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[2007] ZASCA 172
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Menqa and Another v Markom and Others (604/06) [2007] ZASCA 172; [2007] SCA 172 (RSA); [2008] 2 All SA 235 (SCA); 2008 (2) SA 120 (SCA) (30 November 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE
NO: 604/06
Reportable
In
the matter between:
DESMOND
MENQA
................................
First
Appellant
OWEN
PETER ROUX
................................
Second
Appellant
and
PATRICK
MARKOM
................................
Respondents
and 7
Others
Coram
:
Scott
,
Cloete, Van Heerden, Jafta JJA et Kgomo AJA
Heard:
5 November 2007
Delivered:
30 November 2007
Summary:
Sale in execution of residential property – s 66(1)(a) of
Magistrates’ Courts’ Act 32 of 1944 – warrant
of
execution invalid as issued by clerk of magistrate’s court
without judicial oversight as required by Jaftha v Schoeman;
Van
Rooyen v Stoltz 2005 (2) SA 140 (CC) – sale in execution also
invalid and not saved by s 70 of Act 32 of 1944 – sale
in
execution and all subsequent sales of property declared null and void
– appropriate remedy
Neutral
citation: This judgment may be referred to as
Menqa
& Another v Markom & Others
[2007]
SCA 172 (RSA)
JUDGMENT
VAN HEERDEN JA:
Introduction
This
is an appeal against a judgment and order of the Cape High Court
(Zondi AJ) confirming a rule
nisi
in terms of which, inter
alia, the sale in execution of a certain residential property,
namely erf 23584 Maitland, situated at 17
Camden Street, Maitland
(‘the property’), as well as all subsequent sales of the
property, were declared to be null
and void. The first respondent in
this appeal – which is before us with the leave of the court a
quo – was the applicant
in the court a quo, while the first
and second
appellants
were cited as the
first and second respondents. For the sake of convenience, I shall
refer to the parties either by their names
or by their respective
designations in the court below.
The
applicant, Mr Patrick Markom (‘Markom’), bought the
property from a deceased estate during 1995 for R120 000.
It
was occupied at the time by the sixth respondent, Mr Jules Tromp
(‘Tromp’), in terms of a lease with the previous
owner.
The executor of the deceased estate terminated the lease and gave
Tromp notice to vacate the property by 1 June 2005, which
the latter
failed to do. On 4 June 1995, during a visit to the property by
Markom, a scuffle broke out between him and Tromp which
gave rise to
a claim for damages for personal injury instituted by Tromp against
Markom during September 1996. This culminated,
on 19 November 1999,
in a default judgment being granted by the magistrate’s court
against Markom for an amount of R98 665.45
together with
interest and costs. It is that judgment which formed the basis of
the sale in execution which is in issue in these
proceedings.
According
to Markom, who had in the interim taken transfer of the property, he
only became aware of the default judgment some four
years later,
when a notice was served at the property on Thursday 13 November
2003, notifying him of a sale in execution of the
property scheduled
for Monday 17 November 2003. Markom moved into the property some
time before it was registered in his name and,
since then, has been
residing there with his family.
On
the morning of 17 November, Markom applied for and obtained, on an
urgent basis, an interim order staying the sale in execution
of the
property, pending an application for rescission of the default
judgment to be brought by him within ten days. By the time
this
interim order was received by the sheriff, the sale in execution had
already taken place. The second respondent, Mr Owen Roux
(‘Roux’),
bid for the property and signed the conditions of sale on behalf of
the first respondent, Mr Desmond Menqa
(‘Menqa’). The
selling price was R110 000.
On
1 December 2003 Markom launched an application for rescission of the
default judgment granted against him. The application was
set down
for hearing in the magistrate’s court on 19 January 2004, but
was dismissed on that date because of the non-appearance
of either
Markom or his attorney. On 29 February 2004 Markom gave notice of an
appeal to the Cape High Court against the order
dismissing his
rescission application. He subsequently withdrew this appeal on 27
August 2004, on which date he applied for rescission
of the judgment
dismissing his first application for rescission. This second
application was dismissed during November 2004 and
written reasons
for this order were furnished on 18 August 2005. On 9 September
Markom, still not discouraged and now acting in
person, noted an
appeal to the Cape High Court against the dismissal of his second
application. This appeal was set down for hearing
on 25 November
2005. On that date, it was postponed
sine die
in order for
pro bono
counsel to be appointed to represent him.
In
the meantime, on 7 September 2005, the property was transferred to
Menqa and the bond over the property in favour of Nedbank
was
cancelled.
1
Menqa paid the full purchase price of R110 000, plus interest in the
amount of R22 941.78. In addition he paid arrear rates on
the
property in the amount of R1 812.24 and legal costs of R6 475.32.
The total amount paid by him was thus R141 229.32. The purchase
price plus interest was paid over to the sheriff who in turn paid
R103 331.33 to Nedbank to settle the bond over the property and
R26
610.45 to Tromp’s attorneys. On 6 December 2005, Menqa sold
the property to Roux for the sum of R490 000. At the time
of the
institution of the proceedings in the court below, the transfer of
the property to Roux was still pending and it was this
transfer that
Markom sought to interdict.
Judgment of the Cape High Court
In
consequence of the judgment of the Constitutional Court in
Jaftha
v Schoeman & Others; Van Rooyen v Stoltz & Others
,
2
the court a quo held that the sale in execution was invalid as the
warrant of execution pursuant to which the sale had taken place
had
been issued by the clerk of the magistrate’s court, without
judicial supervision as required by the provisions of
s 66(1)
(a)
of the Magistrates’ Courts Act 32 of
1944 (‘the Act’).
3
The
Consitutional Court in
Jaftha
declared s 66(1)
(a)
of
the Act (as it then read) to be ‘unconstitutional and invalid’
in that it failed to provide for judicial oversight
over sales in
execution of the immovable property of judgment debtors. In her
judgment, Mokgoro J (writing for a unanimous court)
held that the
section constituted an unreasonable and unjustifiable limitation of
the fundamental right of access to adequate housing
protected by s
26(1) of the Constitution:
‘
I
have held that s 66(1)
(a)
of the Act is over-broad and constitutes a violation of s 26(1) of
the Constitution to the extent that it allows execution against
the
homes
4
of indigent debtors, where they lose their security of tenure. I
have held further that s 66(1)
(a)
is not justifiable and cannot be saved to the extent that it allows
for such executions where no countervailing considerations
in favour
of the creditor justify the sales in execution.’
5
In
order to remedy this constitutional defect, the court ordered that
s 66(1)
(a)
should be
amended by a ‘reading in’ of the words underlined below:
‘
Whenever
a court gives judgment for the payment of money or makes an order for
the payment of money in instalments, such judgment,
in case of
failure to pay such money forthwith, or such order in case of failure
to pay any instalment at the time and in the manner
ordered by the
court, shall be enforceable by execution against the movable property
and, if there is not found sufficient movable
property to satisfy the
judgment or order, or the court, on good cause shown, so orders, then
a court, after
consideration of all relevant circumstances, may order execution
against the immovable
property of the party against whom such judgment has been given or
such order has been made.’
6
(Emphasis added.)
