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[2008] ZASCA 126
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Campbell v Botha and Others (683/07) [2008] ZASCA 126; 2009 (1) SA 238 (SCA) (30 September 2008)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 683/07
MURRAY ROYCE CAMPBELL
Appellant
and
WARREN BOTHA
1
st
Respondent
CINDY CLAIRE BOTHA
2
nd
Respondent
MICHELLE LYNNE BOTHA
3
rd
Respondent
PHILLIPA ELIZABETH LAWRENCE
4
th
Respondent
AMOERÉ HELEN NEL
5
th
Respondent
SHERIFF FOR THE DISTRICT OF HUMANSDOR
P 6
th
Respondent
KOUGA MUNICIPALITY
7
th
Respondent
SA HOME LOANS GUARANTEE TRUST
8
th
Respondent
REGISTRAR OF DEEDS, CAPE TOWN
9
th
Respondent
Neutral citation:
Campbell v Botha
(683/07)
[2008]
ZASCA 126
(30 September 2008)
Coram:
STREICHER, MTHIYANE, HEHER, MLAMBO JJA and LEACH AJA
Heard:
8 SEPTEMBER 2008
Delivered:
30 SEPTEMBER 2008
Summary:
Sale in execution – s 70 of the
Magistrates’ Court Act 32 of 1944 – there can be no sale
in execution without
a judgment and an attachment in execution of
that judgment.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: High Court, South Eastern Cape (Froneman
J sitting as court of first instance)
1
The
appeal succeeds with costs.
2 The order by the court a quo is substituted with the
following order:
‘1 It
is declared that
(a) The applicant is the owner of Erf 1115 Sea Vista, in the Kouga
Municipality, Division of Humansdorp, Eatern Cape Province.
(b) The applicant never lost his ownership of the erf pursuant to the
sale of the erf by the sixth respondent to the fifth respondent.
2 The other relief claimed by the applicant stands over for later
determination.
3 The first, second, third and fifth respondents are ordered to pay
the costs incurred in respect of the relief granted.’
____________________________________________________________
JUDGMENT
____________________________________________________________
STREICHER JA (
MTHIYANE, HEHER,
MLAMBO JJA and LEACH AJA
concurring)
[1]
The appellant
applied to the Eastern Cape High Court for an order declaring that he
is the owner of Erf 1115 Sea Vista situated
in the Kouga Municipality
in the Eastern Cape Province (‘the property’) and for
certain ancillary relief. The court
a quo dismissed the application
but granted the appellant leave to appeal to this court.
[2] The appellant was born on 1
January 1980. On 30 September 1998 he, assisted by his father and
natural guardian, purchased the
property for a purchase price of
R20 000. The property was transferred to him on 29 December
1998. At all relevant times he
made use of his father’s postal
address namely P O Box 5015, Helderberg, 7135. However, as a result
of a mistake either on
the part of the conveyancing attorney or the
Kouga Municipality (the seventh respondent) his address came to be
incorrectly recorded
in the records of the Municipality as P O Box
5012, Helderberg, 7135. He failed to pay the rates payable in respect
of the property
and on 12 June 2000 the Kouga Municipality issued
summons in the Humansdorp Magistrate’s Court against him for
payment of
an amount of R3 311,91 being due in respect of
outstanding rates plus interest. At that time he was still a minor
but the
Kouga Municipality failed to cite him as being assisted by
his father. It cited him as ‘M R Campbell, an adult male of
whom
further particulars are to the plaintiff unknown of P O Box
5012, Helderberg, 7135’. An attempted service of the summons by
mail was unsuccessful as a result of which the Kouga Municipality
obtained the leave of the court to effect service by way of
publication of a notice of the proceedings in the Cape Argus
newspaper. The notice was published in the Cape Argus but did not
come to the attention of the appellant or his father. No appearance
to defend was entered as a result of which a judgment by default
was
granted to the Kouga Municipality on 19 October 2000. At that time
the appellant was still a minor.
