Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 20373/10 & 1467/12
Before: The Hon Mr Justice Binns-Ward
In the matter between:

and

7

JUDGMENT DELIVERED: 9 FEBRUARY 2012

BINNS-WARD, J:
[1] In this matter (case no. 20373/2010) the applicant instituted proceedings on 14 September 2010, as a matter of urgency, claiming the following relief:
1. That this application be heard as a matter of urgency, as contemplated by the provisions of rule 6(12) and that the ordinary forms and service be dispensed with;

2.1. That the Sale of Execution under High Court case number 11033/2006 in respect of ERF 2775 Malmesbury, also known as 2 Louw Street, Malmesbury which was held on 16 August 2010, is declared invalid and set aside;
2.2. That Respondents refrain from registering the said property in the name of Third Respondent.

3. That paragraph 2.2 above shall operate as a temporary interdict pending the finalization of this application;
4. Granting such further and/or alternative relief as the above Honourable Court may deem fit.
That First and Second Respondents (and Third Respondent only if he opposes this application) pay the costs of this application.
[2] As might be deduced from the relief sought, the matter which gave rise to the proceedings was the sale in execution of erf 2775, Malmesbury. The sale occurred consequent upon a judgment obtained against the applicant and her co-owner of the property (whose current whereabouts are said to be unknown) as a result of their failure to service the mortgage loan which had been advanced by the first respondent bank against the security of the property. The property is residential in character. The dwelling house erected thereon has at all times material been occupied by a retired attorney, one Gert Erasmus Olivier, from whom the applicant and her ex-husband purchased the property. Mr. Olivier is the father of the applicant and is the person who, on her behalf, has deposed to all the substantive affidavits for the applicant in the matter and also in related proceedings instituted under case no. 1467/2012. Perhaps tellingly, Mr. Olivier more than once refers in his affidavits to the applicant's attorney as 'my attorney'. It is also apparent from his averments that he was independently active in seeking to stop the sale before it occurred because of his awareness that there had not been compliance with one of the prescribed pre-sale procedures.
[3] The only ground upon which the application was brought was the alleged noncompliance by the judgment creditor with one of the requirements of rule 46(7)(e) of the Uniform Rules of court. I shall describe the nature of the non-compliance, which is admitted by the respondents, presently.

[5]     As a consequence of this attitude by the applicant, the matter has dragged on,
without resolution, in this court since September 2010, that is for almost one and a

[7] It was only in November 2011 that the first respondent, evidently frustrated by the failure of the applicant to bring the matter to finality, informed the applicant of the withdrawal of its tender of an order setting aside the sale and of its intention to oppose the application and prosecute its counter-application for condonation of the non-compliance with the applicable rule. The first respondent had delivered its answering affidavit, which also served as the supporting affidavit in the counter-application in September 2010, and the applicant had replied thereto in October 2010.
[8] The third respondent, who is separately represented, had also, understandably, grown impatient with the delay, and deciding that he could no longer rely on the applicant and the bank to bring the matters to expeditious resolution, also delivered answering papers. These were delivered on 1 December 2011. In terms of the rules of procedure, the applicant, if so advised, should have delivered any reply she wished to make to the third respondent's answering papers by 15 December 2011. No replying affidavits were delivered. In addition, no heads of argument were filed by the applicant by the date fixed in terms of this court's consolidated practice notes; that is by 10 days before the date of hearing. Indeed, it appeared from information imparted by the applicant's counsel during his address in support of the application for postponement discussed below that the applicant instructed counsel only a week and a half before the hearing date.
[9] On 30 January 2012, the applicant caused a notice of motion to be issued under case no. 1467/12, in which the following relief was claimed:
1. That this application be heard as a matter of urgency, as contemplated by the provisions of rule 6(12) and that the ordinary forms and service be dispensed with;
2. For an order declaring Second Respondent (M S T Basson), Fourth Respondent (Timothy Oliver Price), Fifth Respondent (Daniel Pierre Fourie) and Sixth Respondent (Joan Booysen) to be in contempt of Court;
3. An order committing Second Respondent (M S T Basson), Fourth Respondent (Timothy Oliver Price), Fifth Respondent (Daniel Pierre Fourie) and Sixth Respondent (Joan Booysen) to prison for 60 days or such other period as the Court may determine, suspended for such period as the Court may determine on the conditions as this Court may determine.
4. An order interdicting Respondents from prosecuting their defence (if any) to the application lodged by Applicant under High Court case no. 20373/2010 until the application lodged by Second Respondent under High Court case no. 2004/2011 is heard, decided and given effect to (if any);

