Sherrif of PineTown; In Re: Ithala Development Finance Corporation Ltd v Buthelezi (12242/2005), Ex parte [2005] ZAKZHC 26; 2008 (1) SA 456 (D) (2 November 2005)

REPORTABLE CASE NO 12242/2005

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

In the matter of

EX PARTE SHERIFF OF PINETOWN

In re :

ITHALA DEVELOPMENT FINANCE

CORPORATION LIMITED ............................ Execution Creditor

and

THOKOZANI ISAAC BUTHELEZI............................ Execution Debtor

Delivered :

2 November 2005

J U D G M E N T

LEVINSOHN J :

The Sheriff of Pinetown has placed papers before me in which he applies for an order cancelling a sale in execution. The sale was held pursuant to a warrant of execution issued out of the magistrate’s court for the district of Pinetown under Case Number 17437/98. The purchaser at the sale failed to perform his obligations in terms of the conditions of sale. At a hearing convened in my chambers the Sheriff informed me that the magistrate of the district has declined to make an order cancelling the sale. As I understand it the magistrate takes the view that he/she does not have the statutory power to do this.

The sheriff submitted that this Court enjoys an inherent jurisdiction and would be empowered to make such order. I was also told that judges of this Division have in the past indeed granted orders to this effect.

The rules of the magistrates’ court regulate the procedure with respect to the levying of execution and the holding of sales in execution particularly in regard to immovable property (Rule 43). Rules 43(7)(a) provides : -

“The conditions of sale shall be prepared by the execution creditor and shall inter alia provide for payment by the purchaser of any interest due to a preferent creditor from the date of sale of the property to date of transfer. The execution creditor shall not less than 20 days prior to the appointed date of sale, deliver 2 copies of the conditions of sale to the sheriff and 1 copy thereof to each person who may be entitled to notice of the sale.”

Rule 43(10) is important in this context : -

“The sale shall be by public auction without reserve and the property shall, subject to the provisions of section 66(2) of the Act and to the other conditions of sale, be sold to the highest bidder.”

Rule 43(13) provides : -

“The sheriff shall give transfer to the purchaser against payment of the purchase price money and upon performance of the conditions of sale and may for that purpose do anything necessary to effect registration of transfer, and anything so done by him shall be as valid and effectual as if he were the owner of the property.”

What is clear I think is that a judicial sale by public auction is held and it is governed by the conditions of sale. Any failure to comply with the conditions particularly in regard to payment of or securing the full purchase price will amount to a breach of contract which in turn would entitle the Sheriff to cancel the sale. I assume that in every case the conditions of sale will contain a stipulation to the above effect.

At common law the Sheriff had to make an application to the High Court for an order cancelling the sale where a purchaser failed to comply with his/her obligations.

See Sheriff v Gillingham 1907 TS 190;

The Sheriff v Mashaba 1948 (4) SA

870 T.

Rule 46(11) of the High Court Rules has made this procedure unnecessary since in terms of the Rule the Sheriff can apply to a judge in chambers for a cancellation. The magistrate’s court does not have a similar provision.

I do not think the High Court’s inherent jurisdiction can be extended to include a power to cancel a judicial sale in a lower court by means of a procedure akin to Rule 46(11). The High Court’s inherent jurisdiction is essentially concerned with that Court’s power to regulate its own procedures. This lacuna in the Magistrates’ Court Act and rules seems to me to be a matter which should enjoy the attention of the Rules Board.

No order is made in this matter.