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WARRANTS: WHEN TO EXECUTE?


The matter of Absa Bank Ltd v Snyman (22/2014) [2015] ZASCA 67, was an Appeal brought by Absa wherein, Absa sought to appeal a portion of a Judgment and Order of the Western Cape Division of the High Court (“court a quo”), which pertained to the validity of the execution sale, as well as the setting aside of the eviction order.

The facts of the matter are as follows:

  • Snyman was the owner of certain immovable property and caused a bond to be registered over the property in favour of Absa. When Snyman fell into arrears with his bond installments, Absa issued summons against him out of the Robertson Magistrate's Court for an amount of R89 690.46, together with interest and costs, as well as for an order declaring the property executable. Despite personal service of the summons on Snyman and his wife, they entered no appearance to defend. In consequence, default judgment in accordance with the terms sought in the summons was granted on 18 December 2007. On the same day, a warrant of execution was issued against the property.

  • For some reason not revealed in the papers, the warrant remained dormant until it was issued by the clerk of the Robertson Magistrate's Court on 18 December 2010. (Absa disputed this date and as appears below, this issue was of no consequence).

  • The reissued warrant of execution was served on Snyman personally on 1 February 2011. As with the summons, this again elicited no response from him. As a result, the property was sold in execution. At the auction sale, which was attended by Snyman, the property was purchased by Mr E J van Tonder for R95 000. On 15 December 2011 Van Tonder gave notice to Snyman to vacate the property. When he failed to do so, Van Tonder brought an application for his eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The application was set down for 9 February 2012. On that day Snyman, for the first time, opposed the relief sought. At that stage he was represented by an attorney from the Legal Aid Board. But when the matter was eventually heard on 16 February 2012, his attorney had in the meantime withdrawn. The presiding Magistrate took the view that Snyman had no defence to the application and granted the eviction order, which directed Snyman to vacate the property by 11 May 2012, failing which the sheriff was authorised to evict him on 14 May 2012

  • On 14 May 2012 Snyman brought an application in the court a quo for the review and setting aside of one or more of the decisions of the Magistrate.

  • The court a quo dismisses Snyman’s application for the setting aside of the default judgment. However, the Court held the sale in execution to be null and void, and para (ii) of its order thus set that sale aside. The result was that Snyman was held not to have been in unlawful occupation of the property and that the eviction order of 16 February 2012 was bound to be set aside on that ground alone. But, the Court went further. It also held that Van Tonder had in any event failed to satisfy the requirements of PIE. For this reason too the eviction order was set aside.

  • Subsequently, Absa sought leave from the Court to appeal against certain paragraphs of the ordee.

  • Snyman did not seek any leave to cross-appeal against the order.

On appeal, Snyman filed Heads of Argument wherein he sought to raise the correctness of the court a quo’s refusal to set aside the default judgment granted against him in the Magistrates’ court. The Court held that it only has jurisdiction to hear an appeal against an order of the High Court if leave to do so had been granted by that Court or, in the event of a refusal by that Court, by this Court, and therefore it had no jurisdiction to entertain any argument against it.

The Court a quo held that the reissued warrant, on the strength of which the execution sale was held, fell foul of section 63 of the Magistrates’ Courts Act 32 of 1944 (the Act), read with rules 36(1) and (5) of the Magistrates’ Courts rules dealing with inter alia the process in execution and the reissuing of a warrant. Section 63 provides that: "Execution against property may not be issued upon a judgment after three years from the day on which it was pronounced or on which the last payment in respect thereof was made, except upon an order of the court in which judgment was pronounced or of any court having jurisdiction, in respect of the judgment debtor” (the period of three years contemplated in the section is also referred to as the period of superannuation).

After careful analysis of various authority, the Court found that section 63 provides that a judgment sounding in money becomes superannuated, unless the execution sale takes place within three years of that judgment. Hence the date on which the warrant of execution is issued, is of no consequence. It goes without saying that Rule 36(5) cannot change the meaning of S 63 of the Act. It follows that the date of reissue of a warrant under this Rule cannot avoid superannuation once the three year period from date of judgment elapses. Extension can only occur by order of Court, which was admittedly not obtained by Absa. It follows that the question of whether or not the reissue occurred on 18 December 2010 or on an earlier date, is of no consequence. What is relevant, is the date of the sale in execution, which was 6 December 2011. This was clearly more than three years after the date of judgment on 18 December 2007. Thus the reissued warrant, on the strength of which the property was sold in execution was null and void.

However, the Court had to deal with Absa’s further argument that the Court a quo’s reasoning reflects another mistake in that it had failed to have regard to the alternative date for the commencement of the superannuation period contemplated by section 63, that is, the date ‘of the last payment in respect’ of their judgment. It follows that the reissued warrant would still be valid if the last payment by Snyman, in respect of his bond debt, was made less than three years prior to 6 December 2011, i.e. after 5 December 2008. In this regard Snyman’s founding affidavit avers that he still made payments to Absa in settlement of his bond debt in 2008. Absa argued, that the date during 2008 is not mentioned by Snyman, but since he bore the onus to establish the facts upon which his review application relied, it was for him to allege and prove that the last payment was made prior to 5 December 2008. During the course of argument with reference to payments that were made in settlement of the bond debt after the date of judgment, it became apparent that the amount for which the warrant was reissued in 2010 remained virtually the same as the amount of the original judgment debt in December 2007. On the face of it, payments made in settlement after 2007 had therefore not been taken into account. That would be in conflict with the following statement by D R Harms et al Civil Procedure in the Magistrates’ Courts (2011) at B36.13: ‘The wording of the warrant may not exceed or vary the scope of the judgment on which it is founded. If, however, the judgment has been satisfied in part, the warrant must be issued for the unsatisfied portion only.’

In light of the above, Counsel for Absa conceded that the appropriate Order would be to refer the matter back to the Court a quo with the specific direction to determine, after receiving such further evidence as the parties may wish to present, whether the sale in execution took place contrary to the provisions of section 63 of the Act. As to the matter of costs on appeal, the court held it was appropriate that this should stand over until proceedings in the Court a quo have been finalised.

In conclusion, if a judgment (default or otherwise) is handed down, the judgment creditor has THREE (3) years from date thereof, alternatively from date of the final payment towards it was made, within which to issue the warrant of execution and proceed with an attachment. Should the judgment creditor fail to do so and proceeds to execute, a judgment debtor may proceed to have the attachment set aside.

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