ii) is set aside.
3 The question
whether the sale in execution took place contrary to the provisions
of
s 63
of the
Magistrates’ Courts Act 32 of 1944
is
referred back to the court a quo.
4 The respondent
shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of service of this order upon
him at the behest of the
appellant’s attorneys.
5 The appellant
shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of receipt of the respondent’s
affidavit, or
failing which, within 30 days of this order.
6 The application in
the court a quo may be set down on a date to be determined by the
registrar of that court.
7 The costs of
appeal shall stand over until finalisation of the matter in the court
a quo. The appellant is granted leave to apply
to this court for an
order awarding the costs of appeal in its favour, provided the
application for such an order is filed with
the registrar of this
court within 21 days of the decision of the court a quo, failing
which there will be no order as to the costs
on appeal.
JUDGMENT
Brand
JA
(Cachalia, Shongwe, Wallis
et
Petse JJA concurring):
[1]
The appellant in this appeal is Absa Bank Ltd (Absa) while the
respondent is Mr J F Snyman (Snyman). The subject of their dispute
is
a house situated at 35 Watsonia Street, Panorama, Robertson in the
Western Cape, with the Deeds Office description of Erf 2866,
Robertson (the property). Snyman was the owner of the property.
Technically it was registered in the names of both Snyman and his
wife, to whom he is married in community of property. But since Mrs
Snyman was never joined as a party to these proceedings and
Snyman at
all times also acted on her behalf, I shall refer to him as acting,
not only for himself, but also as a representative
of his wife.
[2]
During 2005 Snyman caused a bond to be registered over the property
in favour of Absa. In terms of the bond, Snyman acknowledged
his
indebtedness of R82 000 towards capital owing to Absa and
R20 000 in respect of costs, as defined in the bond. As
is usual
with bonds of this kind, this one provided that if Snyman were to
default on the payment of any instalment due, Absa would
be entitled
to institute proceedings for all amounts outstanding, as well as for
an order declaring the property executable. When
Snyman fell into
arrears with his bond instalments, Absa issued summons against him
out of the Robertson Magistrates’ Court
for an amount of
R89 690.46, together with interest and costs, as well as for an
order declaring the property executable.
[3]
Despite personal service of the summons on Snyman and his wife, they
entered no appearance to defend. In consequence, default
judgment in
accordance with the terms sought in the summons was granted by the
magistrate, Mr H Folscher, on 18 December 2007.
On the same day a
warrant of execution was issued against the property. For some reason
not revealed in the papers, the warrant
remained dormant until
sometime in 2010. It was then reissued by the clerk of the Robertson
Magistrates’ Court. The exact
date of the reissue subsequently
proved to be of some significance. I shall return to that matter in
due course.
[4]
The reissued warrant of execution was served on Snyman personally on
1 February 2011. As with the summons, this again elicited
no response
from him. In the result the property was sold in execution. At the
auction sale, which was attended by Snyman, the
property was
purchased by Mr E J van Tonder for R95 000. On 15 December 2011
Van Tonder gave notice to Snyman to vacate the
property. When he
failed to do so, Van Tonder brought an application for his eviction
in terms of the Prevention of Illegal Eviction
from and Unlawful
Occupation of Land Act 19 of 1998 (PIE). The application was set down
for 9 February 2012. On that day Snyman,
for the first time, opposed
the relief sought. At that stage he was represented by an attorney
from the Legal Aid Board. But when
the matter was eventually heard on
16 February 2012, his attorney had in the meantime withdrawn. The
magistrate, Mr Folscher, took
the view that Snyman had no defence to
the application, and granted the eviction order which directed Snyman
to vacate the property
by 11 May 2012, failing which the sheriff was
authorised to evict him on 14 May 2012.
