Menqa and Another v Markom and Others (604/06) [2007] ZASCA 172; [2007] SCA 172 (RSA); [2008] 2 All SA 235 (SCA); 2008 (2) SA 120 (SCA) (30 November 2007)

Menqa and Another v Markom and Others (604/06) [2007] ZASCA 172; [2007] SCA 172 (RSA); [2008] 2 All SA 235 (SCA); 2008 (2) SA 120 (SCA) (30 November 2007)

The Supreme Court of Appeal held that the sale in execution of Markom's property was invalid because the warrant of execution was issued by the clerk of the magistrate's court without judicial oversight, as required by the Constitution and the Jaftha decision. Section 70 of the Magistrates' Courts Act does not protect a purchaser in circumstances where the sale is void due to such a fundamental defect. The retrospective effect of the Constitutional Court's declaration of invalidity applies, rendering the sale and all subsequent transfers null and void. However, the court declined to order immediate re-registration of the property in Markom's name, noting that Menqa had paid substantial...

Citation
[2007] ZASCA 172
Parties
Appellant: Desmond Menqa; Appellant: Owen Peter Roux; Respondent: Patrick Markom
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2007
Case Number
604/06
Procedural Posture
Civil Appeal / Appeal From Cape High Court Judgment Confirming Rule Nisi Declaring Sale in Execution and Subsequent Transfers Null and Void.
Outcome
Appeal partially upheld; confirmation of order for re-registration of property set aside; orders declaring sale and subsequent transfers null and void confirmed; costs order amended.
Judges
Scott, Cloete, Van Heerden, Jafta, Kgomo
Legal Topics
Sale in Execution, Judicial Oversight, Magistrates Courts Act, Rei Vindicatio, Retrospective Effect of Constitutional Invalidity, Adequate Housing Rights
Civil Procedure Constitutional Law Land and Property Sale in Execution Judicial Oversight Magistrates Courts Act Rei Vindicatio Retrospective Effect of Constitutional Invalidity +1 more

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Parties

Desmond Menqa

Appellant

Owen Peter Roux

Appellant

Patrick Markom

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape High Court Judgment Confirming Rule Nisi Declaring Sale in Execution and Subsequent Transfers Null and Void.

Legal Issues

  1. 1 Whether the sale in execution of the property was invalid due to lack of judicial oversight as required by the Constitution.
  2. 2 Whether section 70 of the Magistrates' Courts Act protects the purchaser in circumstances where the warrant of execution was invalid.
  3. 3 What is the appropriate remedy when a sale in execution and subsequent transfers are declared null and void.

Ratio Decidendi

The Supreme Court of Appeal held that the sale in execution of Markom's property was invalid because the warrant of execution was issued by the clerk of the magistrate's court without judicial oversight, as required by the Constitution and the Jaftha decision. Section 70 of the Magistrates' Courts Act does not protect a purchaser in circumstances where the sale is void due to such a fundamental defect. The retrospective effect of the Constitutional Court's declaration of invalidity applies, rendering the sale and all subsequent transfers null and void. However, the court declined to order immediate re-registration of the property in Markom's name, noting that Menqa had paid substantial...

Court Disposition

Appeal partially upheld; confirmation of order for re-registration of property set aside; orders declaring sale and subsequent transfers null and void confirmed; costs order amended.

Orders

  • Paragraphs 1.1, 1.2 and 1.3 of the rule nisi are confirmed.
  • The first and second respondents are ordered to pay the applicant's costs jointly and severally, the one paying the other to be absolved.