6. An order postponing the application under High Court case no. 2004/2011 to the semi-urgent role on a date arranged between the parties or on a date decided upon by the Court;
7. An order granting leave to Applicant to file answering [i.e. replying] affidavits in cases number 20373/2010 and number 2004/2011 within 15 days of the hearing of this matter.
8. That Second, Fourth, Fifth and Sixth Respondents pay the costs of this application
[10] When the matters in case no. 20373/2010 and case no. 1467/2012 were called I directed that the postponement of case no. 20373/2010 sought in terms of para 5 of the notice of motion in case no. 1467/2012 be argued and determined before the remaining issues in the cases. The application for postponement was opposed by the first and third respondents in case no. 20373/2010. After hearing argument on that issue I made an order refusing the application for postponement -the costs being reserved for determination with the principal case - and indicated that my reasons for doing so would be given later, if necessary. These reasons follow.

[11] The suggestion that it would be appropriate to postpone the already much delayed determination of case no. 20373/2010 until after the determination of the application in case no. 2004/2011 is wholly lacking in merit, as is the averment by Mr Olivier that an order setting aside the sale will have no effect. No purpose will be served in granting an order directing the reversal of the transfer to the person who purchased the property at the sale in execution if the application in case no. 20373/2010 for a setting aside of the sale is refused; put differently no point will be served in entertaining the application case no 2004/2011 if the procedural defect admittedly attending the sale in execution of the property is condoned, as sought by the first respondent in case no. 20373/2010, or determined to have been of a non-vitiating nature as contended by the third respondent. The usual approach in such matters is to impugn the sale pursuant to which transfer has taken place. If the sale cannot be successfully impugned an attack on the consequent transfer would be baseless. Any relief directed at reversing the transfer would be consequential upon and ancillary to an order setting aside the sale.
[12] The failure of the applicant to have delivered replying affidavits within the time period prescribed in the rules was inadequately explained. The explanation was limited to the following averments at para 29.9 of the supporting affidavit in case no. 1467/2012:

Counsel needs more time to deal with the issues and will also have to investigate the detailed averments made by Mr van Zyl regarding the value of the property.

The affidavit proceeded in para. 2.10:

....Applicant came to court on an urgent basis in September 2010 and was prepared and willing to deal with the matter there and then.
Respondents caused the delay and cannot now expect the Court to overlook the misconduct of certain parties to this action (sic).

[14] There was no explanation on affidavit whatsoever as to when counsel was first approached in the matter, nor was it explained why an application for postponement was delivered only three court days before the setdown date and seven court days after the applicant's heads of argument had been due.

[19] Turning now to the principal case in case no. 20373/2010. Rule 46(7)(e) of the Uniform Rules provides:

Not less than 10 days prior to the date of the sale, the sheriff conducting the sale shall affix one copy of the notice on the notice-board of the magistrate's court of the district in which the property is situate, or if the property be situate in the district in which the court out of which the writ issued is situate, then on the notice-board of such court, and one copy at or as near as may be to the place where the said sale is actually to take place.

[21] According to the Deputy Sheriff, he explained the purpose of his visit to Mr. Olivier. In an affidavit filed by the first respondent in support of its opposition and counter-application in case no. 20373/2010, the Deputy Sheriff averred:

On 6 August 2010 at 08h15, I went to 2 Louw Street, Malmesbury to affix a copy of the Notice of sale scheduled for 16 august 2010 at 10h00 am as per court rules. On my arrival....Mr G Olivier, the occupant opened the door and asked me if he could assist me. Please note that there are (sic) a security door about a meter from the front door. I explained to him that I need to affix a copy of the said Notice of sale on the premises. Mr Olivier then took the copy from me. Attached find a copy of the return of service, marked "A".

Mr. Olivier denied that the Deputy Sheriff gave any indication of intending to affix the notice to the property. Olivier averred that the Deputy Sheriff merely handed him a copy of the notice.
[22] It is quite clear from the averments made by the Deputy Sheriff that he misapprehended the purpose of the notice. Whereas the purpose of affixing the notice is to advertise the sale at the place at which it is to be conducted, it is implicit in the evidence of the Deputy Sheriff that he apprehended that the object was to give notice of the sale to the occupant of the property (notice to the occupant being a matter to be dealt with in the attachment process in terms of rule 46(3)). I have approached the matter accepting in favour of the applicant that the Deputy Sheriff did not inform Mr. Olivier that his intention was to affix the notice to the property. The copy of the notice handed to Olivier was annexed as annexure B to his founding affidavit in case no. 20373/2010. Annexure B bears a handwritten annotation, apparently made by Olivier, or in accordance with his instructions, which reads

