When it becomes too late to execute your judgement

When a judgment in respect of monies owed, delivery of property, whether it is moveable or immovable, or for ejectment, is obtained it shall be executed by way of a warrant of execution. Same has to be issued and signed by the clerk of the court and sent to the sheriff to serve upon the debtor to give effect thereto.

Section 63 of the Magistrate Court Act 32 of 1944 (“The Act”) read as follows:

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 on the application and at the expense of the judgment creditor, after due notice to the judgment debtor to show cause why the execution should not be issued”.

This section was considered in the matter of ABSA Bank Limited v Snyman (22/2014) [2015] ZASCA 67.

The Appellant in the aforementioned matter is ABSA Bank Ltd and the Respondent is Mr J F Snyman.  Mr Snyman effected a bond to be registered over his property in favour of ABSA during 2005. Mr Snyman acknowledged his indebtedness of R82 000,00 towards capital owing to ABSA and R20 000,00 in respect of costs.

ABSA issued summons against him for an amount of R89 690.46, with interest and costs, as well as for an order declaring his property executable after Mr Snyman fell in arrears with his bond repayments. ABSA obtained default judgment against Mr Snyman on 18 December 2007. A warrant of execution was issued against the property on the same day. This warrant remained inactive until 2010 when it was reissued by the clerk of the Court.

Mr Snyman was personally served with the re-issued warrant of execution on 1 February 2011. The property was then sold in execution at an auction sale and was purchased by Mr van Tonder. Mr van Tonder served a notice to vacate the property on Mr Snyman on 15 December 2011 and when Mr Snyman failed to move out of the property, MR van Tonder brought an application for his eviction.

The eviction order was granted against Mr Snyman, in which it was ordered that Mr Snyman must vacate the property by 11 May 2012, and should he fail to do so, the sheriff is authorised to evict him on 14 May 2012.

Mr Snyman then brought an application on 14 May 2012 in the Western Cape Division of the High Court in Cape Town for the review and setting aside of one or more of the decisions of the Magistrate, including the default judgment granted on 18 December 2007, the Sale in execution of the property on 6 December 2011 and the eviction order granted on 16 February 2012.

On appeal to the Western Cape High Court, Davis AJ with Blignaut J concurring held that the default judgment was granted on 18 December 2007 where after a warrant of execution against immovable property was issued on the same day.

On 18 December 2010, the clerk of the court re-issued the warrant of execution against immovable property, resulting in the property being attached and sold in execution based on the reissued warrant.

The question before the court was whether or not the clerk of the court was able to re-issue the warrant of execution without approval of the court.

The judgment which was granted on 18 December 2007 superannuated at midnight on 17 December 2010. The result was that the re-issue of the warrant on 18 December 2010 was invalid and therefore could not result in a valid sale in execution.

Brandt JA (Cachalia, Shongwe, Wallis and Petse JJA concurring) held that the date of the re-issue of the warrant of execution would not avoid execution once the three year period from the date of judgment has elapsed, but that an extension of the superannuated period could only happen by way of an order of court, which was not obtained in this instance.

The date of the sale of execution, which took place on 6 December 2011, was more than three years after the date of judgment on 18 December 2007.

It further came to the court’s attention that there were payments made in settlement of the bond debt after the date of judgment was obtained and that the amount in terms whereof the warrant was reissued in 2010 remained the same as the amount of the original judgment debt in December 2007.

That would be in conflict with the statement made by D R Harms et al Civil Procedure in the Magistrates’ Courts (2011) at B36.13 which reads as follows:

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.”

It is clear that a valid warrant of execution is an essential formality for a valid sale in execution to take place. Therefore when a warrant of execution is invalid, the sale in execution would be null and void as well.

It is important to note that a judgment sounding in money becomes superannuated as provided for by Section 63 of the Act, unless the execution of the sale occurred within three years of that judgment, and therefore the date on which the warrant of execution is issued is irrelevant.

The right way to extend a sectional title

Thinking of closing that patio or adding that extra room onto your townhouse, apartment or duet?

Not doing it properly from the beginning could cause you headaches down the line.

