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Chapter 1 : Profile and Logistics

Chapter 2 : Service

Chapter 3 : Execution

Chapter 4 : Winding down

Documents / Forms 

 

 

A BEGINNER’S PRACTICAL GUIDE TO THE SHERIFF’S PROFESSION

 

Dedication

SANAPS dedicates this guide to the newly appointed sheriffs and trust that it would be of some assistance.

Acknowledgements

SANAPS expresses its deep gratitude to SASSETA in funding this guide. Many of the forms used are available on various Government websites and some administrative forms have been drawn up by sheriffs for the general usage of the profession. The authors of these forms are acknowledged. I also extend my thanks to Ashraf Dawood, sheriff of Cullinan for his assistance.

Disclaimer:

Neither the author nor SANAPS can accept any responsibility for any act or omission arising from consulting this guide. All advice is used at the reader’s risk. The author has gone through great lengths to ensure the accuracy of the information contained in this guide. However, the final responsibility of accuracy lies with the reader. It is important to note that laws are in a constant flux and the onus is upon the user to ensure correctness.

 

Copyright:

 

©South African National Association of Progressive Sheriffs (PTY) Ltd.

All rights reserved. No part of this guide may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, electrostatic, magnetic tape, mechanical, photocopying, recording or otherwise without permission in writing from the author.

Gender:

 

A reference to the Sheriff as ‘he’ includes reference to the Sheriff as ‘she’.

 

Introduction:

 

This guide is not a scholastic tome. It is a basic guide for the profession. I have tried to cover as wide a range of topics as possible, beginning with the profile of a sheriff and concluding with the winding -up of an office. There may be topics overlooked or insufficiently elaborated on. Therefore, consider this as a work in progress and any further suggestions and contributions will be greatly appreciated. Kindly forward all suggestions and queries by clicking on the auto query tab on the home page or forward these to iqubaldawood@gmail.com.This guide, particularly regarding the administration, is not meant to be applied rigidly, and the user’s discretion is welcomed.

 

The last legislation date:

 

All legislation referred to herein is dated up to the  1 June 2014.The onus is on the reader to ensure that all updated legislative versions should be applied.

 

How to use this guide?

 

  • The guide is divided into 4 chapters. Chapter 1 deals with the appointment procedure and the legal and logistical requirements in setting yourself up. Chapter 2 deals with service. Chapter 3 deals with execution. Chapter 4 deals with the winding- up of an office.

 

  • Type in a topic on the search facility and the appropriate item will appear.

 

  • Any form required from this guide, can be downloaded from the download tab on the home page.

 

  • The text box and star below are used as indicated.

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Please register in order for us to see who is using this website. There is also a SANAPS Membership Application Form (F1) should you choose to join this Association.

 

Acronyms:

  • AARTO – Administration and Adjudication of Road Traffic Offences Act, 1998 (Act No. 46 of 1998).
  • Constitution – Constitution of the Republic of South Africa, 1996.
  • DOJCD – Department of Justice and Constitutional Development.
  • High Court – High Court Act 59 of 1959.
  • Insolvency Act – 24 of 1936.
  • Magistrate Court – Magistrate Court Act 32 of 1944.
  • Minister – Minister of Justice and Constitutional Development.
  • RTMC- Road Traffic Management Corporation.
  • SARS- SA Revenue Services.
  • SAPS- SA Police Services.
  • Sheriffs Act and Regulation – Sheriffs Act 90 of 1986.
  • SABFS – South African Board for Sheriffs.
  • SANAPS – South African National Association of Progressive Sheriffs.

 

 

 

 

 

 

 

 

 

 

Chapter 1: Profile and Logistics

 

Who is the Sheriff?

 

The Sheriff is an independent person, appointed by the Minister in terms of Regulation 7 (a) of the Sheriff’s Act, for the purpose of serving and executing all court processes.

 

What are the Sheriff’s Functions?

 

The Sheriff has to serve processes in terms of Rule 9 of the Magistrate Court Act and in terms of Rule 4 of the High Court Act. He is also required to attach and execute assets, as well as evict and arrest in terms of the relevant rules of the different courts. As part of the execution process he has to sell assets by way of a public auction. For each step in this entire process he has to render a return of service to the relevant parties. The sheriff receives monies as a result of the execution and as these monies are not his, a trust account needs to be conducted.

 

What is a profile of a sheriff?

 

There is no basic educational requirement but preference would most probably be given to those who qualify in terms of the educational criteria, skills and expertise expected by the selectors. Government’s policy to promote equitable demographic representation would also be taken into consideration.

 

In addition, a sheriff should be a person who has a strong sense of justice. He must be firm but fair. He must be capable of executing his duties with absolute impartiality, without getting personally involved, and always be sensitive to the Human Rights imperatives enshrined in our Constitution. He must be well disciplined and set an example to all his employees especially his deputies. He must have the capacity to transfer skills, train and delegate. Strong administration and communication skills, a basic knowledge of accounting, in order to run a business and trust account, as well as some business flair is required. Computer literacy is advantageous. Time sensitivity is critical. The sheriff has to understand that occasionally, he will find himself in a hostile situation and a cool head is absolutely necessary. Office etiquette and empathy with cultural differences is essential. Above all else a sheriff must be trustworthy and conduct himself with honesty and integrity. This is because he will have to administer a trust account and a sheriff and his deputies, by way of a court order, or writ, can enter any premise or open any fixture, by reasonable force if necessary, even in the absence of the owners. He must be of some financial means or be able to raise finances as he needs to capitalise his business.

 

Above all else the sheriff is an office of the court and must conduct himself at all times accordingly.

 

Why do we need Sheriffs?

 

I’m quite sure we all agree that in any civilised society, structures have to be created to resolve conflicts in a just, lawful and peaceful manner. Courts are created for this purpose.

 

Imagine the following 2 scenarios:

Adam lends Bob R10 000.00, on the understanding that this loan with interest will be repaid in full within 6 months. Bob fails to pay.

 

Scenario 1:

 

Adam beats up Bob and demands the money. Bob is still unable to pay. Adam then breaks into Bob’s house, removes all assets from Bob’s house, claiming it to be his, in satisfaction of part of the debt. Adam still claims Bob owes him a further R4 000.00 despite taking the assets. He leaves no food or blankets for Bob or his family. Some of the items removed do not belong to Bob.

 

This is called self-help and it is illegal.

 

Scenario 2:

 

Adam summons Bob to court in order to determine whether the monies are owed or not. This summons is served by the sheriff to Bob explaining his rights and obligations.

 

The parties attend court and the court grants judgment in favour of Adam. A warrant of execution is issued which is handed to the sheriff. The sheriff notifies Bob of the judgment when inventorising his assets and later removes only so many assets as is necessary to satisfy the judgment. The sheriff respects Bob’s basic human rights by not removing food, clothing and blankets.