[5]
That galvanised Snyman into action. On 14 May 2012 he brought an
application in the Western Cape Division of the High Court
in Cape
Town for the review and setting aside of one or more of the decisions
of the magistrate. The notice of motion was signed
by Snyman in
person. Although the suggestion was that Snyman had received some
help from non-profit aid organisations, I infer
from the way in which
his founding papers were drafted, that those representing him were
not legal practitioners with experience
of any note. I say this
because the papers do not identify the decisions sought to be set
aside, as of course, they should. Nor
do they set out the grounds of
review relied upon or the factual basis advanced for those grounds.
Instead, Snyman made wild, unsubstantiated,
vexatious and even
defamatory statements against all and sundry. So, for example, he
alleged that the magistrate and the sheriff
were racists who
conspired with Absa to extract payment from him pursuant to a bond
which he described as entirely forged and fictitious.
His conduct is
to be deprecated. Be that as it may, when the matter came before
Blignaut J and Davis AJ in the court a quo, they
concluded, however,
that in accordance with a benevolent interpretation of Snyman’s
papers, he sought to review and set aside
three orders, to wit: (a)
the default judgment of 18 December 2007; (b) the sale in execution
of the property on 6 December 2011;
and (c) the eviction order of 16
February 2012.
[6]
In due course the court a quo (Davis AJ with Blignaut J concurring)
held that Snyman had failed to make out a case for the review
of the
default judgment. Accordingly, para (i) of the court a quo’s
order dated 9 September 2013, provided that the application
for the
setting aside of the default judgment, was dismissed. On the other
hand, the court held the sale in execution to be null
and void, and
para (ii) of its order thus set that sale aside. The result was that
Snyman was held not to have been in unlawful
occupation of the
property and that the eviction order of 16 February 2012 was bound to
be set aside on that ground alone. But,
the court a quo went further.
It also held that Van Tonder had in any event failed to satisfy the
requirements of PIE. For this
reason too the eviction order was set
aside in terms of para (iii) of the court a quo’s order.
[7]
Subsequently, Absa sought leave from the court a quo to appeal
against para (ii) of the order, which pertained to the validity
of
the execution sale, as well as the setting aside of the eviction
order in terms of para (iii). In the event, the court a quo
granted
leave to appeal to this court against para (ii) of the order, but not
against para (iii). Since Snyman did not seek any
leave to
cross-appeal against the order in terms of para (i), the issues on
appeal were thus confined to those pertaining to the
validity of the
execution sale, which was set aside in terms of para (ii).
[8]
On appeal, the heads of argument by Snyman were signed and filed by
him personally. But it seems that they had been drafted
by the same
person who assisted him in preparing his papers in the court a quo. I
say that because these heads were accompanied
by a document entitled
‘Request to Continue as Friend of Court’ and signed by
someone who described himself as Professor
Jozana Ka Mahwanqa of the
Human Rights and Public Interest Law Forum in Port Elizabeth. In this
document the signatory averred
that he (Ka Mahwanqa) represented
Snyman in the court a quo and therefore sought leave to continue
representing him in this court,
‘in terms of the Amicus Curiae
principle’. In answer to this document Ka Mahwanqa was
informed, through the registrar
of this court, (a) that if he wanted
to be admitted as an amicus curiae, properly so called, he should
bring an application in
terms of rule 16 of this court within a
stipulated period, and (b), since it appeared that he was in fact
seeking to represent
Snyman, he would only be allowed to do so if he
was an admitted advocate or attorney with a right of appearance in
this court.
[9]
Although there was no response to the registrar’s letter, Ka
Mahwanqa made an appearance at the hearing of this matter
and
announced that he was representing Snyman. He informed us that he was
a professor of law, but did not respond to the enquiry
as to the
university or institution where he held this chair. He also told us
that Snyman was not present in court, but that Snyman
did not seek a
postponement so as to enable him to attend. Ka Mahwanqa conceded that
he was not an admitted advocate or attorney
with right of appearance
in this court. He nonetheless sought our permission to address us on
behalf of Snyman, because he had
been allowed to do so in the court a
quo. We then made it plain to him that, whatever happened in the
court a quo, he had no right
of appearance and that we could
therefore not allow him to do so. In the result Snyman was not
represented in the appeal.
