IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 1195/06

In the matter between

ZONDI, AJ

1.1. Declaring as null and void a sale in execution of a property known as erf 23584 Maitland, Cape Town, situated at 17 Camden Street, Maitland, Cape Town, allegedly held on 17 November 2003, together with all subsequent sales of such property thereafter;
1.2. Interdicting and prohibiting the registration by the Fourth Respondent of the pending transfer from the First to the Second Respondent of the property known as erf 23584 Maitland, Cape Town, situated at 17 Camden Street, Miatland, Cape Town;

1.3. Suspending execution on a judgment obtained against the applicant in the Magistrates' Court for the District of Cape Town under case number 26081/1996 in terms of section 78 of Act 32 of 1944, pending finalisation of an appeal against the judgment of the learned Magistrate Jaxa in the Magistrates' Court for the District of Cape Town of 18 August 2005 under case number A536/2004 in this Honourable Court, or finalisation of other proceedings to set aside such judgment instituted within one month of the final order;

[3] In early 1995 the applicant purchased the property from the deceased estate of one Kock ("the deceased") for the sum of R120 000-00. He is currently residing at the property with his common law wife. He has been resident at the property since about April 1997. When he purchased the property it was occupied by one Jules Tromp, the sixth respondent, in terms of the lease he had with the deceased.

[5] On 19 November 1999 the sixth respondent obtained a default judgment against the applicant. According to the applicant he only became aware of the default judgment some years later when a notice of sale was served at the property on 13 November 2003. In terms of that notice the sale was to take place on 17 November 2003. Prior to consulting with N Allen Attorneys, who launched an application for an order staying the sale of property in execution, the applicant had initially seen a certain Mrs Davidson of Davidson and Badrodien Attorneys.

[7] The second respondent bid for the property on behalf of the first respondent at the auction and thereafter signed the conditions of sale on his behalf.

[8] The applicant thereafter applied for rescission of the default judgment. This application had been set down for hearing on 19 January 2004 but was dismissed because of non-appearance of his attorney. He then applied for a rescission of the judgment dismissing his first application for rescission. This application was dismissed on 23 November 2004. Before bringing this application the applicant had on 24 February 2004 lodged an appeal against the order dismissing his rescission application which he subsequently withdrew on 27 August 2004.
[9] On 9 September 2005 the applicant noted an appeal against the dismissal of the rescission application.

[10] The sheriff re-attached the property on 26 May 2005 on the instruction of the sixth respondent's attorneys. The second respondent attended the sale in execution and bid for the property on behalf of the first respondent. The first respondent paid R110 000-00 for the property. The property was transferred to the first respondent on 11 November 2005. On 6 December 2005 the first respondent sold the property to the second respondent for R490 000-00. The transfer of the property to the second respondent is still pending. It is this transfer which the applicant has sought to interdict.

Discussion:

Validity of the Writ:

"Whenever a court gives judgment for the payment of money or makes an order for the payment of money in instalments, such judgment, in case of failure to pay such money forthwith, or such order in case of failure to pay any instalment at the time and in the manner ordered by the court, shall be enforceable by execution against the movable property and, if there is not found sufficient movable property to satisfy the judgment or order, or the court, on good cause shown, so orders, then against the immovable property of the party against whom such judgment has been given or such

order has been made."

insufficient movables exist to discharge the debt, the creditor will need to approach a court to seek an order permitting execution against the immovable property of the judgment debtor. The court will decide whether or not to order such execution having considered all relevant circumstances."

[21] The next question to determine is the effect of this finding on the first respondent who bought the property at a sale in execution. Section 70 of the Magistrates Court Act provides:

"A sale in execution by the messenger shall not, in the case of movable
property after delivery thereof or in the case of immovable property after registration of transfer, be liable to be impeached as against purchaser in

good faith and without notice of any defect."

Suspension of the writ:

[25] It is also submitted by the applicant that the application for rescission and a subsequent appeal suspended the execution process and that if sixth respondent intended to proceed with the execution process he should have sought from court an order in terms of section 78 of the Magistrates Court Act.

"Where an appeal has been noted or an application to rescind, correct or
vary a judgment has been made, the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application. The direction shall be made upon such terms, if any, as the court may determine as to security for the due performance of any judgment which may be given upon the appeal or application."

[27] In his papers the applicant avers that he only became aware of the judgment on 13 November 2003 when he received a notice of sale on advising him that the sale in execution was to take place on 17 November 2003. In the morning of 17 November 2003 he successfully applied for and obtained from Magistrates Court an order staying the sale in execution, pending "an application for rescission of judgment to be brought... within 10 days" of the granting of the order. It is not disputed by the applicant, however, that the order reached the sheriffs attention after conclusion of a sale in execution.
[28] On 1 December 2003 the applicant applied for rescission. His application was dismissed on 19 January 2004 because of non-appearance of his attorney. On 11 March 2004 he noted an appeal against the Magistrates' decision dismissing his application for rescission. The applicant withdrew this appeal on 27 August 2004. On 10 September 2004 he launched an application to rescind the Magistrates' decision dismissing his first application. This application was dismissed on 23 November 2004. On 9 September 2005 he noted an appeal against the Magistrates' decision of 23 November 2004. The appeal is still pending before this Court.

[29] On 7 November 2005 the property was transferred to the first respondent.

The purchaser must be shown to have had knowledge of defect before the sale. I accordingly reject the applicant's contention.

The Order:

ZONDI, AJ