 

The sheriff sets into motion a procedure to establish the ownership of some of the attached assets and will not sell any goods not owned by Bob.

The sheriff then ensures fair value received of the attached assets by way of a public auction, and settles Adam’s account.

 

The sheriff’s role in this scenario avoids self-help.

 

Of the two scenarios I am certain you will agree that the second scenario is what is expected from a civilised society.

A civilised society expects the sheriff to fulfil 2 requirements;

The first principle function of the Sheriff is to notify parties of any court proceedings that are to be taken against that party. In other words, sheriffs are the principle participants in fulfilling the audi alterem partem (listen to the other side) rule as is required by natural justice, the basic principles of the Rule of Law and our Constitution. Generally, no civil matter will be heard in court until the presiding officer is satisfied that the other party has been properly notified of such matter by the sheriff.

The second function is to execute. Once judgement has been granted, the only person who has the authority to execute is the sheriff.

As can be seen, the sheriff plays a vital role in the civil justice system.

How is the Sheriff appointed?

An advertisement is usually placed in the Sunday newspapers by the DOJCD announcing the vacancies of any post, the requirements for the vacancy and where the application needs to be submitted.

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Take note of all the documentation required to be annexed. These have to be certified.

 

Once the application has been completed together with all the annexures, the application must be handed to the court manager of the post being advertised.

 

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A Provincial Advisory Committee (Reg 7 2C of the Sheriff’s Act) consisting of a chairperson (a magistrate) or the provincial regional head of the DOJCD, an attorney and a sheriff will, through a standardised criteria, after interviews with the applicants, recommend 5 applicants per post to the Minister  and the Minister will then appoint one sheriff for each post. The Minister may also appoint 2 or more sheriffs per jurisdiction in terms of S 3 (2) (b) of the Sheriff’s Act.

 

The SABF’s role in the procedure is to do an ITC check on the 5 applicants in order to satisfy itself that the applicant would qualify for a Fidelity Fund Certificate. S33 of the Sheriff’s Act deals with the additional qualifications and 2 of these qualifications are the prescribed standard of training (e) & experience (f). Some of the new appointees would therefore need to undergo training.

The different types of Sheriffs:

There are different types of sheriffs. These are:

 

  • Permanent Sheriff:

 

This is a person appointed to a specific jurisdiction on a permanent basis until date of mandatory retirement which is the age 65 years. The permanent sheriff has to operate a trust account. No consent is required from the SABFS to serve/ execute any process. A permanent sheriff is appointed by the Minister of Justice.

 

  • Deputy Sheriff:

A deputy sheriff is appointed by the SABFS in terms of S 6 (1) of the Sheriffs Act at a request from a sheriff. The deputy sheriff is employed by a sheriff who delegates the task of serving and executing upon the deputy. The deputy sheriff has all the authority and duties empowered to a sheriff in terms of the law, except the statutory obligations a sheriff has to the SABFS.

 

  • How do you appoint a Deputy Sheriff?        

Form 14 together with Schedule A (F2) has to be completed. In addition, 2 ID photos of the applicant must be furnished together with a payment of R300.00 payable to the SABFS. Once the applicant is approved by the SABFS, it will furnish the applicant with an identity card which has to be renewed annually. Provisions are being looked into to ensure greater skills from applicants before being appointed.

  • Acting Sheriff:

 

An acting sheriff usually has a permanent post but is appointed to act as a sheriff in another jurisdiction until a permanent sheriff is appointed. An acting sheriff has to operate separate trust accounts for his acting post. An acting sheriff is usually appointed to a specific jurisdiction on the demise/ removal or retirement of a permanent sheriff from that jurisdiction. No consent is required from the SABFS to serve/ execute any process. There appears to be no clear procedure in the Sheriffs Act as to who precisely appoints an acting sheriff. It is presumed that the appointment is made by the Minister.

 

  • An ad hoc Sheriff:

 

An ad hoc sheriff is nominated by any party requiring the service of a sheriff where there is a conflict of interest e.g. where the sheriff’s wife wishes to divorce him. This sheriff cannot serve this summons upon himself. The ad hoc sheriff need not operate a separate trust account. Every document served by the ad hoc sheriff requires the approval of the SABFS. In practice an ad hoc sheriff is also appointed until an acting or permanent sheriff is appointed. There appears to be no clear procedure in the Sheriff’s Act as to who precisely appointments an ad hoc sheriff.

  • Section 3 (2) (b) Sheriffs:

 

It is possible for the Minister to appoint 2 or more sheriffs within the same jurisdiction. They will however be appointed as acting sheriffs for a period of 5 years, and thereafter , subject to a review as to financial viability a permanent post or posts would be established. The S (3) (2) (b) sheriffs would in fact be competing with one another within the same jurisdiction. All their powers and functions are the same as a permanent sheriff. These acting sheriffs would have the addition burden of keeping one another informed of any attachments and execution sales within their jurisdiction.

 

  • Appointment of Persons who are not Sheriffs:

As a result of certain posts being economically unviable, no person will apply for these. However, Government is compelled to provide service delivery and in the absence of a sheriff, it is possible to appoint another person e.g. the clerk of the court as a sheriff for that particular jurisdiction. It would seem that the Minister would appoint such a sheriff. This is subject to S15 (2A) of the Sheriff’s Act being amended.

Terms of Appointment:

The sheriff is appointed up to the age of 65 whereupon he is compelled to retire. He may continue with the post as an acting sheriff thereafter, it is submitted, subject to the approval of the Minister.  Sheriffs appointed in terms of S3(2)(b) of the Sheriffs Act may be appointed as such for a period of 5 years in order to establish the financial viability of that jurisdiction. If it is viable, the status quo would be maintained, alternatively, the Minister could create 2 or more permanent posts with permanent jurisdictions. The term may be shortened by the removal of the sheriff by reason of insanity, dishonesty, resignation creation of a new jurisdiction, or death.

Congratulations (if) you have been appointed!

What now?

Once you have been appointed, you need to immediately notify the following:

  • Your local chief civil magistrate. Introduce yourself and discusses specific court days dealing with S 65 enquiries, warrants of arrests and where you wish to conduct your auctions.
  • The local attorneys. This is easily achievable by placing a notice in each attorney’s pigeon holes at the local magistrate’s office, or attending, by invitation, the local attorney’s circle meeting. Discuss with them your credit facilities, (strictly 30 days from date of statement) and time frames for the completion of work (7 days which includes a weekend).Also discuss your removal cost as this is not regulated by tariff.
  • The outgoing sheriff’s office staff so that all parties understand who is going to be employed or not.
  • The Department of Labour to register your new employees.
  • SARS to register for tax purposes and to obtain a VAT registration number if necessary. Some SARS offices insist that you should have 2 VAT certificates, one for your business and one for your execution sales.
  • The SABFS with your contact details by completing the Annual Updating of National Register for Sheriffs form. (F3)
  • You will now have to comply with certain logistical and legal requirements. You will be given an opportunity to set up your practice. This will depend entirely on the period between your notification of your appointment and the date you need to commence practising. Do not waste any time!