Zondi
AJ
7
held that the declaration of invalidity of s 66(1)
(a)
by
the Constitutional Court applied retrospectively and that,
accordingly, a warrant of execution obtained, prior to
Jaftha
,
without judicial oversight and thus in violation of the law laid
down in that case – without the court making any order
limiting the retrospective effect of its declaration of invalidity
8
– was invalid. The learned acting judge held further that, in
the present case, it was clear that the warrant of execution
pursuant to which the property was sold in execution on 17 November
2003 had been issued by the clerk of the court without judicial
supervision and was therefore invalid.
The
court below went on to consider the effect of this finding on the
subsequent sale in execution. Section 70 of the Act provides
as
follows:
‘
70.
Sale in execution gives good title
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
court held that the provisions of s 70 do not apply to a situation,
such as in this case, where the sale in execution took place
pursuant to an invalid warrant of execution:
‘
To
apply the provisions of section 70 in these circumstances would
defeat the whole purpose of the Constitutional Court ruling in
the
Jaftha
case.’
Zondi
AJ held that, as the sale in execution was invalid, it could not
have served to pass any title to Menqa when the property
was
subsequently transferred to him. Relying on the judgment of McCall
AJ in
Joosub
v J I Case SA (Pty) Ltd (now known as Construction & Special
Equipment Co (Pty) Ltd) &
Others,
9
the learned acting judge concluded that Markom, as the owner of the
property, would be entitled to recover it by way of the
rei
vindicatio.
He
therefore confirmed the rule
nisi
granted on 10 February 2006 in its entirety, with costs. In view of
several of the grounds of appeal and of the arguments advanced
by
counsel before us, it is necessary to set out the relevant terms of
the rul
e
nisi
:
‘
1.
A rule
nisi
is hereby issued calling upon all interested parties to show cause
on 23 March 2006 why a final order should not be granted in
the
following terms:
1.1 Declaring
as null and void a sale in execution of a property known as erf
23584 Maitland, Cape Town, situated at 17 Camden Street,
Maitland,
Cape Town, allegedly held on 17 November 2003, together with all
subsequent sales of such property thereafter;
1.2
Interdicting and prohibiting the registration by the Fourth
Respondent [the Registrar of Deeds] of the pending transfer from
the
First to the Second Respondent of the property known as erf 23584
Maitland, Cape Town, situated at 17 Camden Street, Maitland,
Cape
Town;
1.3 Suspending
execution on a judgment obtained against the applicant in the
Magistrate’s Court for the District of Cape Town
under case
number 26081/1996 in terms of section 78 of Act 32 of 1944, pending
finalisation of an appeal against the judgment of
the learned
Magistrate Jaxa in the Magistrate’s Court for the District of
Cape Town of 18 August 2005 under case number A536/2004
in this
Honourable Court, or finalisation of other proceedings to set aside
such judgment instituted within one month of the final
order;
1.4 Directing
the Fourth Respondent to register the Applicant as owner of a
property known as erf 23584 Maitland, Cape Town, situated
at 17
Camden Street, Maitland, Cape Town;
alternatively
granting the Applicant leave to proceed to recover ownership of the
said property by way of a
restitutio
in integrum
or
otherwise and thereafter to register such ownership with the Fourth
Respondent; and
1.5 Ordering
the First to Fourth Respondent/s, jointly and severally as the case
may be, to pay the Applicant’s costs on the
scale as between
party and party to the extent that this application is or was
opposed by one or any of them.
2.
Sub-paragraphs 1.1, 1.2 and 1.3 above shall together operate as an
interim interdict pending the return day of the rule
nisi
.’
Lack of judicial supervision
The
first and second respondents assailed the judgment of the court a
quo on two bases: first, the applicant had failed in his papers
to
establish that the warrant of execution had indeed been issued
without the requisite judicial oversight; and second, on
the
basis that s 70 of the Act protects their title.
In
his founding affidavit, Markom stated explicitly that he was not
aware of the circumstances under which the warrant of execution
was
obtained. Thus, so the respondents’ argument went, it might
well be that the warrant of execution against the property
was
not
issued by the clerk of the court in circumstances
prohibited by the
Jaftha
judgment, but was in fact issued by
the court on good cause shown.
There
is no merit in this argument. In the answering affidavit deposed to
by Menqa, reliance is placed on ‘the re-issued warrant
in
respect of the immovable property containing the description of the
immovable property’ and a copy of this warrant is
attached to
the affidavit. It appears ex facie this copy that the warrant was
issued by the clerk of the court without any judicial
oversight. On
the respondents’ own version, therefore, the relevant warrant
was issued without any prior judicial intervention
and so in
contravention of the judgment in
Jaftha.
It follows that this
ground of attack on the judgment of the court below falls to be
rejected.
Section 70
of the
Magistrates’
Courts Act 32 of 1944
For
the purposes of s 70 of the Act,
10
there must be bad faith or notice of any defect at the time of the
purchase; a sale in execution is not liable to be impeached
where
the purchaser became aware of a defect only
after
the sale in
execution but before transfer into his or her name had been
effected.
11
Ordinarily,
therefore, an applicant wishing to impeach a sale must prove bad
faith or knowledge of the defect on the part of the
purchaser at the
time of purchase. In the present matter it is common cause that
Menqa has already taken transfer of the property
and intends to
further transfer it to Roux. There is no suggestion that Menqa was
in bad faith or aware of any defect at the time
of the sale in
execution.
As
indicated above, the court a quo held that s 70 can have no
application where the sale in execution was a nullity in that
it had
taken place in breach of the judgment debtor’s constitutional
rights. In coming to this conclusion, Zondi AJ relied
on the Cape
High Court judgment in
Schloss
12
which concerned the sale of immovable property in execution of a
default judgment obtained in March 2004. The sale in
Schloss
took place shortly before the Constitutional Court handed down its
judgment in
Jaftha
and the property was transferred to the
purchaser in execution and subsequently sold and transferred to Mr
Taramathi. There the
court found that there was no judicial
oversight of the issue of the warrant of execution; that the law as
set out in
Jaftha
operated retrospectively to the inception
of the Constitution; and that, accordingly, the sale in execution
took place pursuant
to an invalid warrant and was also void.
As
regards the question of the implications of these findings for a
bona fide
purchaser of property pursuant to such an invalid
sale in execution, the court in
Schloss
emphasised that any
exercise of public power has to be carried out in terms of a valid
rule of law. The court approved of the finding
of McCall AJ in
Joosub
13
to the effect that, where there was no sale in execution or where
the sale in execution which purported to have taken place was
a
nullity, then it could not have served to pass any title to the
property concerned to the purchaser or to any successor in title
into whose name the property was subsequently transferred: ‘the
plaintiff [the judgment debtor], as owner of the property,
would be
entitled to recover the [property] by way of a
rei vindicatio
.’
14
In
Joosub
the default judgment granted in the High Court and the
warrant of execution purportedly issued pursuant thereto reflected
different
judgment debtors and there was thus no valid judgment
against the person whose properties were sold in execution (the
plaintiff).
