invalid sale-in-execution - Uniform Rule 46(7)(e) of the Uniform Rules of Court - Supreme Court of Appeal

SERI represents the former co-owner of a residential property in Malmesbury, Ms Todd, in a matter before the Supreme Court of Appeal (SCA). On 16 August 2010, the Sheriff sold her property in execution of a mortgage bond registered against it in favour of FNB. The property was sold to Mr van Zyl, who purchased the property with assistance of a loan obtained from Standard Bank. The Sheriff conducted the sale despite having not complied with Uniform Rule 46(7)(e) of the Uniform Rules of Court.

Ms Todd, assisted by her father, accordingly launched an urgent application to set aside the sale of the property. She obtained an interim interdict restraining the transfer of the property to Mr van Zyl pending the outcome of that application. Unfortunately, the property was nonetheless transferred to the new owner by conveyancers at FNB’s erstwhile attorneys. Ms. Todd then instituted contempt proceedings against the conveyancers and an application to compel the Sheriff to re-transfer the property back into her name. On 2 February 2012, the application to set aside the sale-in-execution and the contempt application came before Binns-Ward J in the court a quo. The re-transfer application was not enrolled, although there is some indication on the record that it should have been. At that juncture, Ms Todd applied to postpone the application to set aside the sale-in-execution pending the enrolment and determination of the re-transfer application and the contempt application.

Ms Todd’s sole contention is that the sale-in-execution of the property was invalid for want of compliance with Uniform Rule 46(7)(e). There is no dispute that the Sheriff did not adhere to this rule, which embodies important formalities: it advertises the sale of the property, including at the place the sale will happen, and informs the public of the nature of the thing to be sold. The full and proper advertisement of a sale-in-execution is an important means of ensuring that the sale achieves as close to fair value as possible, in the interests of both creditor and debtor. This case is important to ensure fairness of the sale-in-execution process.

The matter was heard in the SCA on 14 May 2013. Judgment was handed down on 23 May 2013 in which the SCA found that a court has a general discretion to condone non-compliance with the rules relating to sales-in-execution where the non-compliance is not “material”. In other words, where it can be shown, on the probabilities, that complying with the rules would not have made a difference, a court can condone non-compliance with them.

  • Judgment (23 May 2013) here.
  • Heads of argument (19 November 2012) here.