Menqa and Another v Markom and Others

• Jurisdiction: South Africa
• Citation: 2008 (2) SA 120 (SCA)

Menqa and Another v Markom and Others
2008 (2) SA 120 (SCA)

2008 (2) SA p120

Citation	2008 (2) SA 120 (SCA)
Case No	604/06
Court	Supreme Court of Appeal
Judge	Scott JA, Cloete JA, Van Heerden JA, Jafta JA and Kgomo AJA
Heard	November 5, 2007
Judgment	November 30, 2007
Counsel	FSG Sievers for the appellants; MA Greig (with DJ Cooke) for the first respondent

Flynote : Sleutelwoorde E

Execution — Sale in execution — Of immovable property — Sale in execution F invalid — Warrant of execution issued without requisite judicial oversight — Absence of judicial oversight imperilling party's s 26(1) constitutional rights — Warrant obtained prior to Constitutional Court decision declaring s 66(1) of Magistrates' Courts Act 32 of 1944 unconstitutional — Sale invalid as CC decision applying retrospectively — Sale not saved by applying s 70 of Magistrates' Courts Act 32 of 1944. G

Execution — Sale in execution — Of immovable property — Sale in execution invalid — If invalid for violation of principle of legality, sheriff having no authority to transfer ownership to purchaser — Purchaser not acquiring ownership despite registration of property in their name.

Execution — Sale in execution — Of immovable property — Sale in execution invalid — Directing Registrar of Deeds to re-register property in owner's name not appropriate remedy as failing H to take into account what purchaser paid for property and possible unjust enrichment.

Headnote : Kopnota

The first respondent's immovable residential property had been sold in execution to the first appellant (who subsequently sold it to the second appellant) pursuant to a default judgment against the first respondent. The warrant of execution pursuant to which the sale had I taken place had been issued by the clerk of the magistrates' court without judicial supervision. However, this warrant had been obtained prior to the case of Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78), in which the Constitutional Court had declared s 66(1)(a) of the Magistrates' Courts Act 32 of 1944 unconstitutional and ordering its J

2008 (2) SA p121

amendment. The first appellant had not acted in bad faith or had A knowledge of the defect in the warrant. The court a quo held that this sale and all subsequent sales were nonetheless null and void since the first respondent's constitutional right to access to adequate housing might be compromised and Jaftha (supra) applied retrospectively. The court a quo directed the Registrar of Deeds to reregister the first respondent as owner of the property. B

Held, that sales in execution of immovable property (and subsequent sales) were invalid if the warrant of execution pursuant to which the sales had taken place had been issued by the clerk of the magistrates' court without judicial supervision, and the absence of this procedural safeguard imperilled a party's s 26(1) constitutional rights, even if they occurred prior to the Jaftha case (supra), and could not be saved by an application of s 70 of the C Magistrates' Courts Act. (Paragraphs [21] - [22] at 128H - 129D.)

Held, further, that, if a sale in execution was null and void because it violated the principle of legality, the sheriff had no authority to transfer ownership to the purchaser, who would therefore not acquire ownership despite registration of the property in his or her name. On the facts the first respondent was theoretically D entitled to recover the property in vindicatory proceedings. (Paragraphs [24] - [25] at 129G - 130D.)

Held, further, on the facts, that directing the Registrar of Deeds to reregister the property in the first respondent's name would not take into account what the first appellant had paid for the property and the first respondent's possible unjust enrichment. (Paragraph [25] at 130E.) The decision of Zondi AJ in the Cape E Provincial Division confirmed in part and reversed in part.

In a concurring judgment Cloete JA found 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. His view was that s 70 of the Magistrates' Courts Act should be interpreted as being to the same effect as the common law, F except that a sale in execution in a magistrates' court could 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. Further, s 70 should not be interpreted as protecting a sale which is void, as this conflicts with the basic principle of legality and s 25 of the Constitution. (Paragraphs [46] and [47] at 141D - E and 142B - D.) G

Cases Considered

Annotations

Reported cases

Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC): referred to H

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): referred to

Gibson NO v Iscor Housing Utility Co Ltd and Others 1963 (3) SA 783 (T): referred to I

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079): referred to

Ivoral Properties (Pty) Ltd v Sheriff, Cape Town, and Others 2005 (6) SA 96 (C) ([2005] 3 All SA 178): referred to J

2008 (2) SA p122

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78): A applied

Jones and Others v Trust Bank of Africa Ltd and Others 1993 (4) SA 415 (C): referred to

Joosub v JI Case SA (Pty) Ltd (now known as Construction & Special Equipment Co (Pty) Ltd) and Others 1992 (2) SA 665 (N): referred to

Kaleni v Transkei Development Corporation and Others 1997 (4) SA 789 (Tk): referred to B

Lange v Liesching (1880) Foord 55: referred to

Messenger of the Magistrate's Court, Durban v Pillay 1952 (3) SA 678 (A): referred to

Modelay v Zeeman and Others 1968 (2) SA 792 (D): dictum at 795C - E applied C

Modelay v Zeeman and Others 1968 (4) SA 639 (A): applied

Mpakathi v Kghotso Development CC and Others 2005 (3) SA 343 (SCA) ([2006] 3 All SA 518): referred to

Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) ([2002] 4 All SA 384): referred to D

Nedbank Ltd v Mashiya and Another 2006 (4) SA 422 (T): referred to

Nedbank Ltd v Mortinson 2005 (6) SA 462 (W) ([2006] 2 All SA 506: referred to

Rasi v Madaza and Another [2001] 1 All SA 498 (Tk): referred to

Reinhardt v Ricker and David 1905 TS 179: referred to

Sookdeyi and Others v Sahadeo and Others 1952 (4) SA 568 (A): referred to

Sowden v Absa Bank Ltd and Others 1996 (3) SA 814 (W): referred to E

Standard Bank of South Africa Ltd v Prinsloo and Another (Prinsloo and Another Intervening) 2000 (3) SA 576 (C) ([2000] 1 All SA 145): referred to

Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA) ([2006] 2 All SA 382): referred to

Van der Walt v Kolektor (Edms) Bpk en Andere 1989 (4) SA 690 (T): referred to. F

Unreported cases

Markom v Menqa (CPD case No 1195/06 29 August 2006; Zondi AJ): confirmed in part and reversed in part

Reshat Schloss v Gordon Taramathi and Others (CPD case No 2657/2005; Davis J; 10 October 2005): G referred to.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, ss 25, 26(1): see Juta's Statutes of South Africa 2006/7 vol 5 at 1-24, 1-25

The Magistrates' Courts Act 32 of 1944, ss 66(1)(a) and 70: see Juta's Statutes of South H Africa 2006/7 vol 1 at 1-38 and 1-40.

Case Information

Appeal from a decision in the Cape Provincial Division (Zondi AJ). The facts appear from the judgment of Van Heerden JA (with whom Scott JA, Jafta JA and Kgomo JA concurred). Cloete JA wrote a separate concurring judgment in which Scott JA concurred. I

FSG Sievers for the appellants.

MA Greig (with DJ Cooke) for the first respondent.

Cur adv vult.

Postea (November 30). J

2008 (2) SA p123

Judgment

Van Heerden JA:

Introduction A

[1] 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 B 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 C parties either by their names or by their respective designations in the court below.

[2] 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 D 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 E judgment being granted by the magistrates' 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...