Counsel for Menqa and Roux sought to distinguish that
case inter alia on the basis that, in the present matter, there
was
a valid judgment against Markom and that the sale in execution
was therefore protected by
s 70
of the
Magistrates’ Courts Act
even
if the warrant of execution was null and void.
I
am not persuaded by counsel’s submissions in this regard.
Section 66(1)
(a)
of the
Magistrates’ Courts Act was
declared to be constitutionally invalid in the
Jaftha
case on
the ground that it unreasonably and unjustifiably limited judgment
debtors’ fundamental right of access to adequate
housing
entrenched in s 26(1) of the Constitution. The warrant of execution
in the present case was invalid as it was issued without
the
judicial oversight required by the Constitutional Court in
Jaftha
and the absence of this procedural safeguard imperilled Markom’s
constitutional rights under s 26(1). The sale in execution
to Menqa
was invalid for the same reason. I agree with the court a quo that,
if one were to hold that the provisions of s 70 of
the Act rendered
such a sale in execution unimpeachable, this would indeed ‘defeat
the whole purpose of the Constitutional
Court ruling in the
Jaftha
case.’
This
being so, it follows that the sale cannot in these circumstances be
‘saved’ by an application of
s 70
of the
Magistrates’
Courts Act
15
and
the court a quo was correct in confirming paras 1.1 and 1.2 of
the rule
nisi
.
16
I also have no problem with the confirmation of para 1.3 of the rule
– as Markom’s appeal against the dismissal of
his second
application for rescission of the default judgment obtained against
him by Tromp is pending in the Cape High Court,
it is logical that
execution of this judgment should be suspended pending finalisation
of that appeal.
Paragraph
1.4 of the rule
nisi
is
another matter altogether. Firstly, although this paragraph contains
two forms of relief in the alternative, it was confirmed
in its
entirety. This is clearly wrong. Markom’s counsel conceded
this, but contended that we should simply modify the order
of the
court below to read that ‘the rule
nisi
is
confirmed in its entirety with costs, including the first
alternative prayer in paragraph 2.4 of the notice of motion [para
1.4 of the rule]’. In my view, this would neither be
‘appropriate relief’ as required by s 38 of the
Constitution,
nor would it be a ‘just and equitable order’
in terms of s 172(1)
(b)
.
I say this for the following reasons.
The
sheriff derives his or her duty and authority to transfer ownership
pursuant to a sale in execution of immovable property from
rule
43(13) of the Magistrates’ Court Rules.
17
If the sale in execution is null and void because it violates the
principle of legality, as in the present case, then the sheriff
can
have no authority to transfer ownership of the property in question
to the purchaser who will thus not acquire ownership despite
registration of the property in his or her name.
It
follows that, in the present case, the registration of the property
in Menqa’s name did not make him owner of the property.
Theoretically, therefore, Markom is entitled to recover the property
in vindicatory proceedings. However, simply to direct the
Registrar
of Deeds to re-register the property in Markom’s name would
not, in my view, properly take into account the fact
that Menqa has
paid more than R140 000 in respect of the property
18
and that, by virtue of the extinction of Markom’s bond debt to
Nedbank (and, at least while the default judgment in Tromp’s
favour stands, by virtue of the partial payment of Markom’s
judgment debt to Tromp), Markom appears to have been unjustifiably
enriched at Menqa’s expense.
19
It will be much fairer to both parties if these claims are dealt
with, preferably simultaneously, in future proceedings which will
no
doubt be instituted in due course. Neither Markom nor Menqa requires
the leave of any court to institute such proceedings. For
these
reasons, the confirmation by the court a quo of paragraph 1.4 of the
rule
nisi
should
be set aside.
As
regards costs, Menqa and Roux have succeeded in this court to the
extent that an important part of the relief granted by the
court
below is to be set aside. On the other hand, they have failed in
their attack on the rest of the order made by the court
a quo. In
light hereof, I am of the view that it would be appropriate to make
no order as to the costs of appeal. The costs order
made by the
court below (appropriately amended to reflect the fact that only
Menqa and Roux opposed Markom’s application)
should stand, but
it should be noted that Markom was assisted in that court by
pro
bono
attorneys
and counsel.
Order
For
the reasons set out above, the appeal succeeds to the following
extent:
The
confirmation by the court below of paragraph 1.4 of the rule
nisi
issued on 10 February 2006 is set aside.
The
order made by the court below is altered to read:
‘
Paragraphs
1.1, 1.2 and 1.3 of the rule
nisi
are confirmed. The
first and second respondents are ordered to pay the applicant’s
costs jointly and severally, the one paying
the other to be
absolved.’
B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
SCOTT JA
JAFTA JA
KGOMO JA
CLOETE JA
I
have had the advantage of reading the judgment prepared by my
colleague Van Heerden and concur in the order made. The
ratio
20
of my colleague’s judgment on the principal issue in the
appeal may be summarised as follows: The warrant of execution in
the
present matter is invalid for the same reason as in the
Jaftha
21
matter; the sale in execution was accordingly void; and s 70 of the
Magistrates’ Courts Act 30 of 1944 (‘the Act’)
cannot be interpreted so as to negate the
Jaftha
decision. I
agree with this conclusion. But it is in my view desirable to
analyse the meaning of the section and provide a rational
basis for
its interpretation.
The
relevant facts and the principal issue on which the appeal turns can
be briefly stated. The immovable property in question was
owned by
Markom; it was occupied by him and his family as their home; it was
sold to Menqa at a sale in execution pursuant to a
valid judgment
granted against Markom by default in a magistrate’s court; and
it was registered in the name of Menqa, who
subsequently sold it to
Roux (in whose name it has not been registered). The warrant of
execution was issued by the clerk of the
court and therefore without
judicial supervision ─ a procedure held by the Constitutional
Court in
Jaftha
to be unconstitutional if the warrant of
execution would compromise the judgment debtor’s rights to
access to adequate housing
(in terms of s 26(1) of the
Constitution) and would therefore need to be justified (as
contemplated by s 36(1) of the Constitution).
The limited ambit of
the decision in
Jaftha
was emphasized by this court in
Standard Bank of South Africa Ltd v Saunderson
.
22
The order of the Constitutional Court requiring words to be read in
to s 66(1)(a) of the Act to cure the unconstitutionality
23
was not limited in terms of s 172(1)(d)(i) of the
Constitution.
24
The order accordingly has retrospective effect.
25
There is reason to believe
26
that Markom and his family’s s 26(1) rights of access to
adequate housing might have been compromised: Markom said in his
founding affidavit that if he and his family were to be evicted,
27
they would be left ‘effectively homeless’. Because the
warrant of execution was issued by the clerk of the court, Markom
had no opportunity to place his personal circumstances and those of
his family before a court. The consequences, for the reasons
which
follow, are that the warrant was invalid and the sale, a nullity.
28
The principal question on appeal is whether s 70 of the Act protects
Menqa, in circumstances where there is no suggestion that
he acted
in bad faith or had knowledge of the defect in the warrant.
I
shall repeat the wording of the section for convenience:
‘
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.’