The objective is to be fully operational from your very first day of appointment!

Let’s first deal with the logistical requirements:


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The size of the office, store room and staff would depend entirely on the average number of processes received on a monthly basis. This normally dictates the volume of work, which would in turn determine the number of staff required.

  • Setting up an Office and Storage Premises:

It is necessary to conduct your office within your jurisdiction. Always bear in mind public access and convenience when considering the location of the office. It is difficult to advise whether a sheriff should lease or buy the premises, as each sheriff’s requirements and personal circumstances would differ. Ensure that the reception is neat, clean, safe and presentable. The SABFS will provide you with brochures pertaining to the profession and this should be freely available at your reception. Display your Fidelity Fund Certificate in a prominent place at the reception. Set out the office in such a manner that it would enhance productivity. Work produced in comfort results in quality.

In addition to the office, a sheriff would normally require a secured storeroom to store movable goods that are attached. This is generally where you would also conduct your sales. You should set aside a specific area in your storeroom to secure electronic goods. Ideally the office and store should be housed together. You could also use the storeroom for storing your records.

The size of either will depend on the volume of processes and removals.

Human Resources:

You would require both skilled and unskilled staff. They are;

  • The Office Manager:

The office manager is the most senior staff in a sheriff’s office and sees to the day to day running of the office. An office manager is usually appointed at the larger offices. All administration and day to day queries are dealt with between the office manager and the sheriff. The office manager may also be appointed as a deputy and would serve processes at the sheriff’s offices.

  • Deputy Sheriffs:

The number of deputies to be appointed would be determined by the average number of processes received monthly.

Here is a rough thumb of rule formula:

As a general rule a deputy would on average be able to deal with 25 processes per day in a rural area. If you were to receive a 1 000 processes a month and you accept your working days as 20 per month, you would on average receive 50 processes per day. You would therefore require 2 deputies. Depending on the amount of removals, an additional deputy may be considered. The sheriff could decide to serve his own processes and this could reduce the number of deputies by one.

The manner of appointment has already been dealt with on page 8.

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  • Office Staff:

You will require staff to register processes, to prepare returns for movable and immovable properties and to deal with the public. This is the core of your administrative staff. Their functions may overlap. You will require a receptionist, a filing clerk, a messenger to collect your daily mail and splitting (documents you retain for your records from documents to be returned), run errands and to post off all your returns, and perhaps a tea /cleaning lady. You will also require labourers and a driver who needs to drive a vehicle used to remove goods. Some sheriff’s sub-contract their removals. The choice will depend on each sheriff’s individual needs.

 

 

 

 

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What office equipment do you require to operate?

 

  • Hardware: Faxes, Printers, Franking Machines & Computers:

All these are absolutely vital in running a modern efficient office. It is also good practice in this day and age to arrange an internet service, which will allow you an e-mail facility as well as a research facility. Whilst it is possible to process your work manually in a smaller office, this is discouraged.

  • Software: Sheriff’s Computer Programmes:

Sheriffs require specific programmes to meet the logistical and legal requirements of their practices. There are 3 service providers who will furnish you with this programme.

 

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  • Vehicles:

You would require vehicles for the purposes of delivering processes and removing goods. Again, the type of vehicles and the number of vehicles would differ from office to office. The vehicles, new or second hand could either be purchased outright or purchase by credit agreement, this depending entirely on the capacity of the incumbent. Some sheriffs use their deputy’s vehicles and pay deputies for the usage thereof. A vehicle specifically for removals needs to also be considered if you do not intend to sub-contract.

  • Postal Boxes, Private Bags & Couriers:

Arrangements should be made for a postal box/ private bag and a private courier mail service, where this is necessary, such as Docex. Tel No: (011) 333- 6991 marketing@docex.co.za.They collect and disseminate your mail. Many attorneys use this service. Ask the outgoing sheriff whether he would still require these and if not, take it over, once more for the sake of continuity and public convenience.

  • Cellular Phones, Landlines & 2 Way Radios:

You would require cell phones for yourself and each of your deputies.

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  • Letterheads, Complimentary Slips and Business Cards (F5): Click here for examples.

Your contact details must preferably be prepared on a letterhead. You are entitled to use the logo of the voluntary Association of which you are a member. You are not allowed to use the SABFS’s logo without its consent. You should also have complimentary slips and business cards. Your presentation should reflect professionalism.

  • Invoices Books, Receipt Books, & Cheque Books. (F6) Click here for examples.

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Print the receipt books and invoices in triplicate, each page with a different colour, the top two pages perforated. One copy must be given to the payee, one copy is to be affixed in the file (left hand corner) and one copy is to remain in the book.

 

  • Office and other Furniture:

You would require work stations, desks, tables, chairs, cupboards and some basic kitchen utensils.

  • Alarms and Security:

10 It is common business practice to have sufficient security to protect staff and assets. Install an alarm system and arrange with a reliable security company to protect your assets, staff as well as the attached goods.

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  • Mini or Built- in Safes:

You will, from time to time, receive valuables that require safekeeping e.g. Jewellery, fire- arms, cash. Your books of accounts and perhaps your daily computer backups should also be stored here.

  • Notice Boards:

This is used for displaying the notices sales of movables and immovables the sheriff intends to auction. You are required by law to install this.

  • Steel Cabinets and Files:

This is required for files that are opened once an attachment has been made. Steel cabinets are preferred because it is fireproof.

Perhaps this is a good point to discuss filing. You would require at least 4 different coloured files:

Magistrate Court Movable: Yellow

Magistrate Court Immovable: Green

High Court Movable: Pink

High Court Immovable: Blue11

These should be filed alphabetically under the execution debtors surname or a company’s or Closed Corporation’s name. It is absolutely necessary to have some filing system in order to avoid overlooking participation files (files that will be sharing the proceeds of a sale) and to ensure timeous upliftments (release of attached movables & immovables).

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  • Wall, book Street Maps & GPS Devices:

This is very helpful in speedily establishing jurisdiction and finding an address. A wall chart should be prominently placed in your office. Mark off the 0-6Kms, 6-12kms and 12-20kms measured from your local magistrate’s court for the purposes of calculating travelling costs.  A book map should be handed to the deputies or perhaps a GPS devise may be provided.

  • Diaries:

These should be handed to all members of staff dealing with execution sales and upliftments. You should keep a diary to keep track of your appointments. An electronic diary is also recommended.