In today’s times, many people live in townhouse complexes, duets or subdivided properties which are governed by the Sectional Titles Act, 95 of 1986. Whether it is for economy, increased security, a better sense of community or just to downscale your garden size, a sectional title property has many benefits. Unfortunately, ease of extending or building-on is not one of them.

There are a few differences between full-title (or freehold properties) and sectional title properties which come into play when extensions or additions are to be made to the buildings thereon.

With a full-full title property, one merely has to have the building plans for the proposed addition or extension drawn up and then approved by the regulating authority, being a municipality for example (which is not without its own challenges, as anyone who has done it can attest to). Once the plans are approved, a reputable builder can then make the extension a reality without further ado.

A sectional title property, on the other hand, requires a multitude of further steps. The reason therefore is that any extension or addition that increases the boundaries or floor area of your unit, in turn, decreases the other members’ share of the common property to which they hold a title.

Essentially, an extension of this nature would affect the rights of the other members in that their extent of what they own would decrease by the decrease in the common property. In reality, however, most owners would not be openly affected as the extension would normally be done on an area over which the owner of the unit-to-be-extended has relatively exclusive use (ie. a patio, enclosed garden, balcony, etc), but not necessarily always an exclusive use area (EUA).

  1. The first step to be taken is to obtain the consent of the body corporate for the proposed extension. This is by a special resolution being taken by the body corporate in one of the following two ways:
  • by obtaining the written consent of at least 75 percent of the owners in a round-robin approach to each individual owner; or
  • by calling a meeting with thirty days’ notice to the owners and obtaining a three-fourths majority consent of the owners or proxies present at the meeting.

The majority vote is reckoned both in number and in value of the votes cast.

In the case of a duet, consent is thus only required from the other owner as the remaining member of the body corporate.

The special resolution should state clearly that the owner may take the remainder of the steps below.

  1. Secondly, the proposed building plans are to be approved by the regulating authority (municipality, town counsel etc) as in the case of a full-title property.
  2. Thirdly, the extension is to be built, again, as with a full-title property.
  3. Fourth, a land surveyor (or a specially qualified architect) is to be appointed to draft the revised sectional title plans, showing the addition and its effect on the common property or EUA.

If the addition is built over- or onto an EUA created by the rules of the body corporate (usually a reserved parking spot or an enclosed garden), no problem is posed by the EUA. If the addition is built over- or onto an EUA specified in the sectional title plan, the EUA must first be removed by cancelling the notarial deed between the body corporate and the owner who holds the right to the EUA. If the EUA is not wholly used, the land surveyor will demarcate a new smaller EUA on the revised plans and a new notarial deed will need to be ceded by the body corporate to the owner.

The land surveyor will also draft a new schedule of participation quotas for the units stating the percentage with which the extension has changed them.

  1. Lastly, a conveyancer is to be appointed to bring an application to the Deeds Office for the extension to be incorporated into the sectional title scheme.

To do this, the conveyancer will require the new sectional title plans showing the extension, the schedule of the amended participation quotas, as well as a certificate from the land surveyor that the participation quotas have- or have not changed by more than 10 percent.

If the participation quotas have changed by less than 10 percent, the conveyancer only needs consent from the mortgagee of the extended section (most often a financial institution) if it is bonded.

If the quotas have changed by more than 10 percent the conveyancer needs to give mortgagees of each and every bonded section in the sectional title scheme notice by registered post. The notice must state the details of the bond held, the mortgagor, the extension, and the impact the extension will hold for the security held by the mortgagee.

If the mortgagee(s) consent(s) or do(es) not object within thirty days, the conveyancer may lodge a certificate of the consent with the application to the deeds office.

  1. Finally, the conveyancer must lodge a rates clearance certificate and (as the extension entails the acquisition of more land by extending the section) a transfer duty receipt, usually for a nominal amount.

The Deeds Office will then inspect the application, the new sectional title plans and supporting documentation and update the scheme and the title deed of the extended section accordingly.

Okay, as you can see, it is quite a process to extend a sectional title property. Why not just close off that patio or balcony and be done with it? Your neighbour doesn’t have a problem, and it looks neat and adds value to your home, right?

