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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 15476/2023P
In the matter between:
NGQONDI AVUYA ZINATHI MFOLOZI APPLICANT
and
FARM HOME OWNERS ASSOCIATION FIRST RESPONDENT
YUSUF MOOSA SECOND RESPONDENT
THE REGISTRAR OF DEEDS, PIETERMARITZBURG THIRD RESPONDENT
RAY NKONYENI MUNICIPALITY FOURTH RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises the following order is made:
1. The applicant’s application to set aside the sale of the immovable property
situated at ERF 1[...] Shelly Beach is dismissed.
2. The applica nt’s a pplication succeeds to the extent that the first and third
respondents are interdicted from transferring the immovable property located
at ERF 1[...] Shelly Beach to the second respondent for a duration of three
months. This will allow the applicant to follow the correct procedure
concerning the order declaring the property executable by the Port Shepstone
Magistrates’ Court.
3. There is no order regarding costs.
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___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mathenjwa J
Background
[1] This is an application by Ngqondi Mflozi (the applicant) requesting the court to
set aside the sale agreement between the Farm Owners Association (the first
respondent) and Yusuf Moosa (the second respondent) concerning the plot located
at ERF 1[...], Shelly Beach (the immovable property), as well as to prohibit the first
and third respondents from transferring the property to the second respondent. The
applicant own ed the property situated within the Farm Owners Association, Farm
Estate in Shelly Beach. The second respondent owns another property in the same
Association and is a neighbour of the applicant.
[2] On 20 October 2022, an attorney representing the first respondent sent a
letter to the applicant demanding payment of outstanding ar rear levies owed by her
to the first respondent, totalling R13 914.93. The applicant communicated to the
attorney that she had lost her job and was unable to pay these levies while actively
seeking new employment. Following this communication, the first respondent initiated
legal proceedings at the Port Shepstone Magistrates’ Court, serving summons at the
applicant’s chosen domicillium citandi et executandi address. The applicant did not
respond to the summons, resulting in a default judgment being awarded against her
and in favour of the first respondent. Subsequently, a writ of execution was issued by
the Court for seizing movable assets. After receiving a nulla bona return from the
sheriff indicating no movable assets were available for attachment, the first
respondent obtained an order from the Court declaring the immovable property
executable .
[3] On 9 July 2024, the applicant emailed the attorney representing the first
respondent to propose a settlement for outstanding levy arrears, suggesting a
respondent to propose a settlement for outstanding levy arrears, suggesting a
monthly payment of R5 000. The applicant indicated that she had secured new
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employment and was able to maintain this monthly payment. However, the first
respondent's attorneys rejected her proposal. Subsequently, on 17 October 2024, the
applicant learned that her immovable property had been sold to the second
respondent when she called him to enquire about his interest in purchasing it.
Previously, the second respondent had approached her with an offer to buy the
property, which she had declined at that time. The second respondent informed the
applicant that the property was sold to him in execution for R352 000 and stated that
as the purchaser, he was responsible for additional ar rear rates amounting to R26
339.18 and arrear levies totalling R151 868.28.
Parties’ contentions
[4] The applicant asserts that on 26 August 2024, she made a payment of R10
000 towards settling the arrears and proposed a monthly instalment of R5 000 for this
purpose; however, this offer was refused by the first respondent's attorney. On 22
October 2024, the applicant contacted her attorney regarding the sale of the
immovable property; upon enquiry with the first respondent ’s attorneys, she was
informed that the property had been sold for R352 000 to the second respondent.
The applicant argues that she did not receive any notification for sale of the property
and claims that the magistrate failed to correctly apply legal procedures when issuing
an order declaring her property executable.
[5] The second respondent raised preliminary objections and argued that the
order being sought is improper because while it seeks to prevent transfer of
ownership of the property to him, the applicant has not joined the sheriff who is
authorised to execute such a transfer in these proceedings. Furthermore, the second
respondent pointed out that no application for rescission of the default judgment has
been filed in the Magistrates’ Court nor has there been an appeal against the said
judgment. The second respondent maintains h e is a bona fide purchaser of the
judgment. The second respondent maintains h e is a bona fide purchaser of the
immovable property and contends that there is no evidence presented by the
applicant to demonstrate any mala fides on his part.