  • Posters and Signage:

People often complain, particularly in the rural areas that it is difficult to find the sheriff’s office. It is therefore necessary that clear posters and signage is prominently placed. You may use your Association’s logo on the signage but not the logo of the SABFS without its consent.


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  • Office Stationery and Rubber stamps:

You will require printing paper, pens, pencils, markers, paper clips, rubber bands, different coloured files, staplers, punches, sellotape, glue, calculators, etc.

A date changing rubber stamp with the sheriff’s particulars is very important.

SHERIFF RODEPOORT

P.O. BOX 9118 AZAADVILLE 1750

2011- 02- 02

 

 

 

 

TEL: 011 760- 2505/6

ROODEPOORT SOUTH

 

 

 

 

 

 

 

 

This is for 2 reasons. The sheriff’s stamped date on any process can be used as prima facie evidence as to when you received the process in the event of a damages claim against you arising from prescription. Place a Notice regarding Prescription (F7) in your reception to avoid unnecessary problems. Also ensure that a Request for Urgent Service Form (F8) is filled and signed.  You cannot be liable for damages if you had received the process after prescription. It also helps to keep track of how long you have the process bearing in mind that dilatory service is a violation of the Sheriff’s Code of Conduct.

  • Record Books.

This book is used to record all processes received by hand delivery, and all processes collected by hand delivery. A record must also be kept as to how other processes have been returned e.g. post, Docex.

  • Business Account:

This is both a logistical and legal requirement. We deal with it as a logistical requirement here. You must open and conduct a business account. This is the account in which you will deposit all your fees and disburse all your operational expenses.

We should perhaps pause here and consider your business cash flow. The SABFS will not interfere in your business. You therefore have the discretion as to which of your customers needs to pay cash before rendering a service and which would be granted a credit facility. Generally, once off customers would be required to pay up front whist your regular customers should be granted a credit facility. It is important to have a strict payment regime in order to assist you with your cash flows. Click here for a Credit Application Form (F9). Payment within 30 days of statement would ensure a good cash flow.
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Should your account not be paid, here is an example of a letter of demand (F10).

  • Can you retain a process if your account is unpaid?

The general consensus is you can. You can also refuse to render a service with the consent of a magistrate if your account remains unpaid. S 14(7)

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Keep a careful record of all transactions in the business account, for tax purposes.

  • Government Gazettes:

Advertisements of some of your execution sales would appear in the Government Gazettes as well as amendment to Rules and Regulations. Notices of insolvency that may affect your sales are also published in the Gazette. You could subscribe for hard or electronic copies.

  • Statutory Acts Rules & Regulations :

You must have access to the following Acts Rules & regulations:

 

 

Purchasing, updating and maintaining a legal library is expensive. These Acts Rules & Regulations are freely available on the websites referred to at each of the Acts. Print hard copies of the relevant material that you would be using regularly e.g. service and attachment rules rather than the entire Act or Rule.

 

 

 

  • Finances:

How do you finance your business?

All the logistics and staff would require capitalization. When the Sheriff is appointed, it is assumed that he is financially capable of establishing an office. Where the newly appointed sheriff does not have sufficient finances the following is recommended in obtaining a loan.
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In addition go to any of the major bank’s websites and these may guide you in drawing up a business plan. Also try the following website:

http://www.entrepreneurmag.co.za

as well as the SBDC (Small Business Development Corporation) Tel no: (011) 713- 6600, at websitewww.businesspartners.co.za

 

 

SANAPS has recommended to the DOJCD and SABFS that there should be some indication of income of each post advertised in order to assess expenditure.

 

  1. We now deal with the legal requirements:

In this section we will deal with the following Forms:

Form 4 –Application for a Fidelity Fund Certificate.(F11)

Form 7-Audit Report Form.*(F12)

Declaration of Residue in Trust and / or Unclaimed Trust Monies Form.*(F13)

Form 16-Statement of Levies payable to the SABFS.*(F14)

NB: Forms marked with an * need not be filled in immediately for the opening of your office. These forms need only be filled in if you have traded for a full financial year or part thereof. The only reason it is dealt with in this section of the guide is that it will form part of your legal requirements.

Let’s deal with the Trust Account and Form 7.

  • You must open a trust account.
  • In order to do this, you must have a current Fidelity Fund Certificate issued by the SABFS. You are required to fill in Form 4 Application for a Fidelity Fund Certificate.
  • This account must be conducted in terms of S22 of the Sheriff’s Act.
  • Form 7-Auditors Certificate must be filled in by a Certified Public Auditor at least once a year for the period the 1st of March to the 28th of February, or for part thereof.
  • Payment on this account must be drawn from your trust account in favour of the Fidelity Fund for sheriffs.
  • This form must be in the hands of the SABFS by the 31st of July of each year.

Perhaps this is a good point to understand the difference between a trust and a business account.

 

TRUST BUSINESS
  1. Monies do not belong to sheriff but to a third party.(Trust Creditors)
Monies (excl. VAT) belong to the sheriff for services rendered. (Fees)
  1. Statutory requirement- S22 of the Sheriff’s Act.
Business requirement.
  1. Misappropriation of trust monies is theft.
In theory you cannot steal from yourself.
  1. Any excess payment incorrectly made must immediately be refunded from business into your trust.
Any excess payment need not be refunded.
  1. You can never arrange an overdraft facility.
You can arrange an overdraft facility.
  1. Must be audited by a Certified Public Accountant.
Need not be audited.
  1. Must have a Fidelity Fund Certificate to open an account.

 

No need for a Fidelity Fund Certificate
  1. Interest belongs to the Fidelity Fund of the SABFS.
Interest belongs to the sheriff.
  1. Sheriff can never borrow from trust.
In theory sheriff can lend monies to himself from business.
  1. Cheque must be crossed e.g. “not transferable“i.e. it can never be a bearer cheque.
Cheque need not be crossed. It can be a bearer cheque.
  1. You can never draw a “cash” trust cheque
You can draw a business “cash” cheque.
  1. You can never post- date a trust cheque.
You can post- date a business cheque by arrangement with the payee.
  1. Monies can never fall into sheriff’s deceased or insolvent estate.
Monies can fall into the sheriff’s deceased or insolvent estate.
  1. You can invest monies, interest for the benefit of the SABFS.
Sheriff invests for his own credit.
  1. You can invest monies on behalf of a purchaser, interest for the purchaser’s credit.
Sheriff invests for his own credit.
  1. You can never pay taxes on your trust account.
You have to pay taxes on your business account.
  1. Interest received is not taxed.
Interest received may be taxed.
  1. R/D cheques on a trust account must send alarm signals to the SABFS.
R/D cheques on your business account will affect your credit rating.
  1. You can never use trust monies for any of your office or personal expenses.
You can always use your business account for any office or personal expenses.
  1. A trust account must be conducted properly for audit purposes.
A business account needs to be scrutinised carefully for cash flow purposes.
  1. It is possible under some circumstances to deposit fees into your trust account.
You can never deposit trust monies into your business account.
  1. Trust monies are protected by the Fidelity Fund.
Your business monies are not protected by the Fidelity Fund.
  1. Trust monies must be deposited by latest the following banking day.
Business monies can be deposited at any time.

