Markom v Menqa and Others (1195/06) [2010] ZAWCHC 355 (1 January 2010)

Markom v Menqa and Others (1195/06) [2010] ZAWCHC 355 (1 January 2010)

The court found that the sale in execution of the applicant's property was invalid because the writ of execution was issued by the Clerk of the Court without judicial supervision, in violation of the requirements established by the Constitutional Court in Jaftha v Schoeman. The absence of judicial oversight rendered the writ invalid, and consequently, the sale in execution could not pass title to the purchaser. Section 70 of the Magistrates' Court Act, which protects purchasers in good faith, does not apply where the sale is based on an invalid writ. The applicant, as the owner, is entitled to recover the property by way of rei vindicatio. Arguments regarding the validity of the...

Citation
[2010] ZAWCHC 355
Parties
Applicant: Patrick Markom; Respondent: Desmond Menqa; Respondent: P Roux; Respondent: Heyns and Partners Incorporated; Respondent: Registrar of Deeds; Respondent: Nedcor Bank Limited; Respondent: Mr J Tromp; Respondent: Sheriff of Maitland; Respondent: City of Cape Town; Respondent: South African Revenue Services
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 January 2010
Case Number
1195/06
Procedural Posture
Civil Application / Return Day of Rule Nisi; Confirmation of Interim Interdict
Outcome
The rule nisi is confirmed in its entirety with costs awarded against the opposing respondents.
Judges
Zondi
Legal Topics
Sale in Execution, Writ of Execution, Magistrates Court Act, Judicial Oversight, Rei Vindicatio
Civil Procedure Land and Property Sale in Execution Writ of Execution Magistrates Court Act Judicial Oversight Rei Vindicatio

Case Brief

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Parties

Patrick Markom

Applicant

Desmond Menqa

Respondent

P Roux

Respondent

Heyns and Partners Incorporated

Respondent

Registrar of Deeds

Respondent

Nedcor Bank Limited

Respondent

Mr J Tromp

Respondent

Sheriff of Maitland

Respondent

City of Cape Town

Respondent

South African Revenue Services

Respondent

Procedural Posture

Civil Application / Return Day of Rule Nisi; Confirmation of Interim Interdict

Legal Issues

  1. 1 Whether the sale in execution of the applicant's property was invalid due to the absence of judicial oversight in issuing the writ of execution.
  2. 2 Whether section 70 of the Magistrates' Court Act protects the purchaser in circumstances where the sale in execution was based on an invalid writ.
  3. 3 Whether the applicant is entitled to recover ownership of the property by way of rei vindicatio.

Ratio Decidendi

The court found that the sale in execution of the applicant's property was invalid because the writ of execution was issued by the Clerk of the Court without judicial supervision, in violation of the requirements established by the Constitutional Court in Jaftha v Schoeman. The absence of judicial oversight rendered the writ invalid, and consequently, the sale in execution could not pass title to the purchaser. Section 70 of the Magistrates' Court Act, which protects purchasers in good faith, does not apply where the sale is based on an invalid writ. The applicant, as the owner, is entitled to recover the property by way of rei vindicatio. Arguments regarding the validity of the...

Court Disposition

The rule nisi is confirmed in its entirety with costs awarded against the opposing respondents.

Orders

  • The sale in execution of erf 23584 Maitland, Cape Town, is declared null and void, together with all subsequent sales of the property.
  • The Registrar of Deeds is interdicted and prohibited from registering the pending transfer from the first to the second respondent of erf 23584 Maitland, Cape Town.