[10]
In the heads of argument signed and filed by Snyman, he sought to
raise the correctness of the court a quo’s refusal
to set aside
the default judgment granted against him in the magistrates’
court, which is reflected in para (i) of the court’s
order. But
I agree with Absa’s argument that this court only has
jurisdiction to hear an appeal against an order of the high
court if
leave to do so had been granted by that court or, in the event of a
refusal by that court, by this court. The same holds
true of para
(iii) of the order. Absent any leave to appeal, we have no
jurisdiction to entertain any argument against it (see
eg
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
[2015]
ZASCA 25
(20 March 2015) para 14). As a matter of law, our focus must
therefore be confined to the order in para (ii).
[11]
Central to the court a quo’s reasoning underlying that order
stood the statement in the answering affidavit by the magistrate
–
who was cited as a respondent in the review proceedings – that
the warrant of execution against the property was
issued on 18
December 2007 and reissued by the clerk of the court on 18 December
2010. Relying on that statement, the court a quo
held that the
reissued warrant, on the strength of which the execution sale was
held, fell foul of s 63 of the Magistrates’
Courts Act 32
of 1944 (the Act), read with rules 36(1) and (5) of the Magistrates’
Courts rules. These enactments provide:
‘
63
Execution to be issued within three
years
Execution against
property may not be issued upon a judgment after three years from the
day on which it was pronounced or on which
the last payment in
respect thereof was made, except upon an order of the court in which
judgment was pronounced or of any court
having jurisdiction, in
respect of the judgment debtor . . . .’
Rule
36 provides in relevant part:
‘
Process
in execution
36
(1)
The process for the execution of any judgment for the payment of
money, for the delivery of property whether movable or immovable,
or
for ejectment shall be by warrant issued and signed by the registrar
or clerk of the court and addressed to the Sheriff.
. . .
(5)
The registrar or clerk of the court shall at the request of a party
entitled thereto reissue process issued under subrule (i)
without the
court having sanctioned the reissue.’
[12]
Starting out from these provisions, the court a quo’s
reasoning, as appears from its judgment (paras 47-53), went along
the
following lines:
‘
The
record of the default judgment proceedings, read together with the
magistrate’s affidavit, reveals that the default judgment
was
granted on 18 December 2007 and a warrant of execution against
immovable property was issued on the same day. On 18 December
2010,
the clerk of the court reissued the warrant of execution against
immovable property, and the property was attached and sold
in
execution on the strength of the reissued warrant.
The crisp question,
therefore, is whether or not it was competent for the clerk of the
court to reissue the warrant of execution
on 18 December 2010 without
sanction of the court.
It is clear that
section 63
of the
Magistrates’ Courts Act operates
to prohibit
the issue of process in execution after
three years from the date
of the judgment
, unless authorised by an order of court sought by
the judgment creditor on notice to the judgment debtor. The question,
then, is
how the relevant period of three years is to be calculated.
The computation of
calendar years is governed by the civil method of computation. (See
Fouche v Mutual Fire and General Insurance Co Ltd
1969 (2) SA
519
(D) at 522H-523B . . .). This method involves including the first
day of the period and excluding the last. When the civil method
of
computation is applied to the facts at hand, the result is that the
three year period referred to in
section 63
of the
Magistrates’
Courts Act commenced
on 18 December 2007 and expired at midnight on
17 December 2010.
That being the case,
it follows that the default judgment became superannuated at midnight
on 17 December 2010, and the prohibition
in
section 63
operated with
effect from 18 December 2010 to preclude the issue of any process in
execution thereof without an order of court.
It was therefore not
competent, in my view, for the clerk of the court to reissue the
warrant of execution on 18 December 2010
in terms of
rule 36(5)
, and
the reissued warrant was invalid for non-compliance with
section 63
of the
Magistrates’ Courts Act
. . .