[3] A warrant of execution against the property was
thereafter issued and on 23 November 2000 the court granted leave to
the Kouga
Municipality to serve the warrant of execution by one
placement thereof in the Cape Argus. However, there is no record that
service
of the warrant was effected in terms of the court order. On
30 March 2001 the sheriff for the district of Humansdorp, sold the
property at an auction which purported to be a sale in execution.
[4] A professional assistant in the
employ of the appellant’s attorneys, Ms Vreugde, undertook a
search in the microfilm records
of the National Library of South
Africa at Cape Town. She stated that she examined every edition of
the Cape Argus published during
the period 14 November 2000 to 30
March 2001 and established that the warrant of execution had never
been published. All that had
been published was the court order
authorising service of the warrant by way of publication thereof in
the Cape Argus. That publication
took place on 2 February 2001. It
would seem that, by mistake, the court order was published and not
the warrant. Another indication
that the warrant had not been
published is the fact that Mr Nel, the attorney of the Kouga
Municipality at the time when the warrant
should have been published,
produced copies of the advertisement of the sale in the Government
Gazette and in the Herald newspaper
but could not do so in respect of
the advertisement of the warrant.
[
5] Nel
simply denied that the warrant had not been published. He stated that
Mr Coetzee who was the sheriff at the time was a meticulous
sheriff
who ensured that every procedure was followed prior to a sale in
execution; that the records on microfilm may not be complete;
and
that Vreugde may have missed the particular advertisement. The
respondents also filed an affidavit by Coetzee in which he stated
that he had been a sheriff for 39 years and that in all those years
not a single sale in execution that he had arranged had been
set
aside on the basis that he had not followed the correct procedures.
Prior to each sale he meticulously went through each and
every notice
and judicial document pertaining to the sale so as to insure that the
procedures had been followed properly. I do
not think that these
averments are sufficient to create a dispute of fact. The microfilm
records of the National Library are available
for inspection. In
addition, hard copies of the Cape Argus are kept by the National
Library as well as by the University of Cape
Town. Had the Kouga
Municipality and its attorney Nel considered it possible either that
the microfilm records were not complete
or that Vreugde failed to
conduct a proper search, they should have investigated the matter
themselves as they had been invited
to do. It is not good enough to
say that the records may be incomplete or that Vreugde may not have
searched properly or that Coetzee
was meticulous. Even meticulous
people make mistakes. For these reasons I am satisfied that the
appellant established that the
warrant had not been published.
[
6] Nel’s
wife, the fifth respondent, bought the property at the auction for an
amount of R3 500 and sold it on 6 November
2002 to the fourth
respondent for R20 000. The fourth respondent had a dwelling
constructed on the property and on 11 February
2004 she sold it at a
price of R560 000 to the third respondent. The third respondent
in turn effected certain improvements
on the property for a total
amount of R552 016,94 and on 23 March 2006 she sold an undivided
third share in the property to
the first and second respondents
jointly. The first, second and third respondents thereupon caused a
mortgage bond to be registered
over the property in favour of the
eighth respondent to secure a loan that had been granted to them.
[7] During or about July 2004 the
appellant discovered that he was no longer the registered owner of
the property. On 16 February
2005 he launched an application for the
rescission of the judgment against him. The application was dismissed
but an appeal against
such dismissal was upheld on the ground that
the judgment was void
ab
origine
on account
of the appellant’s lack of capacity to be sued. The appellant
then paid the amount claimed in the proceedings
whereupon the Kouga
Municipality withdrew the action against him and tendered a refund of
the amount paid. The tender was not accepted
by the appellant.
[8] Relying on these facts and
tendering to pay to the first, second and third respondents or to
such of the respondents as may
satisfy the court that they are
entitled to it, the difference between the value of the property with
improvements and the value
of the property without improvements, the
appellant applied for orders declaring that he is the owner of the
property and that
he never lost his ownership of the property
pursuant to the purported sale in execution. He submitted that there
could not have
been a valid sale in execution as there was no valid
judgment in existence and as there had not been an attachment of the
property.