[6] The applicant acknowledges that she has neither rescinded nor appealed the
judgment issued by the magistrate, yet asserts that this court has the authority to
utilise its inherent jurisdiction to grant her the requested relief. After the conclusion of
arguments from both parties, the court reserved its judgment.
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[7] This case presents unique circumstances as the applicant ’s immovable
property, valued at R3 80 000, was declared executable by a district court to settle a
debt of R13 914.93. Additionally, it was noted that there was no record of an
application for declaring this property executable in the court file. Consequently, th is
court requested the legal representatives of both parties to provide further written
submissions addressing whether an application for declaring the immovable property
executable had been made in the Magistrates’ Court and if such an application had
been served on the applicant. Should there have been an application presented and
considered by the Court, the parties were requested to provide a copy of such
application. Moreover, based on the applicant ’s claim regarding rule 56A which was
proposed by the Magistrates’ Commission in 2017 having been promulgated,
submissions were sought concerning its implications.
[8] Counsel for the first and second respondents responded to the court ’s inquiry,
clarifying that rule 56A was merely a proposal from the Magistrates ’ Courts
Committee and had not received approval; therefore, it does not constitute law. They
argued that the Constitutional Court judgment of Jaftha v Schoeman and Others; Van
Rooyen v Stoltz and Others 1 is not material to this matter since it pertains to the
execution of residential immovable property governed by rule 43A of the Magistrates’
Court Rules, while non -residential immovable property execution falls under rule 43.
The first respondent indicated that an application seeking to declare immovable
property executable in the Magistrates’ Court was included with their answering
affidavit marked “I”.
[9] The applicant ’s legal representative responded to my inquiry, indicating that
there was no request or application made in the Magistrates’ Court to declare the
immovable property executable, and the applicant was never served with such an
immovable property executable, and the applicant was never served with such an
application. The applicant argued that the sale of her property, valued at R380 000,
to recover a debt of R13 914.93, particularly when the first respondent’s attorneys
were already receiving payments from the applicant regarding this debt was unlawful.
[10] I appreciate all parties for their responses to my inquiry. I agree with the
1 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140
(CC).
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respondents that the proposal by the Magistrate s’ Commission to introduce a new
rule 56A was not approved and consequently not promulgated. Thus, the applicant’s
assertion that rule 56A was adopted and currently governs the execution of
immovable property lacks merit. Instead, on 22 December 2017, rules 43 and 43A
were amended to govern such executions in the Magistrates’ Courts. Additionally, I
agree with the respondents ’ counsel that rule 43 2 pertains to non -residential
immovable property execution while rule 43A3 addresses the execution of residential
immovable property. However, I disagree with respondents ’ counsel regarding non-
applicability of judicial oversight in the execution of non -residential immovable
properties; judicial oversight remains applicable in cases involving these properties.
[11] Execution against immovable property in situations where a judgment debtor
has failed to comply with a monetary judgment is governed by s 66(1) (a) of the
Magistrates’ Courts Act 32 of 1944 which states:
‘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 against the immovable property of the party against
whom such judgment has been given or such order has been made.’
2 Rule 43(1) of the Magistrates’ Court Rules provide:
‘(1)(a) Subject to the provisions of rule 43A, no warrant of execution against the immovable property
of any judgment debtor shall be issued unless-
(i) a return has been made of any process issued against the movable property of the
(i) a return has been made of any process issued against the movable property of the
judgment debtor from which it appears that the said person has insufficient movable property
to satisfy the warrant; or
(ii) such immovable property has been declared to be specially executable by the court..
(b) A warrant of execution against immovable property shall contain-
(i) a full description of the nature, magisterial district and physical address of the immovable
property to enable it to be traced and identified by the sheriff; and
(ii) sufficient information to enable the sheriff to give effect to subrule (3) hereof, including the
title deed number, the erf number or sectional title unit number and exclusive use area to
enable the Registrar of Deeds to identify the immovable property and record the attachment
as an interdict against the immovable property.’
3 Rule 43A provides:
‘(1) This rule applies whenever an execution creditor seeks to execute against the residential
immovable property of a judgment debtor.
(2)(a) A court considering an application under this rule must-
(i) establish whether the immovable property which the execution creditor intends to execute
against is the primary residence of the judgment debtor; and
(ii) consider alternative means by the judgment debtor of satisfying the judgment debt, other
than execution against the judgment debtor's primary residence.’
