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.