[9]
Section 70
of the
Magistrates’
Courts Act 32 of 1944
provides:
‘A sale in execution by the messenger shall not, in the case of
movable property after delivery thereof or in the case of
immovable
property after registration of transfer, be liable to be impeached as
against a purchaser in good faith and without
notice of any defect.’
The respondents submitted that the sale was protected by
the section as the fifth respondent as purchaser had acted in good
faith
and without notice of any defect.
[
10] The
judge a quo said ‘that the purpose of
section 70
would be
undermined if courts are too easily disposed to find that
irregularities in the execution process leads to the conclusion
that
a sale in execution was a “nullity”’. He held that
at the time of the purported sale in execution there
was ‘an
actual court judgment in existence which was only set aside in
November 2005’ and added that he was ‘not
aware of
authority for the proposition that
once
immovable property has been transferred under a sale of execution
the
sale can be set aside upon the basis only of the rescission of the
original judgment’. He further assumed that only the
order
granting leave to publish the warrant of execution had actually been
published in the Cape Argus and not the warrant itself
but held that
the failure to publish the warrant was not ‘an irregularity of
such a nature to invalidate the sale in execution’.
Referring
to the fact that the publication of the summons and the judgment had
not elicited any response from the applicant or
his father and that
notice of the sale was published in the Government Gazette and the
Eastern Province Herald prior to the sale,
he concluded that the
sheriff substantially complied with what was formally required of
him.
[11] In terms of
s 70
a sale in
execution of immovable property may not be impeached after
registration of transfer as against a purchaser in good faith
and
without notice of any defect.
Section 66
provides that when a court
gives judgment for the payment of money such judgment, in case of
failure to pay such money forthwith
shall be enforceable by execution
against immovable property if there is not found sufficient movable
property to satisfy the judgment.
Such execution is to be effected by
an attachment of the immovable property and a sale of the attached
property in execution.
1
It follows that there can be no sale in execution without a judgment
and an attachment in execution of that judgment.
2
See in this regard
Reid
and another v Godart and another
1938 AD 511
where De Villiers JA said at 514:
‘
[T]he word “execution” means,
as it seems to me, “carrying out” of or “giving
effect
,” to the judgment
,
in the manner provided by law; for example, . . . by a levy under a
writ of execution.’
Referring to this passage Friedman JP
said in
Jones and
others v Trust Bank of Africa Ltd and others
1993 (4) SA 415
(C) at 419G-H:
‘
What is protected by
s 70
is a
“sale
in execution”. A sale in execution is one which follows upon a
judgment of the court. The section, which was held
in
Sookdeyi’s
case to codify the common law, does not, in my judgment, protect a
sale which does not follow upon a judgment of the court.’
3
[12]
In
Menqa and another v
Markom and others
2008 (2) SA 120
(SCA) this court had to consider the ambit of the
section. A judgment had been granted against Markom and pursuant to
that judgment
his property was attached in terms of a warrant of
execution and sold by the sheriff at a sale which was conducted as a
sale in
execution of that judgment. On appeal this court upheld the
finding of the court of first instance that the warrant of execution
was invalid in that it had been issued by the clerk of the
magistrate’s court without judicial supervision as is required
in terms of
s 66(1)(a)
as amended by the constitutional court in
Jaftha v Schoeman
and others; Van Rooyen v Stoltz and others
[2004] ZACC 25
;
2005 (2) SA 140
(CC).
4
In the judgment of the majority the absence of judicial supervision
imperilled Markom’s constitutional rights under s 26(1)
of
the Constitution and rendered the sale to Menqa invalid. Van Heerden
JA said that to hold that the provisions of s 70 rendered
such a
sale unimpeachable would defeat the purpose of the constitutional
ruling in Jaftha.
5
In a minority judgment Cloete JA, with whom Scott JA concurred,
agreed with these findings of the majority but considered it
desirable
to analyse the meaning of s 70 and provide a rational
basis for its interpretation.