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[12] It is evident from the stipulations of s 66(1) that the Magistrates’ Court can only
declare immovable property executable upon demonstrating good cause. The court
would have to evaluate an application to render the property executable, leading to a
determination that good cause has been shown for such a declaration. While the first
respondent argued that this application was submitted to the Magistrates ’ Court, it
appears that such application is not contained in the court records. Although counsel
for the first respondent claimed that the application was documented within pages 92
to 97 of the indexed materials, these pages actually contain the answering affidavit of
the second respondent rather than any related documents. Moreover, item 36 in the
applicant’s index lists her heads of argument, with no item 37 present in these
indexed documents.
[13] In paragraph 33 of its answering affidavit, the first respondent mentioned a
copy of both the application to declare the immovable property executable and a
sheriff’s return of service as annexures “I” and “J”. However, these annexures do not
appear in the index; instead, annexure “F” pertains to a request for default judgment,
annexure “G” relates to a warrant for execution against property, and annexure “H”
addresses warrants of execution against immovable property found on page 91 of
the indexed papers. Consequently, it cannot be said that there is a substantial basis
for asserting that an application to declare the immovable property executable was
made in the Magistrates’ Court and attached to its records. The respondents have
failed to provide or attach a copy of this application nor have they supplied evidence
demonstrating service of this application upon the applicant, despite my request for
such documentation.
[14] This brings me to the points in limine concerning the applicant ’s failure to
either rescind or appeal the Magistrates’ Court judgment. It is pertinent to note that
either rescind or appeal the Magistrates’ Court judgment. It is pertinent to note that
following the sheriff ’s nulla bona return regarding the execution warrant issued for
movable property, it became evident that the judgment debtor lacked sufficient
movable assets to satisfy the warrant. This situation encompasses two separate
processes: first, a monetary judgment is rendered against the judgment debtor ;
second, following the sheriff’s nulla bona return regarding the execution of movables
the creditor approaches the court for an order declaring immovable property
executable. In this case, the applicant does not contest the monetary judgment
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requiring her to pay levies owed to the first respondent. Instead, her grievance
pertains to the order that d eclared her immovable property as executable . The
monetary judgment mandating payment of debt and the order permitting execution of
immovable property are indeed distinct matters. Consequently, the preliminary points
concerning the applicant’s failure to either rescind or appeal the judgment must fail,
as she does not challenge that particular judgment.
[15] As for the third preliminary issue regarding the non -joinder of the sheriff, it
should be noted that the Registrar of Deeds, who oversees the registering and
transfer of the immovable property to the second respondent, was cited and served
with the application. Although it is typically within the sheriff ’s purview to facilitate
such transfers, it is important to clarify that the magistrate ’s order declaring
immovable property executable attached as annexure “AM12” does not empower the
sheriff to attend to the transfer of the immovable property to the second respondent.
In this instance there is no explicit mention of the s heriff's duties concerning
immovable property in the court order. In my view the non -joinder of the sheriff is not
fatal to the applicant’s case since both the first respondent and the Registrar of
Deeds were cited in this proceedings.
[16] Concerning the argument made by the second respondent’s counsel that the
Magistrates’ Court possesses jurisdiction to declare immovable property executable
regardless of its monetary value, counsel failed to provide any supporting authorities
to substantiate this position. In my opinion, without a mutual agreement between the
parties involved and considering that the jurisdiction of the Magistrates’ Court is
governed by statutory regulations, it will exceed the powers of the magistrate to
declare an immovable property executable if its value significantly exceeds its own
monetary jurisdiction.
monetary jurisdiction.
[17] The current case illustrates significant challenges in delivering justice in this
court, stemming from what seems to be a blatant disregard for justice in the
Magistrates’ Court. Firstly, one must consider whether a court exercising judicial
authority would have considered an immovable property valued at R380 000
executable for settling an original debt of R13 914.93 when the applicant had
proposed to pay off this debt in monthly instalments of R5 000. This question should
be addressed by the court considering the application for declaring the immovable
8
property executable based on presented facts. However, due to the absence of a
record accompanying that application, I refrain from commenting on this matter.
[18] Secondly, there remains uncertainty regarding whether the district court had
jurisdiction to declare an immovable property executable when its value far exceeds
its monetary limits. Without access to the reason by the magistrate who declared the
immovable property executable I cannot determine what factors may have influenced
that court’s decision to exercise such jurisdiction. Lastly, it is evident that there was
no formal application before the Magistrates’ Court and that judicial oversight was not
exercised when declaring the immovable property executable.