A valid warrant of
execution is clearly a pre-requisite for a valid attachment of
immovable property . . . As such, it is an essential
formality for a
valid sale in execution. The invalidity of the warrant of execution
carries the consequence that the property was
not validly attached
and the subsequent sale in execution was therefore a nullity . . . .
[13]
Absa’s first challenge to the correctness of this conclusion
was aimed at its factual foundation. In this regard Absa
pointed out
that, according to the date stamps of the clerk of the court, which
appear on the reissued warrant, it was issued either
on 22 April 2010
or on 8 December 2010. The date referred to by the magistrate in his
affidavit, ie 18 December 2010, does not
appear on that document at
all. In addition, it transpires that 18 December 2010 was a Saturday.
On the probabilities, so Absa’s
argument went, the date
referred to in the affidavit, which formed the sole basis of the
court a quo’s conclusion, was nothing
more than a typographical
error and the crucial finding based on that error was therefore
incorrect. On the face of it, the argument
appears to be
unanswerable. But, on reflection and – as was rightly and
fairly pointed out to us by Absa’s counsel
on appeal –
the court a quo’s mistake turns out to be of no consequence,
because it was cancelled out, as it were,
by the court’s
further mistake in the interpretation of
s 63
read with
rule
36(5).
On the court’s interpretation of
s 63
, the period
of three years contemplated in the section – also referred to
as the period of superannuation – limits
the time period within
which a warrant of execution may be validly issued or reissued. In
consequence, the effect of superannuation
may be stopped by the issue
of a warrant of execution. Moreover, so the court obviously
concluded, the period of superannuation
can be extended –
presumably for another period of three years – by the reissue
of a warrant under
rule 36(5)
as long as the reissue occurs within
the three year period.
[14]
A number of older cases preceding the Act were also capable of the
interpretation that superannuation – the period of
which was
then a year and a day – determined the time during which a
warrant of execution may be issued, and that, once that
had happened,
superannuation could be avoided by the issue of further warrants.
(see eg
Auret v Van Der Berg
1911 CPD 1043
at 1044). Later
cases, however, held that a warrant of execution, even though issued
within the stipulated period, could not save
a judgment from
superannuation, unless it was acted upon within a year and a day from
date of judgment (see eg
Rigg v Strydom
1914 CPD 583
;
Bezuidenhout v Deyzel
1915 CPD 458
at 460). In the case of a
judgment sounding in money, the result was that the execution sale
had to occur within that period. I
agree with the author D E van
Loggerenberg of
Jones & Buckle The Civil Practice of the
Magistrates’ Courts in South Africa
10 ed (2012) vol 1, in
his commentary on s 63, that the later cases also reflect the
correct interpretation of this section.
Purely on the basis of logic,
the legislature’s intent could hardly have been that a judgment
creditor can delay execution
of a judgment indefinitely as long as he
or she had obtained a warrant of execution within three years and
caused it to be reissued
on a regular basis thereafter. Secondly, the
legislature must be presumed to have been aware of the law, as
represented by these
later decisions, when the
Magistrates’
Courts Act was
promulgated in 1944. Thirdly, the Afrikaans text,
which was signed by the executive, renders the position even clearer.
It provides:
‘
Ten
uitvoerlegging teen goedere kan nie uit hoofde van ‘n vonnis
geskied
na
verloop van drie jaar vanaf die datum waarop dit gefel is . . . nie .
. .’(My emphasis.)
[15]
Properly construed,
s 63
therefore provides that a judgment
sounding in money becomes superannuated, unless the execution sale
takes place within three
years of that judgment. Hence the date on
which the warrant of execution is issued, is of no consequence. It
goes without saying
that
rule 36(5)
cannot change the meaning of s 63
of the Act. It follows that the date of reissue of a warrant under
this rule cannot avoid
superannuation once the three year period from
date of judgment elapses. In this context, it is equally of no
consequence. Extension
can only occur by order of court, which was
admittedly not obtained by Absa in this case. It follows that the
question whether
or not the reissue occurred on 18 December 2010 or
on an earlier date, is of no consequence. What is relevant, is the
date of the
sale in execution, which was 6 December 2011. This was
clearly more than three years after the date of judgment on 18
December
2007. If this was the end of the matter, the court a quo
would therefore have been correct in finding – albeit for
different
reasons – that the reissued warrant, on the strength
of which the property was sold in execution was null and void.