6
[13] Having referred to Roman-Dutch
authors Cloete JA disagreed with passage in
Sookdeyi
and others v Sahadeo and others
1952 (4) SA 568
(A) at 572D-E where Van Den Heever JA said in respect
of s 70:
‘Had the section not contained the words “in good faith
and without notice of any defect”, a sale in execution
by the
messenger would after delivery or transfer have been absolutely
unassailable.’
He
did so in the following terms:
7
‘These dicta cannot be supported to the extent that they
suggest that s 70 limits the circumstances under which a sale in
execution in a magistrates’ court can be impugned, after
delivery of movables or transfer of immovables, to the two cases
mentioned in the section.’
I do not consider it necessary to
express a view on the correctness of Cloete JA’s view.
Van
den Heever JA did not say that absent a judgment and a attachment, a
sale would be unassailable had the purchaser acted bona
fide and
without notice of any defect. He was referring to a sale in execution
and not to a purported sale in execution. As stated
above, a sale in
execution, in the present context, is a sale following upon a
judgment and an attachment in execution of that
judgment. Without a
judgment and an attachment in execution of that judgment there can be
no sale in execution.
[
14] The
judgment which gave rise to the sale in
Sookdeyi
was a judgment against minors unassisted by a guardian. A minor has
no
locus standi in
judicio
with the
result that the judgment was void.
8
However, the judgment in fact existed and was treated as a judgment
which could form the basis of a sale in execution entitled
to the
protection afforded by s 70.
[15] In the present case the judgment
that gave rise to the sale of the property was similarly a judgment
against a minor unassisted
by a guardian and therefore void. But, as
in the case of
Sookdeyi
,
the court a quo held that the judgment did in fact exist at the time
when the sale took place and that that judgment, which was
rescinded
only after the sale, could form the basis of a sale in execution
entitled to the protection of s 70.
[16] To treat such a judgment as one
that can form the basis of a sale in execution protected by s 70
would seem to be at odds
with the following statement by Innes CJ in
Lewis & Marks v
Middel
1904 TS 291
at 303:
‘[T]he authorities are quite clear that where legal proceedings
are initiated against a party, and he is not cited to appear,
they
are null and void; and upon proof of invalidity the decision may be
disregarded, in the same way as a decision given without
jurisdiction, without the necessity of a formal order setting it
aside (Voet, 2, 4, 14, and 66; 49, 8, 1 and 3; . . ..’
Voet 49:8:3 says:
‘
But by the customs of today such over
stressful and pettifogging discussion on fine points of law as to
whether a decision is
ipso jure
void,
or holds good by strict law and must be set aside through the remedy
of an appeal, has been as far as possible abolished.
The ruling has
rather prevailed that decisions are never annulled under cover of
nullity without appealing. There are exceptions
when the nullity
arises from a lack of jurisdiction, or of summons or of an attorney’s
mandate, . . . .’
And
Voet
2:4:66 says:
‘Summons to law moreover, either verbal or physical, is the
beginning of the institution of all actions; and if it is left
out
none of the succeeding steps can hold good. The result is that a
judgment pronounced gains no force even in favour of the person
who
has not been summoned and for that reason does not appear.’
But then dealing with the fact that a
judgment in favour of a minor unassisted by his guardian is valid and
enforceable against
the other party, stated that ‘in that case
the needful constituent and foundation of the judicial proceeding was
not wanting;
for even minors, when they better their condition, have
a lawful
persona
standi in judicio
without a curator . . .’.
[17] Cloete JA
9
is of the view that Van Den Heever JA’s statement is obiter
but, in the light of the conclusion to which I have come in respect
of the attachment of the property, I do not consider it necessary to
determine whether that is in fact so or to determine whether
Van den
Heever JA was correct in considering a judgment against a minor
unassisted by a guardian to be a judgment that could form
the basis
of a valid sale in execution. In this regard it should be pointed out
that it was apparently not argued in
Sookdeyi
that the judgment could not have formed the basis of a valid sale in
execution. It would seem that the sole issue before the court
was
concerned with the incidence of the burden of proof in respect of the
bona fides or knowledge of the purchaser at the sale
in question.