[23] Mr. Olivier averred that 'being aware' that the Sheriff had not affixed a copy of the notice at or near the house he contacted his attorney, Mr Johann Harmse (also the applicant's attorney of record in the application), and advised him of 'the situation'. Harmse confirmed this with the Deputy Sheriff on 11 August 2010 and thereafter wrote to the first respondent's attorneys on 12 August 2010, as follows:

Ons bevestig dat ons optree namens MA & E Todd in hierdie aangeleentheid.
Ons instruksies is dat daar nie voldoen is aan Reel 46(7)(e) van die Hooggeregshof nie, en verwys u na Hopkins Boerdery (EDMS) Bpk van (sic) Colyn & Ander [2006] 1 All SA 497 (c)
(sic):

Dit is ons verdure instruksies dat die Balju versuim het om die kennisgewing aan te bring op of so na as moontlik aan die plek waar die verkoping werklik sal plaasvind. Bogenoemde is bevestig deur die Balju en is daar dus nie aan hierdie gebiedende reel voldoen nie.
Derhalwe vereis ons hiermee dat die beoogde veiling onmiddelik afgelas word en ontvang ons graag u skriftelike bevestiging daarvan per kerende faksimilee.
Indien die veiling voortgaan, sal ons kliente die nodige regshulp aanvra om hul belange te beskerm.
No immediate response having been received to the letter, Harmse enquired of the first respondent's attorneys on 13 August 2010, whether, notwithstanding the reported non-compliance with the rules, the sale would be proceeding.
[24] On 13 August 2010, the first respondent's attorney, responded to the applicant's attorney's letter of 12 August as follows:

We refer to the above and your fax of 12 August 2010.
We have discussed the matter with the Sheriff and are notified that all legal requirements have been met.
In the circumstances and unless the full arrears are paid prior to the Sale in Execution same must proceed.
Should your client attempt to stay the sale by way of a High Court Application, a pubnitive costs order will be sought against them.
The arrears on the account totals R385 817,48.

Kindly advise your clients accordingly.
[25] After Mr. Olivier's attorney had spoken to the Deputy Sheriff on 11 August 2010, the latter put up a notice board on the pavement outside the property. According to Mr. Olivier, the notice displayed on this board merely indicated that a sale in execution would take place. It did not set out the particulars set out in the notice of sale. Mr. Olivier's allegations in this respect have not been refuted. Be that as it may, it is common cause that soon after its placement in position, the notice board was removed.

[27] The sale proceeded on 16 August 2010, as had been indicated in the first respondent's attorneys' abovementioned letter of 13 August and orally confirmed by the Deputy Sheriff in a chance encounter with Mr. Olivier earlier on the morning of 16 August. The property was knocked down to the third respondent at the sale for a price which it is accepted was below the market value of the property. It is not suggested that the third respondent had any knowledge of the defect in the procedures which had preceded the sale.

[29] Having summarised the salient facts, it is time to consider the applicable principles.

[35] The applicant's complaint is that the non-compliance with the relevant requirement of rule 46(7)(e) was materially prejudicial to her interest in that it curtailed the proper advertisement of the sale with the consequent possibility that a potential purchaser willing to pay more than the price at which the property was knocked down to the third respondent. The relevant allegations in this regard in the founding affidavit were limited to the following averments by Mr. Olivier:
30. Rule 46(7), I submit, is prescriptive because it is aimed to secure the best possible interest in the sale and the best possible price in the circumstances. That can only be achieved if the advertising is in compliance with the legal requirements.
31. The property is sitauated on the corner of Louw and Wethmar Streets which are fairly busy roads where cars and pedestrians frequently pass by. It is also in a good residential area in town. If the notice was affixed as prescribed by the rules it is probable that there would have been more interest in the sale resulting in more competitive bidding.
32. I submit that Applicant was prejudiced by the fact that rule 46(7)(e) was not complied with.
In the context of the rest of the affidavit, those paragraphs imply that the prejudice alleged to have been suffered by the applicant manifested in the attendance of only
'about six' persons at the auction and active bidding by just two of those attending. As mentioned, the sale occurred at a price less than the market value of the property.