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How do you open a trust account?

You should approach your bank and produce your letter of appointment, your I.D., the Fidelity Fund Certificate and any other documentation required by the bank for FICA purposes. The bank may also consider your credit rating.
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  • Manual or Electronic Bank Account?

 

Modern practice is to move towards electronic banking. There are a number of advantages to this and a few pitfalls. The best is to discuss this with your bank manager and use whatever you are most comfortable with. Should you decide to use a cheque book (manual) the Wording on each Cheque should be as indicated in the sample at page 16.

 

  • How do you administrate the trust account?

S23 of the Sheriff’s Act requires the sheriff’s trust books to be audited at least once annually. It is therefore important for you to discuss with your auditor/ accountant how best to go about this for his audit purposes. The onus of keeping a proper record of all trust transactions lies with the sheriff.
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General Remarks:

 

  • You can do the books manually or on a computer. You could do this yourself, or hire an accountant, depending on your requirements and skills.

 

  • The most vital record you will require is the receipt and your payment- cheque or electronic.

 

  •  It is of utmost importance that every cent made into your trust account is credited to the correct trust creditor, and every payment is debited against the correct trust creditor.

 

  • It is therefore necessary as far as possible that this information is recorded on a daily basis.

 

  • Always use the case number as a reference. This would give you a good idea as to why you have received this money.

 

  • Keep your account records in a place of safe.

 

  •  Secure your duplicate receipt and duplicate cheque/ electronic payment record on the left flap of your file cover.

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  • How updated should your books be drawn?

There are no specific provisions. However for practical purposes;
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  • Draw out, depending on the size of your office, a statement as often as possible to establish whether any monies you have received have not been debited (e.g. R/D cheque). Medium and large size offices do this on a daily basis.


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  • Declaration of Residue in Trust Account and /or Unclaimed Trust Monies Form.

(NB: Please note that this form would not be an immediate legal requirement for the opening of your office as you would at this stage not have traded for the full financial year.)

  • With respect, the form makes no sense. I am unable to establish the difference between “residue” and “unclaimed trust monies”. For what period of time should these monies lie in your trust account to qualify as unclaimed or residue? At times it takes years for immovable transactions to be completed. Would these monies qualify? Regretfully there is no clarification from the SABFS. It is also of concern that the information needs to be given in what seems to be in a deposed form, which may result in some dire consequences if not answered honestly. However the sheriff can only answer the questions honestly if these are clear and precise. Perhaps a comparison should be made with the Attorneys Act 53 of 1979 which makes clearly defines the abovementioned.

 

Once more this form need only be completed after a year or part thereof of trading. It is for the period 1st March to 28th February and must, once completed be in the hands of the SABFS by the 31st July.

  • What is meant by “gross income”?

This means all the income you have received within the financial year in your trade as a sheriff. This would include your fees, commissions & storage fees. Income derived from the services of maintenance subpoenas would also qualify. All these monies have to be deposited into your business account. The business account is dealt with here as a legal requirement. Should you have any fees in your trust account, this should be included.
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  • What monies can be deducted in order to give a clear indication of the true gross amount?

The following can be deducted:

  • VAT.
  • Refunds. This must be proved, if necessary, by way of debit notes.
  • Amounts debited e.g. R/D cheques not recovered.
  • Monies incorrectly deposited e.g. Trust monies deposited into your business account.
  • Any income not derived through your practice e.g. interest.

From the actual gross you are entitled to deduct the expenses as indicated on Form 16.

Your expense cannot exceed 20% of your income. So R230 000.00 expenses, for example, would not be allowed on a R1 000 000.00 income, but R 195 000.00 will be allowed.


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Payment for this form must be drawn from your business account and must be payable to the SABFS.

 

The other legal requirements are:

Insurance:

You would require:

  • Professional Indemnity Insurance:

 

Professional Indemnity Insurance indemnifies the sheriff against his legal liability to pay compensation, in accordance with the law, as a result of any actual or alleged negligent act, error or omission in the performance of his professional duties undertaken in the course of business.

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  • General Public Liability Insurance:

 

Public Liability or Personal Liability covers the individual or business venture against any damages and specifically excludes liability contracted in terms of any professional occupation.

This is requirements in terms of S30 (1) (b) and S33 (1) (m) of the sheriff’s Act. You may arrange your own insurance .The principle broker for the profession is:

PRIMAK Tel: (021) 945 4376 primak@versma.com.  (Head office Cape Town)

PROTEKTUM Tel: (011) 792- 6296, Johann P Coetzer: 082 453 5978, Susan Coetzer Smit

082 344 3116, e-mail address mwjohmak@iafrica.com (Johannesburg)

  • All your deputies have to be properly registered with the South African Board for Sheriffs.
  • You must notify your local magistrate court of your physical address and furnish the chief civil magistrate with a certified copy of your Fidelity Fund certificate.
  • You must request permission from your magistrate to conduct your auctions elsewhere, should you not conduct your auctions at court.
  • You must be fully acquainted with your jurisdiction. Jurisdiction is the area in which you as sheriff have the exclusive right to serve and execute. You may not enter into another sheriff’s jurisdiction nor may another sheriff enter into yours without legal authority. The effect of any process served by a sheriff outside his jurisdiction will be null and void and the consequences resulting from such service will be reversed.

Your jurisdiction also refers to the courts you have been appointed for-High Court, Lower Court or both.

The following courts fall under the High Court Jurisdiction:

  • The Constitutional Court.
  • The Supreme Court of Appeals.
  • The High Court (Supreme Court).
  • Provincial Division.
  • Local Division.
  • The Labour Court.

The following falls under the Lower Court Jurisdiction:

  • The Magistrates Court.
  • The Central Divorce Court.
  • The Regional Court.
  • AARTO.

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  • Who will the sheriff deal with?

 

  • The SABFS which is the statutory body governing the profession.
  • The public at large requiring our services.
  • Attorneys (instructors), who will most frequently inter act with the sheriff.
  • The clerks and magistrates of your local courts.
  • Various other courts such as the Labour Court and Small Claims Court.
  • Professional Voluntary Associations.

 

  • Who are these Voluntary Associations and how does it differ from the SABFS?

Whilst the SABFS is a statutory body appointed by the Minister, Voluntary Associations are voluntary bodies organised by the profession. The SABFS’s prime objective is to protect the public’s interest. The Voluntary Associations prime objective is to protect its members’ (the sheriffs’) interest. The SABFS is financed by the profession through mandatory levies (Form 7). The Associations are financed through subscriptions by consensus payable by its members or at times, no fees are payable as funds have been raised through other sources.