Some
defect in the sale is contemplated, otherwise the section would
serve no purpose. On the other hand, the section should not
be
interpreted as meaning that any defect in the execution process
renders a sale unimpeachable unless the purchaser did not act
in
good faith or had notice of the defect ─ for then the judgment
debtor could be deprived of property without valid process
of law,
which would be unconstitutional for the reasons set out in para 47
below. The line is in my view to be drawn where the
defect results
in the ‘sale’ being a nullity. In such a case s 70 would
not find application. Put conversely, defects
not rendering a sale
void would not avail the judgment debtor and s 70 would protect the
purchaser, save in the two situations
it excludes. Such an
interpretation accords with the common law and it is a
well-established principle of statutory construction
29
that statute law does not alter law (including the common law) more
than is necessary;
30
and it is also in accordance with the dictates of s 39(2) of the
Constitution.
31
I shall begin with the common law.
The
most extensive treatment of the common law relating to sales in
execution can be found in Matthaeus II’s
De Auctionibus
.
32
The learned author, writing of the law in the mid-seventeenth
century in the Netherlands, deals in chapter 16 of book 1 of the
circumstances in which a sale in execution is void from the outset
or can be set aside by a court. Examples of a sale being void
from
the outset are where it was based on fraud;
33
where the court lacked jurisdiction;
34
where the sale did not take place at the prescribed place;
35
where what was decreed did not take place on the day advertised;
36
where there was a failure to comply with other formalities
37
(although a distinction was drawn
38
between formalities which preceded the sale, which had to be
complied with strictly, and formalities after the sale, for example,
inability to deliver the goods sold to the purchaser, which did
not); and
39
where the sale was not conducted as a sale in execution, or the
auction was not conducted by the proper official, or where the
debtor and other interested parties were not notified of the sale.
Matthaeus concludes his treatment of the topic by saying
40
that although all the requisite formalities must be strictly and
precisely complied with, the proceedings are not vitiated by
non-compliance with an insignificant formality which does not go to
the root of the matter. Examples given of the latter type of
formalities include where the official did not properly record a
description of movable goods attached or for how much each article
was sold, where the advertisements were put up on three and not four
market days and where the King’s standard was not displayed
at
the immovable property to be sold. In these and similar cases, says
Matthaeus, the sale remains for value because the authorities
do not
have regard to trivialities and it would be contrary to good faith
to split hairs over every small legal subtlety.
41
Matthaeus
goes on
42
to deal with the question when a sale, validly conducted, can be set
aside and points out that there are two methods of doing so:
appeal
and
restitutio in integrum
. According to the learned author,
43
regard being had to the practice current in his time, the appeal
procedure should be followed even where the sale is null and void.
Matthaeus then considers in what circumstances restitution can be
granted, despite a valid sale in execution, to a minor
44
and to a major,
45
and concludes that both are possible in certain circumstances.
In
a later chapter Matthaeus says
46
that the owner of the goods ranks above all other creditors when he
objects within the prescribed period and proves his ownership
─
in which case, says Matthaeus, he can even succeed in having the
sale completely set aside. In other cases, says Matthaeus,
47
the owner still ranks above the creditors even although he took no
steps to stop the attachment, if he can obtain restitution on
equitable grounds. Matthaeus then raises the question
48
whether in such cases the owner can claim his property or its value,
and answers that he has a choice. This, says Matthaeus, accords
not
only with what is written, but also with the current law because
even at common law, the effect of a sale in execution is not
so
highly regarded that an owner who was not negligent was precluded
from claiming his goods back.
49
The reason given by Matthaeus requires emphasis because of what is
said in para 41 below.
Other
Roman-Dutch authors are to the following effect. Groenewegen in
De
Legibus Abrogatis
50
commenting on the Code of Justinian 4.44.16 (which is irrelevant for
present purposes) says:
51
‘
1.
By inference from the present text many consider that public sales
in execution are rescinded for harm beyond half the fair price
. . .
2.
But, seeing that nowadays sales in execution are conducted with the
most exact formality, and the faith in state action ought
not
readily to be upset, therefore, the contrary rule applies in our
customs . . . And Neostadius,
Decisiones
supremi senatus
,
decis. 75, reports that it has been so decided in the Supreme Court
of Holland.
3.
But, if, indeed, property has been sold by order of court but not
with observance of all the formalities and arrangements of
sales in
execution, an opportunity to appeal is granted to a prejudiced
party, and we follow this rule.’
In
the decision of the Hooge Raad reported by Neostadius
52
and referred to by Groenewegen a farm was put up for sale in
execution. The lower court fixed the date for the auction at which
it was to be sold to the highest bidder and directed that
proclamations be made on two fixed days preceding the auction. On
the
day of the proclamation the voice of the cryer was not heard by
anyone because of the noise of a storm. The property was sold very
cheaply at the subsequent auction because few people attended. The
Hooge Raad refused to set the sale aside. What is important
for
present purposes, however, is that the report begins:
‘
Fundo
hastae subjecto, Hollandiae Curia Venditionis decretum, omni ordine
observato interposuit’
which
may be translated as:
‘
A
farm having been put up for sale in execution the [lower court]
issued the following order, every formality having been observed
. .
.’.
The
decision is authority only for the proposition that if there has
been compliance with the prescribed formalities, the fact that
the
result could have been better is irrelevant. The position would be
the same, I venture to suggest, were the execution creditor
to
publish the notice of sale of immovable property
53
in a newspaper circulating in the district where the property is
situated, and the newspaper had a very limited readership, with
the
result that fewer persons attended the auction that would have been
the case had a newspaper with a wider circulation been
chosen.
Peckius
in his
Verhandelinghe
54
is to the effect that observance of formalities was required for the
validity of sales in execution. The relevant passage is summarised
in the ‘Kort Inhoudt’ at the beginning of part 9 as
‘
Der
schuldenaerengoedt kan sonder behoorlijcke plechtinghe aen de
schulteyschers niet overgaen’,
ie
the goods of debtors do not pass to creditors without proper
formalities. The passage itself reads:
‘
Door
wie de besettinghe moet ghedaen werden, soude men moghen vraeghen.
Want te vergeefs versoect ghy, seydt Gordianus in
1.si
pacto quo poenam, 14 Cod. de pact
.
het goedt van uwen wederdinger sonder plechtelijcke manier van doen,
op uw overgedragen te werden.’
The
passage may be translated as follows:
‘
One
might ask by whom the attachment must be performed. Because you will
ask in vain, says Gordianus . . . that the goods of your
opponent be
transferred to you without the necessary formalities.’
Van
Leeuwen in his note to the second sentence of this passage says:
55
‘
Hoedanighe
solenniteyt in de materie van executie, ende verder manier van
procederen wert vereyscht, hanght teenemael aen de Statuyten
ende
Ordonnantien van de plaets daer het geschiedt, daer toe by ons
kunnen dienen de
Instructien
van den Hoghen ende Provincialen Rade, de executorien van de gemene
middelen, de Ordonnantie op’t stuck van de
Iustitie binnen de
Steden ende te platten Lande van Hollandt
,
nopende de praecijse onderhoudinghe ende naerkominghe van de welcke,
ende de solenniteyten daer inne begrepen, by ons mede een
algemeene
practijcque is, dat het versuym van de minste solenniteyt, een
executie, off een arrest (het welck soo veel de praecijse
onderhoudinge van solenniteyten ten daer toe vereyscht, daer
nefffens gereeckent werdt) geheel nul ende krachteloos maect,
endeden
aenlegger in de kosten condemneert’.