Unfortunately, these steps have to be followed. Most importantly when it comes to selling your property one day.

If you have extended or built-on, and such extension has the effect of changing the boundaries or floor area of your section, it may be difficult or impossible to sell the property without first taking these steps. Or worse, you manage to sell and the buyer’s loan application is stalled during the transfer process because the structures, the building plans and the sectional title plans do not match.

Most, if not all, agreements for the sale of immovable property also contain a clause whereby the seller warrants that the plans (both building and sectional title) are up to date and registered, and that any improvements to the property (buildings) are approved.

Accepting an offer to purchase bearing such a clause with unapproved and / or unregistered plans (especially the sectional title plans) could lead to breach of contract on your part, together with time-consuming and costly reparations to be made.

By
Dylan Lowe
dylanl@dyason.co.za

The rolling stone: Mandament van Spolie

By fluke or by design, and as propitious as my moirai would have it, the memories of my inquisitive youth days not long forgotten came knocking. I remember a paragon who together with many other persons with colossal intellect and drive were tasked with the obligation, as blacksmiths, of hammering me together with countless others into jurists. Professor D was tasked, for the purpose of this letter, with the avocation of sharing his wealth of knowledge in the Law of Property and Roman Law. Needless to say, naysayers had condemned us to remaining in the institution perpetually repeating the same course. Prof D, a man of admirable wits, in detail took us through the dictates of the Law of Property, as it were and as it is under constitutional supremacy. Memorializing the effort and sacrifice made by cognoscente such as our Prof D, in exalting them I proceed herein to take a bit from the wealth of knowledge I have amassed as a result of their ground work and their supererogatory efforts.

Mandament van spolie is derived from the principle of spoliatus ante omnia restituendus est (the person who has been deprived of his possession must first be restored to his or her former position before the merits of the case can be considered), which application and conception can be traced back as canon redintegranda of the Decretum Grataini. The founding purpose of mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands therein causing tohubohu, and allow the court to pronounce on disputes.

The application of mandament van spolie extends to instances wherein a person is deprived unlawfully (in part or in full) of his possession of property, a joint possessor is deprived of his co-possession by his partner taking exclusive control of the object held jointly, a person is deprived unlawfully of his quasi-possession of a servitude right, and where a person is deprived unlawfully of his quasi-possession of other incorporeal rights.

It is established in our law that to obtain a mandament van spolie a person who claims spoliation must prove that he was in peaceful and undisturbed possession of the thing, and further that he was unlawfully deprived of such possession. The Respondent may advance as his defence that: the applicant was not in peaceful and undisturbed possession of the thing at the time of dispossession, the dispossession was not unlawful and therefore did not constitute spoliation, that restoration of possession is impossible, and the Respondent acted within the limits of counter-spoliation in regaining possession of the article.

Mandament van spolie is premised on possession and interruption of such possession. Possession, which, connotes the factual and mental domination of a thing by a person. A minimum measure of control is a prerequisite for all types of possession, while the mental state of the possessor may differ depending on the circumstance. It is paramount to note again that possession is not ownership. And as Prof D once argue to the complete disgruntlement of our young minds, even if you are the owner of the thing the possessor may still successfully bring a mandament van spolie application against you if you spoilage their possession.

Taking all the above into account, and noting that mandament van spolie comes from a time where trees had the ability to walk, animals spoke to humans, stones had hands and stood upright as man. Development around us gesticulates for principles in law to adapt and also calls for the reinvestigation of the original concepts and the need to develop new remedies.

Development has aroused specific questions in relation to the application of the mandament van spolie in instances, which questions amongst others include: whether there can be spoliation in relation to electricity, internet services, telephone services, and cancelation of a subscriptions. Mandament van spolie has in instances been viewed as an old remedy which has been catapulted into obscurity due to its lack of continuous calling for it within our constitutional jurisprudence.

The quintessence of the concept of mandament van spolie cannot be explored fully herein. I submit however that we owe it to ourselves as the legal baton bearers to explore its limits and to advance to the courts stern and puissant arguments that will ensure the development of our common law.

By
Gastavus Chabalala (African Child)
gastavus@dyason.co.za