[19] The other challenge pertains to how this case came before this court. Rule 51
of the Magistrates’ Court s Rules governs appeals from the magistrates’ court to the
high court. According to this procedure, the appellant would have needed to request
that the magistrate provide written reasons to the Clerk of the Port Shepstone
Magistrates’ Court concerning the order declaring the immovable property
executable; which reasons would then become part of the official record. It is required
that this documentation outlines both the facts established by the magistrate and
his/her reasoning for issuing the order. Following this, the appellant would file an
appeal with this Division of the high court against the magistrate ’s order, specifying
both legal and factual grounds for the appeal.
[20] In relation to the applicant ’s decision not to appeal the magistrate’s order but
instead seek relief from this court, counsel for the applicant argued that it is
imperative for this court to exercise its inherent jurisdiction and grant relief in favour
of the applicant, despite non-compliance with procedural rules when approaching this
court. I find difficulty in accepting that argument. First ly, inherent jurisdiction refers to
court. I find difficulty in accepting that argument. First ly, inherent jurisdiction refers to
the authority of the high court to adjudicate any matter presented before it unless
restricted by statute or rule or if exclusive jurisdiction is assigned to another tribunal. 4
The inherent power of the high court encompasses not only ensuring effectiveness in
its orders or regulating its own procedures but also administering justice where no
specific law directly addresses a particular scenario. 5 In this instance, there is no
absence of a legal framework regarding appeals from a magistrates’ court to a high
4 M v M [2017] ZAGPJHC 279 para 13.
5 Ex Parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) at 585H.
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court. Secondly, it is not advisable for this court to adjudicate on substantive issues
without having considered insights from the magistrate who initially dealt with this
case.
[21] To provide the requested relief, the magistrate would have needed the chance
to present his/her rationale, allowing th is court to thereby assess the merits of the
proceedings from the magistrates’ court. Additionally, this court is unable to suspend
the execution warrant since it has already been executed and the immovable
property has been sold to the second respondent. The court cannot issue a final
interdict preventing the transfer of property to the second respondent while an order
exists declaring that property executable; though there is no record of the application
to declare the immovable property executable in the Magistrates’ Court. Even if the
applicant were to appeal the order declaring her property executable, this court would
have to rely on the record of the Magistrates’ Court to determine the appeal.
[22] The record clearly indicates that the applicant is a n indigent debtor, as it was
undisputed that she fell behind on her monthly payments following her job loss. Since
there appears to be irregularities in the Magistrates’ Court process, a critical issue is
whether, as custodians of justice, this court should overlook these noticeable
irregularities that led to the loss of the applicant ’s immovable property, an action that
could effectively hinder her access to judicial recourse. The magistrate who issued
the declaration order is in the best position to clarify these issues, more particularly
whether there was an application considered in open court for declaration of the
immovable property executable. In my view, a fair outcome that balances justice
would involve granting an interim interdict against transferring ownership of the
property for three months. This timeframe would allow the applicant to determine her
property for three months. This timeframe would allow the applicant to determine her
next steps in seeking redress at the Magistrates’ Court and any option available to
her in bringing this matter to this court.
[23] Regarding costs, considering the glaring irregularities in the Magistrates’ Court
combined with the failure on part of the applicant to follow proper procedures when
bringing this matter before this court, each party should bear its own costs.
Order
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[24] In the premises, the following order is made:
1. The applicant’s application to set aside the sale of the immovable property
situated at ERF 1[...] Shelly Beach is dismissed.
2. The applicant’s application succeeds to the extent that the first and third
respondents are interdicted from transferring the immovable property
located at ERF 1[...] Shelly Beach to the second respondent for a duration
of three months. This will allow the applicant to follow the correct
procedure concerning the order declaring the property executable by the
Port Shepstone Magistrates’ Court.
3. There is no order regarding costs.
_________________
MATHENJWA J
Appearances
Applicant’s counsel: Mr T Kadungure
Instructed by: Balfour Myesi Attorneys
Mthatha
First respondent’s counsel: Mr M Sewpal
Instructed by: Sharlene Govender and Associates
Port Shepstone
Second respondent’s counsel: Mr M G Chetty
Instructed by: Deshan Naidoo Attorneys
Port Shepstone
Date of hearing: 12 February 2026
Date of judgment: 15 April 2026