10
[18
] An
attachment is effected by way of a notice by the sheriff served
together with a copy of the warrant of execution upon the execution
debtor as owner, upon the registrar of deeds, upon all registered
holders of bonds registered against the property, if the property
is
in the occupation of some person other than the execution debtor,
also upon such occupier and upon the local authority in whose
area
the property is situated.
11
Whatever the position may be if service is not effected on any of the
other interested persons there can, in my view, never be
said to have
been an attachment where neither the warrant nor the notice of
attachment had been served on or brought to the notice
of the owner.
[19] In the present case neither the
warrant nor the notice of attachment was served on the appellant and
he was unaware of the
purported sale in execution. In the
circumstances there can be no question of the sheriff having
substantially complied with what
was required for an attachment.
There had been no compliance at all. The fact that it is unlikely
that there would have been any
reaction from the appellant had the
warrant been published in the Cape Argus, as was found by the court a
quo to have been the
case, does not assist the respondents either as
such unlikelihood cannot convert a non-attachment into an attachment.
[20
] As
the property had not been attached in execution of a judgment the
sale that was conducted was not a sale in execution of the
judgment
and was therefore not protected by s 70. It was no more than a
purported sale in execution. Not having attached the
property, the
sheriff had no authority to conduct a sale thereof and to transfer
the property to the purchaser. As was said by
Maasdorp JA in
Rossouw
and Steenkamp v Dawson
1920 AD 173
at 180:
‘The Sheriff acting without authority is in no different
position to any other person acting without authority in selling
the
property of a person who has not authorised such sale.’
It follows that the appellant remained the owner of the
property.
[21
] The
parties were in agreement that if we came to this conclusion a
declaratory order in terms of prayers 1 and 2 of the notice
of motion
should be made and that the other relief claimed should stand over
for later determination. In the result the following
order is made:
1 The appeal succeeds with costs.
2 The order by the court a quo is substituted with the
following order:
‘1 It
is declared that
(a) The applicant is the owner of Erf 1115 Sea Vista, in the Kouga
Municipality, Division of Humansdorp, Eatern Cape Province.
(b) The applicant never lost his ownership of the erf pursuant to the
sale of the erf by the sixth respondent to the fifth respondent.
2 The other relief claimed by the applicant stands over for later
determination.
3 The first, second, third and fifth respondents are ordered to pay
the costs incurred in respect of the relief granted.’
__________________
P E STREICHER
JUDGE OF APPEAL
Appearances
:
For Appellant: S P Rosenberg SC
Instructed by
Lamprecht & Associates, Cape Town
C/o Joubert Galpin & Searle, Port Elizabeth
Honey Attorneys, Bloemfontein
For 1
st
to 3
rd
Respondents: B Pretorius
Instructed by
Christo Swanepoel Attorneys, Jeffreys Bay
C/o Jacques du Preez Attorneys, Port Elizabeth
Webbers, Bloemfontein
For 8
th
Respondent: W J Roos
Instructed by
Velile Tinto & Associates, Pretoria
C/o Burmeister de Lange, Port Elizabeth
Du Toit Attorneys, Bloemfontein
1
Rule 43.
2
The same view is expressed in
Joosub
v J I Case SA (Pty) Ltd and others
1992
(2) SA 665
(N) at 673C.
3
See also
Maharaj
Brothers v Pieterse Bros Construction (Pty) Ltd and another
1961 (2) SA 232
(N) at 238.
4
Menqa
paras [15]
and [28].
5
At paras [21].
6
At para [28].
7
At 140A-B.
8
Boberg’s
Law
of Persons and the Family
2 ed p 906.
9
At 139C-D.
10
Modelay v Zeeman and others
1968 (4) SA 639
(A) at 643D.
11
Rule 43(2)(a).