[16]
As it happens, however, this is not the end of the matter. Absa’s
further argument was that the court a quo’s reasoning
reflects
another mistake in that it had failed to have regard to the
alternative date for the commencement of the superannuation
period
contemplated by s 63, that is, the date ‘of the last
payment in respect’ of their judgment. It follows
that the
reissued warrant would still be valid if the last payment by Snyman,
in respect of his bond debt, was made less than three
years prior to
6 December 2011, ie after 5 December 2008. In this regard it is
pertinent, so Absa pointed out, that according to
Snyman’s
founding affidavit, he still made payments to Absa in settlement of
his bond debt in 2008. It is true, so Absa argued,
that the date
during 2008 is not mentioned by Snyman, but since he bore the onus to
establish the facts upon which his review application
relied, it was
for him to allege and prove that the last payment was made prior to 5
December 2008.
[17]
Although there is obvious merit in Absa’s argument, it left me
with a sense of unease. The reason is that I simply cannot
discount
the real possibility that the date of payment was indeed more than
three years before the date of the execution sale,
but that the
unrepresented Snyman had failed to raise it, since he did not
appreciate its significance. The unpalatable consequence
would be
that a poor man’s house – which he had bought in 1997 –
would be sold on the strength of a warrant which
was possibly
invalid. In addition, during the course of argument with reference to
payments that were made in settlement of the
bond debt after the date
of judgment, it became apparent that the amount for which the warrant
was reissued in 2010 remained virtually
the same as the amount of the
original judgment debt in December 2007. On the face of it, payments
made in settlement after 2007
had therefore not been taken into
account. That would be in conflict with the following statement by D
R Harms et al
Civil Procedure in the Magistrates’ Courts
(2011) at B36.13 with which I find myself in full agreement:
‘
The
wording of the warrant may not exceed or vary the scope of the
judgment on which it is founded. If, however, the judgment has
been
satisfied in part, the warrant must be issued for the unsatisfied
portion only.’
[18]
In this light, counsel for Absa fairly conceded that the appropriate
order would be to refer the matter back to the court a
quo with the
specific direction to determine, after receiving such further
evidence as the parties may wish to present, whether
the sale in
execution took place contrary to the provisions of s 63 of the
Act. As to the matter of costs on appeal, I find
it appropriate that
this should stand over until proceedings in the court a quo have been
finalised.
[19]
In the result it is ordered:
1 The appeal is
upheld.
2 The order of the
court a quo in paragraph (ii) is set aside.
3 The question
whether the sale in execution took place contrary to the provisions
of
s 63
of the
Magistrates’ Courts Act 32 of 1944
is
referred back to the court a quo.
4 The respondent
shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of service of this order upon
him at the behest of the
appellant’s attorneys.
5 The appellant
shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of receipt of the respondent’s
affidavit, or
failing which, within 30 days of this order.
6 The application in
the court a quo may be set down on a date to be determined by the
registrar of that court.
7
The costs of appeal shall stand over until finalisation of the matter
in the court a quo. The appellant is granted leave to apply
to this
court for an order awarding the costs of appeal in its favour,
provided the application for such an order is filed with
the
registrar of this court within 21 days of the decision of the court a
quo, failing which there will be no order as to the costs
on appeal.
_____________________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: P Coetsee SC and L N Wessels
Instructed by:
Sandenbergh Nel Haggard, Bellville.
c/o
Spangenberg Zietsman & Bloem, Bloemfontein
For
the Respondent: No appearance