The
relevant part of the note may be translated as follows:
‘
Whatever
formalities in execution, and further procedure, are required depend
in each case on the Statutes and Ordinances of the
place where this
is done. With us the [applicable legislation] requires the strictest
observance and compliance with its provisions
and the formalities
therein contained. With us too the general practice is that failure
to comply with the smallest formality renders
the execution . . .
entirely null and void, and the applicant is ordered to pay costs.’
Innes
CJ, Wessels and Mason JJ referred to this part of Van Leeuwen’s
note in
Reinhardt v Ricker and David
56
but were not prepared to go ‘quite so far as that’.
Van
der Keessel deals in his
Praelectiones
with the question of
moveables
57
sold in execution:
‘
Daar
is verder ‘n belangrike vraag i.v.m. die
rei
vindicatio
van
roerende goed, nl. wat die regsposisie is indien ons saak uit
oorsaak van bruikleen of ‘n ander oorsaak, of selfs sonder
‘n
oorsaak maar uit hoofde van ‘n gebrek soos diefstal, aangetref
word onder die goed van iemand wie se goed ten behoewe
van sy
skuldeisers op bevel van die regter by openbare veiling verkoop is:
kan ons ook hierdie goed wat reeds verkoop is met
rei
vindicatio
terugvorder? Vir die
bevestigende standpunt spreek die argumente wat ons hierbo aangevoer
het.
58
Maar aan die ander
kant dra die gesag van ‘n openbare verkoop groot gewig, en dis
in die belang van iedereen dat dit nie omvergewerp
word nie.
Matthaeus self het egter (t.a.p.) na dit skyn ‘n juiste
beslissing in die saak gegee deur ‘n onderskeiding
toe te pas;
dit is dat indien die eienaar teen die verkoop kon geprotesteer het,
sy nalatigheid hom ten kwade moet kom. Maar indien
hy nie kon nie,
moet hy die
rei
vindicatio
hê,
wat egter ingestel moet word met terugbetaling van die koopsom aan
die koper, presies soos die skrywer by die volgende
paragraaf sal
aantoon i.v.m. diegene wie se goed te goeder trou op openbare markte
gekoop is, egter met die voorbehoud dat die
eienaar ‘n
verhaalsreg teen die skuldenaar sal hê vir die terugvordering
van die koopsom wat hy aan die koper moes
betaal.’
J.
Voet in his chapter on vindication says:
59
‘
Certainly
if moveable property has been sold without the knowledge of the
owner at public auction by judge’s order on the
petition of
creditors, it can hardly be that the customs of today would suffer
the vindication of property so sold. Not even immovables,
when sold
by judge’s order and legally delivered after the sale has been
prefaced by formal notices, can be vindicated if
the owner does not
promptly intervene and oppose. But since I shall have expressly to
deal elsewhere with such public sales and
the need for intervention,
I add no more at this point. Meantime let the author mentioned below
be consulted.’
The
author referred to is Matthaeus and the reference is to
De
Auctionibus
Book
1 Ch 11.
60
In commenting on this passage and the decision of De Villiers
CJ
in
Lange v Liesching
61
McCall AJ said in
Joosub v J I Case SA (Pty) Ltd (now known as
Construction & Special Equipment Co (Pty) Ltd)
:
62
‘
It
will be noted that the passage uses the words “sold by Judge’s
order” “after the sale has been prefaced
by formal
notices”. It is not authority for the proposition that where
immovable property has been sold without the valid
authority of a
Judge’s order or without formal notice having been given, the
property can nevertheless not be vindicated.
De Villiers CJ also
referred to
Matthaeus
1.11.33. The passage
referred to, to the effect that if the creditors of the heir sell
his goods the fideicommissaries are bound
to protest in order to
preserve their rights, presupposes that the fideicommissaries are,
or should be, aware of their rights,
and has no bearing on the
question as to whether a sale
sub
hasta
of
the heir’s goods may be valid, notwithstanding the
non-compliance with the required formalities. As I have already
indicated
above,
Matthaeus
deals expressly with
the effect of non-compliance with the required formalities in chap
16.’
In
his earlier chapter on grounds for restitution of majors, Voet
says:
63
‘
Nor
are majors less to be assisted by restitution when their properties
have been openly sold off as belonging to third parties
and have
under decree of a judge been knocked down and delivered to buyers
after the formalities of sale by auction, they themselves
being
ignorant by reasons of absence or other justifiable cause. This
applies to their absence both when they were cherishing a
domicile
in some other place, and when they were travelling abroad though
cherishing a domicile at the place of the auctioning.
It is true
that the power of the Treasury’s spear is not slight,
especially by the customs of the present day, and that confidence
in
it ought not readily to be destroyed. Still it is not going of
itself to weigh so heavily that therefore a true owner, who from
reasonable ignorance does not interfere at the selling off of his
own properties, and thus is put beyond blame, would remain stripped
of the ownership of his own properties which have been publicly
knocked down to another. It follows that here too we must for a
justifiable ground of ignorance certainly lay down of a major what
we have already more fully stated of a minor.’
64
I
wish to emphasise that although I have referred to the views of the
old authors not only in regard to invalid sales in execution,
but
also in regard to the position where restitution could be obtained
in certain cases on the grounds of fairness despite a valid
sale in
execution, it is only the former that are relevant for the purposes
of this appeal. The reason I have referred to the latter
will become
apparent from what is said in the next paragraph of this judgment in
regard to the status of sales in execution in
the Netherlands. The
question whether the Roman-Dutch law relating to restitution despite
a valid sale in execution has been received
in South Africa and what
the effect of s 70 would be if that were to be the case, are
questions which I expressly leave open.
In
view of the exposition of the law by the common law authors the
statement
by Van den Heever JA in
Messenger of the Magistrate’s
Court, Durban v Pillay
65
that the provisions of s 70
‘
are
in harmony with the dispositions of the Common Law which regarded
sales
sub hasta
66
as sacrosanct’
cannot
be supported. I am further respectfully constrained to disagree with
both propositions in the sentence which follows, namely:
‘
The
words [of the section] are wide enough to cover not only situations
such as that which arose in
Conradie
v Jones
,
1917 OPD
112
, where property not belonging to the judgment debtor was sold in
execution, but every claim that the sale be rescinded.’
Nor
with respect is the statement
67
‘
Where
the sale has been held and transfer has not yet been passed I can
see no reason why he should be content to recover from the
messenger
that elusive surrogate, damages, which in such circumstances it is
extremely difficult to prove and assess, rather than
with the
rescission of that which has been done unlawfully’
correct,
to the extent that it may suggest that a sale in execution can only
be impugned where transfer has not yet been passed.
I am, however,
in respectful agreement with the conclusion reached in that case,
namely, that where the advertisement for the sale
in execution was
insufficient and invalid because it did not contain a short
description of the property and its situation,
68
the judgment debtor was entitled to an order setting the sale aside.