  • Should I join? What are the pros and cons?

Joining an Association is voluntary. The disadvantage is that you may be liable for a nominal subscription fee. I would urge all sheriffs to join an Association. Here’s why;

  • The Sheriffs Act requires Associations to nominate from its members individuals to be appointed to the SABFS’s board as well as sitting on the Provincial Advisory Committees. Associations are recognised by Government. You may have valuable inputs to contribute to these important bodies, but as an outsider you may be overlooked.

 

  • A great deal of effort is made by the Associations to improve the lot of the Sheriffs. This is done by training of members which would include staff, motivating fee increments, seeking and securing new work avenues, propagating and commenting on changes to legislation, and interacting with relevant stakeholders. This is done for the benefit of the profession.

 

  • Time and money is spent in protecting the profession against the diminishing workloads. Estate agents, insolvency practitioners, tracers, trustees, and “fly by night sheriffs” erode the sheriff’s workload. These are but few intruders against whom the Associations continually fight to protect your interest.

 

  • The Voluntary Associations is your instant support system and is there to assist you in your day to day problems. By simply e-mailing your problem to your provincial representative or iqubaldawood@gmail.com or clicking onto the query tab on the homepage, a host of sheriffs would offer you advice or guidance virtually instantly. This is the type of support that enhances the profession.

 

  • Your Association will keep you informed of up to the date legislation changes, and case law affecting the profession. Some of these may have far reaching consequences and if you are unaffiliated, you may be overlooked to your detriment.

 

  • The final argument for you to join is to stand up and be counted!

 

  • How are the associations organised and how do they communicate?

Generally, depending on the number of members and geographical considerations, Associations form into little clusters called circles within a Province, e.g. West Rand Circle, East Rand Circle. The head of each of this circle, in turn, attends Provincial meetings which are chaired by the Provincial Leaders. The Provincial Leader in turn attends meetings which are chaired by the Associations chairperson. All sheriffs are then invited to a national meeting once a year.

Practically all communications are done via e-mails and national meeting costs are kept at a minimal as extensive use is made of teleconferencing.
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  • Code of Conduct and Training.

Finally, before beginning your practice; you need to understand the Sheriffs Code of Conduct S. (43of the Sheriffs Act) in order to avoid unnecessary problems. Make your staff and deputies fully familiar with the Code. The onus is on the Sheriff to ensure this.

The secret to a well-run, smoothly operated practice, with minimal complaints to the SABFS is simple.

 

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Having completed all your logistical and legal requirements you are now ready for business!

 

 

CHAPTER 2: SERVICE

Now that you have your infrastructure and staff in place, what next?

Immediately on opening, you will receive documentation or processes.

  • Two members of your staff should jointly, in the presence of each other, open all sealed correspondence received.
  • The processes should be stamped with a date stamp to indicate the precise date the document was received. The reasons for this have been discussed on page 19.
  • The processes need to be separated and forwarded to separate departments. Business cheques and postal orders should be separated from trust payments. These monies need to be immediately processed (accounts need to be debited or credited) and deposited into the separate banking accounts.

Processes, Registrations and Returns

On the very first day of your practice, the outgoing sheriff will also hand you a list of processes, files, a trust cheque(s) and an inventory of the movables now placed in your custody. Your signature on the lists is your acknowledgement of receipt of these. The handover should be done in the presence of your local Magistrate.

We will deal with processes, registrations, service and returns in this chapter. We will deal with executions and the trust monies in chapter 3.

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How will you receive these processes?

In addition to what you receive from the outgoing sheriff, you will also receive these by postage, registered or otherwise, courier (Docex) by hand delivery and by collection from attorney’s pigeon holes (smaller offices) and from the clerks of the court. In future, you will probably also receive processes via e-mail.
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What is a process?

A process is any document that has been issued by the clerk or the registrar of the court. By issuing a process, the clerk or registrar will furnish a case number, date stamp, and sign the process either manually or mechanically.E.gs of processes are:

  • Summonses. A summons is used to initiate a civil claim. The parties are referred to as the Plaintiff and the Defendant. There are combined summonses for damages or divorce (unliquidated claims) and simple summonses where a claim is liquidated-goods sold & delivered. Interpleader summons- a summons initiated by the sheriff to establish ownership.
  • Applications are initiated by way of a notice of motion with accompanying affidavits. The parties are referred to as the Applicant and Respondent. An ex-parte application has a return date for the respondent to address the court (to show cause) as to why a provisional order granted should not be confirmed.
  • Warrants (Magistrates ‘Court) and Writs (High Court) .Warrants of execution, eviction, delivery & arrest. For examples of these see  (F17)

Registration and Returns:

Have a look at the summons (F16) of case no 506/11.This is a Magistrates Court Summons. In addition there is a Registration Sheet (Form 17) as well as a Return of Service (F18) of the same matter. Kindly print all three. The registration sheet and return of service is computer generated. The format may change depending on the programme used but the information collated is the same.

Let us examine the summons first.

Has the summons been properly issued? Can the summons be served?

From the face of the summons, we observe the following:

  1. It is a summons.
  2. It is issued by the clerk of the civil court of Sasolburg.
  3. It is signed by the clerk.
  4. The court is in the magisterial district of Sasolburg.
  5. A case number has been issued – 506/11 or case no 506 of 2011.
  6. There is a plaintiff which is the party which initiates a civil claim.
  7.  There is a defendant who is the party against whom the claim is made.
  8.  The physical address of the defendant is provided.
  9. There is a claim for goods sold and delivered.
  10.  The number of days the defendant has within which to enter an appearance to defend is confirmed-10 days.
  11.  The instructor’s: address,
  12.  Contact details and
  13. Reference number.

Items 1 to 5 confirm that the process has been properly issued. Items 6 to 13 confirm all the information the Deputy would require for service.

The process now needs to be registered. Have a look at the registration sheet (F17).

How do you register a process?

All processes have to be registered. One person is usually delegated this duty. What do we mean by registration? The rules require us to acknowledge receipt and to keep record of certain details of every process. This detail capturing is called registration.

Have a look at the Registration sheet (F16) of the same summons -506/11.

The details captured from the summons are as follows:

  1. The issuing court.
  2. The instructors name & reference.
  3. The sheriff’s reference (computer generated).
  4. The case number.
  5. The citation of the litigants.
  6. The physical address of the defendant.
  7. The registration date and person registering the process.
  8. The deputy responsible for the process.
  9. The Court appearance date,* if any.
  10. The last date for service where there is a court date.
  11. The type of process.
  12. Provision for particulars of attempts.
  13. Provision for final service or non-service.
  14. Provisions of how the process was served or not. In this case it was served personally on the defendant. (More of this on page 41).
  15. Fee breakdown.

