Drummond Farms (Pty) Ltd v Bekker

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 26 June 2008
• Docket Number: 2047/07
• Court: South Eastern Cape Local Division
• Hearing Date: 08 June 2008
• Citation: 2008 JDR 0775 (SE)

Jones J:

[1] The chief relief sought by the applicant is a declaration of nullity impeaching an attachment and sale in execution of immovable property following a judgment taken against the applicant by an execution creditor.

[2] The applicant was the registered owner of the immovable property, a farm in the Greenbushes area of Port Elizabeth. The farm had been mortgaged to the 3rd respondent (Nedbank). The applicant was in arrears with its repayments in terms of the bond. In due course Nedbank took judgment against it by default, and proceeded to execution. A sale in execution was arranged and held. That is the sale which is sought to be impeached. The 1st respondent was the purchaser.

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After the sale, the farm was registered in his name. He has resold to the 5th, 6th and 7th respondents but has not yet transferred the property to them.

[3] The 1st respondent relies upon the common law principles conferring protection from impeachment of a purchaser's title following a judicial sale even though there are irregularities in the execution process. The common law rule is not that a sale in execution is impervious to any impeachment. In the first place an absolute rule giving the purchaser protection would be offensive to constitutional values, and there are sound constitutional reasons why, in certain circumstances, the protection should not be allowed (Japhta v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC); Menqa v Markom [2007] SCA 172 (RSA) (not yet reported)) [1] . The parties accept that because the common law rule is not absolute, it passes constitutional muster. The rule is that where immovable property is sold in execution, the sale will not be impeached and the purchaser's title will not be impugned by reason merely of an irregularity in the execution process, but the position is different where the sale is rendered null and void, for example because of fraud or some other serious procedural or substantive causa which goes to the root of its validity (Menqa case supra; Japhta's case supra; Joosub v J I Case SA (Pty) Ltd now known as Construction and Special Equipment Co (Pty) Ltd 1992 (2) SA 665 (N); Van der Walt v Kolektor (Edms) BPK 1989 (4) SA 690 (T)). Although the Menqa decision supra was concerned with the statutory immunity given by section 70 of the Magistrates' Courts Act 32

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of 1944 [2] (which is sometimes, perhaps inaccurately, said to codify the common law), Cloete JA found it necessary to examine the common law principles at length. The old and modern common law authorities analysed in his judgment confirm that in Roman-Dutch law and modern South African law if a procedural defect in either the attachment or the sale is material, the 'sale' in execution is of no force and effect from the inception. In the event of the 'sale' being a nullity, the principle of protection from impeachment cannot be inapplicable because there is no sale, title does not change hands, and there is nothing to protect. The question, therefore, is always whether or not the defect results in the sale being a nullity from the outset. Cloete JA sums up the underlying principle at paragraph 46 of the Menqa case supra:

'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'.

[4] In this case the applicant relies on a formal defect in the attachment process. [3] Rule 46(1), (2) and (3) provide as follows:

(1)

A writ of execution against immovable property shall contain a full description of the nature and situation (including the address) of the immovable property to

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enable it to be traced and identified by the sheriff; and shall be accompanied by sufficient information to enable him to give effect to sub-rule (3) hereof.

(2)

An attachment shall be made by the sheriff of the district in which the property is situate or by the sheriff of the district in which the office of the registrar of deeds or other officer charged with the registration of such property is situate, upon a writ as near as may be in accordance with Form 20 of the First Schedule.

(3)

The mode of attachment of immovable property shall be by notice in writing by the sheriff served upon the owner thereof, and upon the registrar of deeds or other officer charged with the registration of such immovable property, and if the property is in the occupation of some person other than the owner, also upon such occupier. Any such notice as aforesaid shall be served by means of a registered letter, duly prepaid and posted addressed to the person intended to be served.

The execution creditor (Nedbank) caused a valid writ of execution to be issued by the registrar. This brought the provisions of sub-rules (2) and (3) into play, which impose certain duties on the sheriff. It is common cause that in performing his duties the sheriff did not serve the notice of attachment on the judgment debtor, the applicant, by registered post as required by sub-rule (3). Instead, the sheriff affixed a copy of the writ of execution and the notice of attachment to the main gate of the immovable property in question, portion 42 of the farm Kuyga No 8, Greenbushes, Port Elizabeth, and issued a return of service in terms of rule 4 to that effect. The return also stated that the premises were locked and that no responsible person could be found at the address upon whom documents could be served. There is no dispute (a) that the applicant chose this address as its domicilium citandi et executandi in the mortgage bond which was the initial cause of action...