It is important to note that as the property sold had not
yet been
transferred to the purchaser, s 70 could not find application
in any event and all of the dicta which I have quoted
were therefore
obiter
.
Van
den Heever JA dealt with s 70 again, three months after the
Pillay
case, in
Sookdeyi v Sahadeo
.
69
In that matter the immovable property sold in execution in a
magistrate’s court had been transferred to the purchaser and
from him, to the respondents. As pointed out by this court in
Modelay v Zeeman
70
the sole issue before the court in
Sookdeyi
was the incidence
of the burden of proof when a judgment debtor seeks to impugn a sale
in execution on the ground of the purchaser’s
bad faith or
knowledge of a defect at the time when he bought the property at the
sale in question. Much of what is contained in
the passage from the
judgment quoted below is accordingly obiter. Van den Heever JA in
the course of his judgment did not repeat
his previous statement in
the
Pillay
case that sales in execution were ‘sacrosanct’
at common law. Instead, the learned judge held:
71
‘
Our
successive Magistrates’ Courts Acts, 32 of 1917 and 32 of
1944, were enacted “to consolidate, and amend the law
relating
to magistrates’ courts”. Many of their provisions have
the characteristics of codification, declaring, unifying
and
amending the law in force before. Sec. 70 is such a provision.
It was a principle in the
Netherlands that a perfected sale in execution should after transfer
or delivery of the subject matter
not be lightly impugned
quoniam
fiscalis hastae fides facile convelli non debeat
.
(Groenewegen
de Legib
.
Abrogat
,
ad
C
. 4.44.16;
ad C
.
8.44 (
sibi
45)13;
Neostad
Decisiones
,
Decis. 75; Voet 6.1.13 and, dealing with execution
in
rem
, Bynkershoek
Observ
.
Tumult
. Cas 45;
Cf
Voet
42.1.31
verbis
:
Et quamvis nec arbiter
.
. .)
This reluctance to rescind
perfected sales
sub hasta
has
been received in our case-law (
Lange and
Others v Leisching and Others
,
1880 Foord
55
;
S.A. Association v van Staden
,
9 S.C. 95
at p. 98;
Conradie v Jones
,
1917 O.P.D. 112).
72
These authorities indicate that in
certain exceptional circumstances a sale in execution may
nevertheless be impugned. The rules
in regard to this qualified
inviolability of a sale in execution were in so far as magistrates’
courts are concerned, codified
in sec. 70. It has to be construed in
harmony rather than in conflict with the Common Law.
. . .
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. These words,
however, leave the purchaser open to
attack where the judgment
creditor [
sic
;
sc
“
debtor”] can show that his
acquisition was tainted with bad faith or with knowledge of any
defect, but they do not in terms
or by implication alter the normal
incidence of the
onus
of
proof.’
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
magistrate’s court can be impugned, after delivery of movables
or transfer of immovables, to the two cases mentioned
in that
section. There are three reasons for this. First, as the learned
judge pointed out, the section should be read so far as
possible as
being in accordance with the common law
73
but the learned judge apparently did not consider the views of
Matthaeus, Peckius or Van Leeuwen referred to above in ascertaining
what the common law was. Second, the interpretation given would
create an anomaly in that the consequences of void sales in
execution
in magistrates’ courts would differ fundamentally
from the consequences in high courts, where the common law applies;
and
no reason for such a difference suggests itself. And third, the
interpretation does not conform to the dictates of the Constitution
for the reasons given below.
74
For
the same reasons, the following dictum of Galgut J in
Gibson NO v
Iscor Housing Utility Co Ltd
75
is, with respect, wrong:
[Section 70] specifically states that a
sale perfected by delivery or registration, as the case may be,
cannot be impeached if the
purchaser purchased in good faith. These
words cannot refer to any minor irregularity or defect. Sec 70 was
inserted, in my view,
to cover the invalid or defective sale
perfected by delivery or registration, because a valid sale, or one
without defects, needs
no protection, whether or not delivery has
taken place.’
There
is no warrant for interpreting s 70 as protecting an ‘invalid’,
ie void, sale nor is any reason given why the
section ‘cannot’
refer to any minor irregularity or defect.
The
correct approach was followed, in the case of magistrates’
courts, in
Jones v Trust Bank of Africa Ltd
76
and in the case of high courts, in
Van der Walt v Kolektor (Edms)
Bpk
77
and the
Joosub
case.
78
Although I do not wish to be understood as agreeing with everything
that was said in the judgments in those three cases, I respectfully
agree with the conclusions set out in the next paragraph below.
In
Jones
79
Friedman JP reasoned that:
‘
[W]here
there is no judgment there cannot be a valid sale in execution and
consequently the protection afforded by s 70 to sales
in execution
cannot apply . . .’.
In
Van der Walt v Kolektor
De Villiers AJ concluded
80
that became a ‘sale’ in execution had not been conducted
by the deputy sheriff as required by Uniform Rule of Court
45(7),
but by his agent, a private firm of auctioneers, the principles set
out in the
Sookdeyi
81
and
Gibson
82
cases were not applicable. The decision accords entirely with what
Matthaeus says in 1.16.9, namely, that a ‘sale’
is void
from inception where the auction was not conducted by the proper
official. The criticism in
Van der Walt
by Davis J in
Standard Bank of SA Ltd v Prinsloo (Prinsloo intervening)
83
that ‘this judgment excessively reduces the protection
afforded by s 70’ is, with respect, for the three reasons set
out at the end of para 42 above, misplaced. In the
Joosub
case
84
McCall AJ held:
‘
If
. . . the sale which purported to have taken place was a nullity
then . . . it could not have served to pass any title to the
purchasers . . .’.
A
failure to attach the property sold ─ the position in the
present case, where the warrant of attachment was void ─
has
this effect.
85
I
therefore conclude that at common law, a sale in execution was void
for want of compliance with an essential formality, but that
non-compliance with non-essential formalities did not have this
result; and that s 70 should be interpreted as being to the same
effect, save that a sale in execution in a magistrate’s court
can be impugned even for want of non-essential formalities
where the
purchaser did not act in good faith or had notice of the
non-compliance. It is not necessary for the purposes of this
appeal
to consider what are ‘non-essential’ formalities.
86
Because of the modern legislation which deals with formalities
required for a valid sale in execution, resort to the old
authorities
would not necessarily be a safe guide. In each case
regard would have to be had in particular to the reason for the
formality,
the extent of the non-compliance and the prejudice or
potential prejudice caused to interested parties, especially the
judgment
debtor. But where, as here, the warrant of execution was
invalid, the sale must be regarded as void and accordingly s 70 does
not
protect Menqa.
I
reach the same conclusion by having regard to the Constitution,
s 39(2) of which provides:
‘
When
interpreting any legislation . . . every court . . . must promote
the spirit, purport and objects of the Bill of Rights.’
The
Constitutional Court held in
Investigating Directorate: SEO v
Hyundai Motor Distributors (Pty) Ltd: in re Hyundai Motor
Distributors (Pty) Ltd v Smit NO
87
that this section provides a guide to statutory interpretation under
the constitutional order. The court laid down the principle
that
where a legislative provision is reasonably capable of a meaning
that places it within constitutional bounds, it should be
given that
meaning. Following this approach, s 70 should be interpreted as not
protecting a ‘sale’ which is void for
to do so would put
it in conflict with the basic principle of legality (which requires
public power to be properly exercised in
terms of a valid law that
authorises it) and s 25(1) of the Constitution which provides that
‘no law may permit arbitrary
deprivation of property’.