 


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Check the registration. Though this may appear to be time consuming, it would save much aggravation later when a query arises. An incorrect case number would result in the original process being misfiled by the clerk/registrar. It could potentially cause unnecessary delay for the request of a default judgement. Failure to register a court date would result in the process being served too late. Incorrect registration of the defendants address, could lead to a judgement against the defendant even though he has not received the summons. An incorrect registration of the attorneys would not only result in the wrong attorney being debited but the process being forwarded to the wrong attorney and consequently lost.

 

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NB! Not every item that you serve needs to be issued e.g. a letter.

Do I register a process that does not fall within my Jurisdiction?

This must be registered and your office should call the instructor to confirm whether the process has to be returned or forwarded to the correct sheriff and act accordingly. In this manner the sheriff is able to keep track of all processes received and returned.

After registration:

Once you have satisfied yourself that the registration is in order, staple it to the process which should then be forwarded to the proper departments. In the larger offices generally, deputies are allocated specific areas within your jurisdiction. These processes are to be prepared, checked and handed, on a daily basis, to the appropriate deputies. The deputy should then arrange the process in the manner in which he intends to deal with it. This is usually arranged by way of the addresses on the processes. The processes are then served (to be dealt with in this chapter) or executed(to be dealt with in chapter 3) as the case may be, and returned to the offices with the deputy’s remarks on the registration sheet and these in turn become the basis for the sheriff’s return.
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General remarks on the Deputy’s role in the service of a process.34


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As a deputy you represent the sheriff when fulfilling your duties. Your dress and demeanour is a reflection of who you represent. Your deputy’s ID card must be visible at all times (unless this would cause difficulty). Treat people with respect. Understanding cultural differences will ease a great deal of unnecessary tension.   Be firm but fair. Let it be understood that whilst you are the bearer of bad tidings, you are merely the messenger. (However bear in mind that bad news for the defendant may be good news for the plaintiff.) Empathise. You should always be in control. An anger management skill is a useful tool. Rather than being confrontational, walk away and call upon the SAPS for assistance if necessary.

How should the deputy serve the process?

Look at the printed registration sheet.

As the defendant is present, (point 14 on pages 39) the deputy should proceed as follows:

  • He should identify himself.
  • He should ask & confirm the identity of the defendant.
  • He should hand over a copy of the summons to the defendant.
  • He should explain, preferably in the language understood by the defendant, the nature (summons) and contents thereof –this is a claim for goods sold and delivered at your special instance and request, the claimed amount – R19 423.26, plus interest and the sheriffs and attorneys costs.
  • He must explain the exigency (emergency, pressure)thereof-what needs to be done by the defendant-settle the account, defend the matter or consent to judgement-  within 10 court days failing which, judgement may be taken by default and what the consequences thereof are.

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  • He should point out the instructor’s particulars.

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There is a fine line between giving legal advice and explaining to the defendant his rights and obligations.

 

  •  The defendant must be advised to hand over the matter to his attorney or to approach legal aid for assistance should he require this.
  • After explaining, ask the defendant whether he has understood and whether there are any questions.
  • Ask the defendant to sign the registration sheet for acknowledgement of the summons .If he refuses, sign your name in his presence and add the words “defendant refuses to sign”.
  • Fill in the date & time and manner of service.
  • Hand over the registration sheet with the original process for preparation of a return at the office.

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How do you prepare a return?

Have a look at the printed return of service of case no 506/11(F18).The following information is collated.

1. The sheriff’s reference.

2. The case number.

3. The return is an original which is always stapled to the original process.

4. The return is addressed to the clerk of the court and to:

5. The instructor whose name;

6.  VAT number for SARS requirements and the,

7. Account number (computer generated) and

8. Reference number is collated.

9. The full citation.

10. The defendant’s physical address.

11. The date of the service.

12. The time of service.

13. The Deputy who dealt with the summons.

14. The manner of service.

15. The rule under which the service is authorised.

16. Signature of Deputy.

17. The sheriff’s postal particulars.

18. The Sheriff’s business account Bank particulars.

19. The sheriff’s contact details.

20. All returns can be taxed. This is a requirement i.t.o Item 33(a) of the Magistrates’ Court tariff.

21. The costs breakdown.

Let’s look at the costs (fees).

The Magistrates’ Court Fees are tabulated in Part II of Table C of Annexure 2 (F19) to the Rules.

The High Court Fees are tabulated under R 68 of the High Court Rules. (F20)

How are fees determined in the return under case no 506/11?

Look at table C

Betekining (service) R28.00 (item 1B (a) (i).

Terug Stuur van Dokument (Postage of return)                          R6.00 (item 27).

Registrasie                                                                                           R6.00        (item 1 A.)

Opstel van Relaas Compilation of return)                                      R11.00 (item 3.)

R51.00

Add BTW (VAT) on R 51.00                                                                R 7.14

R68.14

General Remarks regarding returns:

  • A return is prima facie proof of service.
  • The content therein is equivalent to a deposed document.
  • All returns must be prepared on an A4 size page.
  • As far as possible the return should not exceed 1 page.
  •  High Court returns are not to be folded.
  • All High Court returns are to be returned by registered post.
  • All High Court returns must be typed.
  • Whilst it is possible to prepare Low Court returns by hand, this is not recommended.
  • A return should be prepared in the same language as the process served.
  • A return marked “original” must be forwarded to the court and a “copy” thereof is returned to the instructor.
  • Returns must be prepared in original, duplicate and as an invoice for SARS purposes.*

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What do you do after the return has been prepared?

Let a person other than the person who prepared the return check out the contents. This ensures quality control. The documents then have to be split and filed.

What do we mean by “splitting “and filing?

You would, from the time you are instructed to the time you return the process, receive a number of documents in a matter. What do you retain for your records and what do you return? A letter of instructions & the registration sheet should be retained for your records. Another example is your indemnity. The original process with the return of service should be forwarded. The process of separating the documents is called “splitting”. Your documents would then be filed in order of your registration reference number.

Where is the return forwarded?

Where service was successful, any court process   that has a court date on it needs to be returned to the local court with the original return of service and the process. A copy of the return is forwarded to the instructing attorney so that the attorney is also aware of this.  Where the court is not local, the process is sent to the instructor who will arrange the filing. All other returns are forwarded to your instructor.

Where service was unsuccessful, the process with the return is forwarded to the attorney and the attorney, knowing that the matter will not be heard on the allocated date, will arrange for the matter to be removed from the court role.

High Court processes are to be returned by way of registered post without folding. All other processes can be returned by ordinary post, placed in the attorney’s pigeon holes, or collected by attorneys by arrangement.

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Time Frames.

How long should it take from the time you receive the process to the time you return it?