[36] In order to assess the cogency of the applicant's complaint it is relevant to consider the pertinent provisions of rule 46 more widely:

2. In terms of rule 46(7)(a) the sheriff appoints the date and place of the sale.
3. Rule 46(7)(b) provides that the execution creditor shall then, after consultation with the Sheriff, prepare a notice of sale setting out the place and time of the sale and giving a short description of the property, including its situation and street number, if any. This notice must also state that the conditions of sale may be inspected at the office of the sheriff conducting the sale.
4. The execution creditor must then advertise the sale by publication of the notice of sale in one edition of the Government Gazette and one edition of a newspaper circulating in the district in which the immovable property is situate. The required publication must occur not more than 15 days before and not less than five days before the date of the sale. The execution creditor is required to furnish proof of this publication to the sheriff. See rule 46(7)(c).
5. The sheriff is required not less than 10 days before the date of the sale to furnish a copy of the notice of sale by registered post to every execution creditor who has caused the attachment of the property and to every mortgagee of the property whose address is known, and to simultaneously furnish a copy of the notice of sale to every other sheriff appointed in the district. See rule 46(7)(d).

[37] It is evident from these provisions that the advertisement of the sale occurs primarily by advertisement in the Government Gazette and in a newspaper. Additional publicity to the intended sale in execution is obtained consequent upon the display of the notice on the notice board of the court of the district in which the property is situate, or, if the property is within the district in which the seat of the High Court is situate, on the High Court's notice board. All the aforementioned means of publicising the intended sale can be expected to have varying degrees of general effectiveness. Publication in a local newspaper, for instance, might objectively be considered to give the widest general publicity to the event because a broad spectrum of the population might be expected to read and take notice of the contents of such a publication. Publication in the Government Gazette on the other hand would have more limited effect because, I think, judicial notice may be taken that it isnot a publication that the ordinary member of the public reads regularly. There is no doubt, however, a class of person interested in judicial sales which will be on the lookout for what is on offer and members of such class might well be expected to regularly peruse the Gazette for information about such sales. Court notice boards will serve as an effective means of publicity only to that very limited section of the public who might refer to such boards because of a particular interest in the sort of information that gets posted there.

[39] Having regard to the affixment provision within the context described in the preceding paragraphs I am able to recognise the force in the averments of the first respondent's attorney and the third respondent (who frequently buys property at judicial sales for speculative purposes) that it does not provide a particularly effective form of publicity for sales in execution. An additional consideration is that having affixed the notice, there is no duty on the Sheriff to ensure that it remains affixed, or to replace it if it is removed by anyone, as was the notice board erected by the Deputy Sheriff in the current case, for example. I have therefore concluded that within the general scheme of rule 46, the affixment provision in terms of rule 46(7)(e) might fairly be regarded as what has been termed 'a slight formality'. There is nothing in the evidence to suggest that non-compliance with the requirement could be said to have gone 'to the root of the matter'. On the contrary, the evidence shows that the property had been intensively marketed over a six month period on the first respondent's 'Quicksell' programme without any interest being elicited from the buying public. It seems that the property could be realised only on a forced sale; it being notorious that prices realised at such sales might be expected to be lower than those which the owner would hope to achieve in a transaction at arm's length between willing buyer and seller.

[40] Considerations of materiality thus weigh heavily against granting the setting aside of the sale sought by the applicant.   In determining to overlook the noncompliance I have also taken into account the manner in which the applicant has conducted these proceedings, as well as the prejudice that would be occasioned to the third respondent, who has been an innocent party in the process were the sale to be set aside.

[42] In the result the following orders are made (it is convenient to deal first with case no. 1467/2012):

In case no. 1467/2012
1. The applicant is directed to pay the costs of the first and third respondents attendant upon the dismissal of her application, in terms of paragraph 5 of the notice of motion, for a postponement of the hearing in case no. 20373/2010.
2. The application for relief in terms of paragraphs 2 and 3 of the notice of motion is struck from the roll.
3. The application for an interdict in terms of paragraph 4 of the notice of motion is dismissed with costs.
4. It is recorded that no orders are made in respect the relief sought in terms of paragraph 6 of the notice of motion and also paragraph 7 of the notice of motion insofar as that paragraph bears on case no. 2004/2011 because case no. 2004/2011 did not serve before this court.

In case no. 20373/2010
1. The application is dismissed.
2. The applicant shall be liabie for the third respondent's costs of suit; and in for the first respondent's costs of suit incurred after 14 April 2011.

A.G. BINNS-WARD
Judge of the High Court

FOR THE APPLICANT                   :           Adv. J.A.B. NEL
                                                            
INSTRUCTED BY                            :           BASSON LOUW ATTORNEYS
 
FOR THE 1ST RESPONDENT       :           ADV. D. VAN REENEN
 
FOR THE 2ND RESPONDENT       :           
 
FOR THE 3RD RESPONDENT       :           ADV. D. VAN DER MERWE
 
INSTRUCTED BY                            :           COHEN SHEVEL & FOURIE
 
DATE OF HEARING                       :           2 FEBRUARY 2012
 
DATE OF JUDGMENT                    :           9 FEBRUARY 2012