Neither consequence could be justified in terms of s 36 of the
Constitution ─ sales in execution
were not sacrosanct at
common law and there is no reason why they should be in the modern
South Africa (save only in the two respects
mentioned in s 70).
It
is for these reasons that I support the conclusion of my colleague
Van Heerden and the court
a quo
that s 70 cannot be
interpreted as rendering a sale in execution unimpeachable because
this would defeat the whole purpose of the
Constitutional Court
ruling in the
Jaftha
case. In my judgment this is achieved by
not interpreting s 70 as applying to ‘sales’ in
execution that are void, whether
because of the decision in
Jaftha
or for any other reason. I accordingly agree with my colleague that
the court
a quo
was correct in confirming paras 1.1 and 1.2
of the rule
nisi
88
declaring the sale in execution of the property null and void and
interdicting the Registrar of Deeds from registering the property
into the name of Roux. The question then arises: What happens next?
Matthaeus
discusses the position where a debtor succeeds in having a sale in
execution set aside. He says
89
that if the debtor wishes to have the completed sale set aside for
want of compliance with formalities, fairness dictates that
he must
return to the purchaser the money the latter disbursed. This is the
situation, continues Matthaeus,
90
when the debtor sues the purchaser and demands the goods unlawfully
awarded to him; because if he sues the creditors, he is not
obliged
to pay the purchase price to them, but must pay the debt he owes
together with accrued interest ─ and in such a case
the
purchaser is required to obtain the money he paid, from the
creditors. It is not necessary to consider the position at common
law any further because to require Markom to pay Menqa the price
paid by the latter for the property, or to pay the execution
creditor the full debt owed together with accrued interest, as a
prerequisite to his being allowed to recover the property, might
altogether preclude him from obtaining the property and thereby
possibly affect his and his family’s constitutional right
to
access to adequate housing. That would be unconstitutional and
therefore impermissible.
91
Section
38 of the Constitution confers the power on a court to grant
‘appropriate relief’ to Markom if his constitutional
right to adequate housing was infringed. Section 172(1)(b) of the
Constitution empowers a court deciding a constitutional matter
to
‘make any order that is just and equitable’. The relief
sought in this court contained in the first part of paragraph
1.4 of
the rule
nisi
─ ‘directing the Registrar of Deeds
to register Markom as owner of the property’ ─ may at
first blush appear
to be just and equitable so far as Markom is
concerned; but his assertion that his and his family’s right
to access to adequate
housing will be infringed, has not yet been
tested, nor has Menqa been heard,
92
and the factors
93
relevant for a decision whether to allow execution to proceed
against Markom’s immovable property have neither been
considered
by the magistrate nor do they appear from the record.
Furthermore Menqa has paid over R140 000
94
in respect of the property and the order sought by Markom, which
does not take account of this fact, would not be just and equitable
so far as Menqa is concerned and therefore not appropriate either.
I
accordingly agree with my colleague that the claims of both Markom
and Menqa should be dealt with, preferably simultaneously,
in
subsequent proceedings. The order of the court below in relation to
paragraph 1.4
95
of the rule
nisi
must accordingly be set aside in its
entirety as the first part should not have been granted and the
alternative was not persisted
in on appeal.
I
agree with the conclusions reached by my colleague in regard to para
1.3 of the rule
nisi
and the reasons given for making no
order as to the costs of appeal.
______________
T D CLOETE
JUDGE OF APPEAL
CONCUR:
SCOTT
JA
1
In
his answering affidavit filed in the court below, Menqa denied
having any knowledge of the events preceding the sale in execution,
as set out in para 4 above.
2
2005
(2) SA 140 (CC).
3
As
amended by a ‘reading in’ of certain words by the
Constitutional Court: see para 9 below.
4
See
in this regard
Nedbank Ltd v Mortinson
[2005] ZAGPHC 85
;
2005 (6) SA 462
(W)
para 22;
Nedbank Ltd v Mashiya & Another
2006 (4) SA 422
(T) paras 10–11;
Standard Bank of South Africa Ltd v
Saunderson & Others
2006 (2) SA 264
(SCA) paras 15–17.
5
Jaftha
above para 52, and see also paras
39–44.
6
Paragraph
67.
7
Following
the judgment of Davis J in
Reshat Schloss v Gordon Taramathi &
Others
, Case No 2657/2005, unreported judgment of the Cape High
Court dated 10 October 2005.
8
In
terms of s 172(1)
(b)
(i)
of the Constitution, the provisions of which read as follows:
‘(1) When deciding a constitutional matter within its power, a
court –
. . .
may make an order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of
invalidity’.
See further in this regard
Ex
Parte Women’s Legal Centre: In re Moise v Greater Germiston
Transitional Local Council
2001 (4) SA
1288
(CC) paras 11–13.
9
1992
(2) SA 665
(N).
10
The
wording of which appears in para 11 above.
11
Modelay
v Zeeman & Others
1968 (2) SA 792
(D) at 795C–E, confirmed in
Modelay
v Zeeman & Others
1968 (4) SA 639
(A).
12
Above
n 7.
13
Above
n 9 at 674G.
14
Joosub
has been followed in the High Court context in a number of
cases:
see
Sowden v
Absa Bank Ltd & Others
1996 (3) SA
814
(W) at 821H–I;
Kaleni v
Transkei Development Corporation & Others
1997
(4) SA 789
(TkS) at 792D–H;
Rasi
v Madaza & Another
[2001] 1 All SA
498
(Tk) at 510g–j. See also
Van
der Walt v Kolektor (Edms) Bpk & Andere
1989
(4) SA 690
(T) at 696H–697D and the criticism of this case by
Davis J in
Standard Bank of South
Africa Ltd v Prinsloo & Another (Prinsloo & Another
Intervening)
2000 (3) SA 576
(C) at
586F–H.
15
The
grounds on which the warrant and the subsequent sale in execution
are invalid in the present case renders it unnecessary to
consider
the correctness of the analysis by Van den Heever JA, in two old
decisions of this court, of the Roman-Dutch authorities
concerning
the qualified inviolability (in our common law) of sales in
execution, and the relationship between the common law position
and
s 70
of the
Magistrates’ Courts Act: see
Messenger of the
Magistrate’s Court, Durban v Pillay
1952 (3) SA 678
(A) at
683F–684H and
Sookdeyi & Others v Sahadeo & Others
1952 (4) SA 568
(A) at 571G–572G. See also
Gibson NO v
Iscor Housing Utility Co Ltd & Others
1963 (3) SA 783
(T) at
786G–787A;
Van der Walt
above n 14 at 696B–F;
Joosub
above n 9, especially at 672C–F, 674G–677H
and 679D–681H;
Jones & others v Trust Bank of Afrika
Ltd & Others
1993 (4) SA 415
(C) at 419G–420D.
16
See
para 12 above.
17
Cf
Ivoral
Properties (Pty) Ltd v Sheriff, Cape Town & Others
2005
(6) SA 96
(C) para 66, where the Cape High Court pointed out that ‘a
Sheriff may not sell immovable property attached pursuant to a
duly
issued warrant of execution otherwise than by way of public auction
and his authority is created and circumscribed by the
provisions of
Uniform
Rule 46
. . . .’
The
learned judge
also
stated that the sheriff has ‘the duty to see that transfer is
passed’ and that the provisions of Uniform
Rule 46(13)
‘impose
an obligation on him to do everything necessary to pass transfer’.
See too
Mpakathi
v Kgotso Development CC & Others
[2006]
3 All SA 518
(SCA) paras 4, 5 and 13.
18
And
has also presumably been paying rates and taxes in respect of the
property since it was registered in his name in November 2005.
19
See
eg 9
Lawsa
2ed
(2005) para 209.
20
Contained
in paras 21 and 22.
21
Jaftha
v Schoeman
;
Van Rooyen v Stoltz
[2004] ZACC 25
;
2005 (2) SA 140
(CC).
22
2006
(2) SA 264
(SCA) paras 15 -18 and 21.
23
As
set out in para 9 of the judgment of my colleague Van Heerden.
24
The
relevant part of which is quoted in footnote 8 of the judgment of my
colleague Van Heerden.
25
Ferreira
v Levin NO
;
Vryenhoek v Powell NO
1996 (1) SA 984
(CC)
paras 25 to 30;
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC) p 834 n 200;
Ex Parte Women’s Legal Centre
: In re Moise v Greater Germiston Transitional Local Council
2001 (4) SA 1288
(CC) para 11. It was submitted on behalf of Menqa
that this would open the floodgates of litigation. But that is a
question to
be addressed by the Constitutional Court.
26
Contrast
Standard Bank of South Africa Ltd v Saunderson
, above n 22,
paras 20 and 21.
27
Section
23 of the Constitution elaborated on by the Legislature in the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998 becomes relevant in the event of eviction consequent
upon a sale in execution:
Ndlovu v Ngcobo
;
Bekker v Jika
2003 (1) SA 113
(SCA). That was not in issue in
Jaftha
and is
not in issue in this appeal.
28
The
Constitutional Court was not called upon in
Jaftha
to decide
the validity of a sale pursuant to an invalid warrant of execution
as the parties had consented to the setting aside
of the sale ─
see para 8 of the
Jaftha
judgment.
29
Steyn
Die Uitleg van Wette
pp 97-100 and cases quoted in footnote
25.
30
For
a discussion of the application of this principle after the advent
of the Constitution see Du Plessis, ‘
Statute Law and
Interpretation
’ LAWSA 1
st
reissue vol 25(1)
para 328.
31
Dealt
with in para 47 below.
32
De
Auctionibus Libri Duo
,
quorum prior Venditiones
,
posterior Locationes
,
quae sub hasta fiunt
,
exequatur:
adjecto passim voluntarium auctionum jure
. The work was
translated into Dutch in 1774. An incomplete copy of the translation
(up to 1.11) is to be found in the library of
this court, and a full
copy, in the library of the Pretoria High Court.
33
1.16.2
34
1.16.3.
35
1.16.4.
36
1.16.5.
37
1.16.7.
38
1.16.8.
39
1.16.9.
40
1.16.11.
41
Ibid.:
‘
His & similibus casibus non vitiates decretum : minima
enim praetor non curat non congruit bone fidei de apicibus juris
disputare
.’
42
1.16.20.
43
Ibid.
44
1.16.23ff.
45
1.16.31ff.
46
1.18.1.
47
1.18.2.
48
Loc
cit.
49
‘
Jure
enim communi non est tanta subhastationis auctoritas, ut dominus
cujus nulla negligentia argui potest, deneget vindicationem
.’
50
Tractatus
de Legibus Abrogatis et Inusitatis in Hollandia Vincinisque
Regionibus
.
51
Translation
by Beinart and Hewett vol 3 pp 209-210.
52
Decision
75 in
Utriusque, Hollandiae, Zelandiae, Frisiaeque, Curiae
Decisions
pp 229-230.
53
As
required by rule 43(c) of the magistrates’ courts rules.
54
Verhandelinghe
van Handt – Opleggen ende Besetten : Dat is, Arrest op Persoon
ende Goederen
; Part 19, pp 326-7.
55
Ibid.
56
1905
TS 179
at 188.
57
Praelectiones
Iuris Hodierni ad Hugonis Grotii Introductionem ad Iurisprudentiam
Hollandicam
, Th 183, translated by Van Warmelo et al, vol 2 p
45.
58
In
the original text there is a reference at this point to Matthaeus’
De Auctionibus
1.11.70, 71.
59
Commentarius
ad Pandectas
6.1.13, Gane’s translation vol 2 p 225.
60
Chapter
11 deals with opposition to sales in execution.
61
(1880)
Foord 55.
62
1992
(2) SA 665
(N) at 675F.
63
4.6.10,
Gane’s translation vol 1 p 723.
64
Voet
relies on, amongst others, Matthaeus’
De Auctionibus
1.16.31, 32 for this statement.
65
1952
(3) SA 678
(A) at 683G.
66
ie
in execution.
67
At
684A-B.
68
As
required by the then applicable rule in the magistrates’
courts quoted at 682A of the judgment; cf the present rules 43(6)(b)
and (c).
69
1952
(4) SA 568
(A).
70
1968
(4) SA 639
(A) at 643.
71
At
571G-572B and 572E-F.
72
The
three cases referred to are analysed and explained by McCall AJ in
Joosub
above, n 62 at 674I-676G.
73
See
n 29 above.
74
Para
47.
75
1963
(3) SA 783
(T) at 786C-D.
76
1993
(4) SA 415
(C).
77
1989
(4) SA 690
(T).
78
Above,
n 43.
79
At
421H.
80
At
695I-696H.
81
Above,
n 69.
82
Above,
n 75.
83
2000
(3) SA 576
(C) at 586G-H.
84
At
674G.
85
Joosub
above n 43 at 672G-673E;
Sowden v Absa Bank Ltd
1996 (3) SA
814
(W) at 821H-I;
Kaleni v Transkei Development Corporation
1997 (4) SA 789
(TkS) at 792D-H;
Rasi v Madaza
[2001] 1 All
SA 498
(Tk) at 510g-j.
86
Some
of the instances appearing in
Standard Bank v Prinsloo (Prinsloo
intervening)
above, n 83, at 585I-586D, may possibly fall into
this category, but I make no finding in this regard.
87
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 21 to 26.
88
Set
out in para 12 of the judgment of my colleague Van Heerden.
89
Op
cit 1.16.16.
90
1.16.17.
91
See
ss 39(2) and 172(1)(a) of the Constitution.
92
See
Standard Bank of SA Ltd v Saunderson
, above n 22, para 20 at
275E-F.
93
Some
of which are listed in para 60 of the
Jaftha
case, above, n
21.
94
Calculated
as set out in para 6 of the judgment of my colleague.
95
Quoted
in para 12 of my colleague’s judgment.