This should be completed within 7 days as a weekend should also be included.

  • There is no rule that makes provision for the time but dilatory service is a transgression both in terms of the Rules and the Sheriffs Code of Conduct.
  • Public aggression will not be accepted as a reason for non -service.

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  • You must have a clear policy on the turnover period with your deputies and your instructors as to what is an acceptable time frame.
  • There will always be exceptions: Have a clear policy regarding the handling and costs for urgent services. (The Magistrate Court makes provision for this item 1 B (a) (iv) and 2 (a) (iv). The High Court rules make no provision.) Please refer to the Request for Urgent Service Form.
  • Your instructors may inform you not to return (delay) the process within 7 days e.g. the defendant will be returning within 10 days.

 

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All of the above must be done within 7 days.

 

Maintenance Subpoenas and other matters with court dates:

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Attorneys and courts are understandably upset when a process is served too late. If you serve out of time, a lot of expense is suffered by the instructor who has been preparing for a trial for that specific date. Not only will you have a great difficulty in justifying your fee, you may also be held liable for wasted costs. Remember, dilatory (late) service is a violation of the Sheriffs Code of Conduct and you may be convicted of this offence by the SABFS should the aggrieved instructor decide to lay a complaint.

The exception, in practice is service of a witness subpoena which can be served on any day before the trial-Rule 9(8).

 

 

 

 

 

What is meant by the term “service”?

(For the purposes of this exercise the term the sheriff and the deputy sheriff are used interchangeably.)

The deputy is authorised by law to serve summons and notices. Service in this sense entails the following:

  •  The prime objective is to notify the defendant/respondent, as best as possible, of the          pending matter in court i.o.w. Fulfil the audi alterem partem principal.
  • The correct address must be ascertained. The correct defendant must be ascertained.
  • The deputy, when serving the process, needs to explain the nature and contents of the process.
  • The deputy needs to explain the time period within which the defendant/ respondent needs to enter an appearance to defend or a notice to oppose.
  • The deputy needs to also explain to the defendant/respondent the nature of the claim e.g. “goods sold and delivered at the defendant’s special instance and request” and what the consequences would be should the defendant/respondent fail to act.
  • When a process is served it is referred to as “a return of service”. Where a process is not served, it is referred to as “a return of non-service”.

 

During which Times can Service /Execution not be affected?

Service in the High Court shall be affected as near as possible between the hours of 7:00am to 19:00pm. (R4 (1) (b). This is roughly between these times and it is submitted that the sheriff need not adhere strictly to the time and each service will depend on each given circumstance. Also, you are not allowed to serve on a Sunday unless a judge otherwise directs. A warrant of arrest can be affected on a Sunday. (Rule 4 (1) (b) & (c) of the High Court

Unless so authorised in the Magistrate Court, process, notice, or other document cannot be served on a Sunday or public holiday, but a warrant of arrest or attachment may be executed at any time (Rule 9 (2) (a) and (b) of the Magistrate’s Court.

Can you see the difference between a Postal Service and a Sheriff Service?

It may be argued that the sheriff does exactly what the postman does. However, there are differences.azp50

 

Service rules in the High Court: Rule 4

The Rule is quoted in italics and bold print

Let’s analyse the rule.

Rule 4 (1) (i):

Who do you serve upon?

By delivering a copy thereof to the said person personally:

This is referred to as a “personal service”. This is obviously the best type of service. There is no intermediary and the person affected is dealt with directly. The High Court insists on personal service where the defendant’s/ respondent’s status will be affected as a result of the process served. Status may be defined as the capacity for any person to be able to represent him or herself in court. The summons, where personal service is required, is a divorce summons. An application, that requires personal service, is a sequestration application. Both these would affect the parties status.

It is not always possible to serve the process personally, hence the proviso -Provided that where such a person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator, or the like of such minor or person under disability. Minors and persons under disability do not have the legal status to represent themselves in court and the process therefore has to be served on the persons referred to as these persons will represent the minor or the disabled in court.

Rule 4 (1) (ii)

Where do you serve and on whom?

By leaving a copy thereof at the place of residence or business of the said person, guardian, tutor, curator… This is fairly straight forward. Your return of service must specify whether you have served at the residence or business of the defendant/ respondent.

…with the person apparently in charge of the premises at the time of delivery…

How would you determine who is in charge?

This is purely through observation and common sense. If there is only 1 person on the premises this person would most probably be in charge. It need not be the owner or the occupier of the business or residence but a person who is in charge in the absence of the owner. You may also query who is in charge? The word “apparently” implies a subjective test and the deputy could use his discretion. Examples of persons in charge are the foreman, manager and secretary.

…being a person apparently not less than 16 years of age.

How would you determine the person’s age?

The test once more is subjective and as long as the person upon whom the process has been served, appears to be 16 years or older, this service is effective.

How would you serve where the premises is occupied not only by the defendant but by others as well?

For the purpose of this paragraph when a building, other than a hotel, boarding- house, hostel or similar residential building is occupied by more than one person or family, “residence” or “place of business” mean that portion of the building occupied by the person upon whom service is to be affected.

Rule 4 (1) (iii):

By delivering a copy thereof at a place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age”.

The difference between Rule 4 (1) (ii) and Rule 4 (1) (iii) is whilst the former refers to service at a place of residence or business; the latter refers to a place of employment.

Rule 4 (1) (iv):

“if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen”.

What is a domicilium citandi?

This is a physical address chosen by the defendant/ respondent, usually in writing as to where the defendant/ respondent would accept service of all processes. You cannot serve anywhere else accept at the domicilium address.

If you receive a summons which does not stipulate that the given address is a domicilium, and you also receive instructions from the Attorney on his letter head stating the given address on the summons is a domicilium, what should you do?

You should treat the address on the summons as an ordinary address and not as a domicilium. Alternatively you should return the summons to your instructor to rectify. Deputies normally tend to leave processes marked as domicilium on the principle door.  One should be cautious. Even though it is a service, the deputy is required to take further action in order to ascertain whether the defendant/ respondent, resides at the given address.

What happens if the defendant/ respondent is not at the domicilium address?

Example, the given address is an empty plot. The process must be served. It is impossible to have a return of non- service for a domicilium unless, the given address is non-existent. You will furnish a return of service but state that the given address is an empty plot. This is important as the instructor will be able to proceed with the matter, obtain judgement, and will know that there is no attachable movable asset on the empty plot. The process could be left preferably under a stone on the empty plot.

Rule 4 (1) (v):

How is service affected on a juristic person?

In the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law.

This sub rule makes provision for service upon juristic persons i.e. not natural persons. Obviously you can therefore not have a personal service.

What is meant by registered office”?

A company or corporation, when it is formed, needs to specify where its registered office is. This is equivalent to a domicilium address. This address establishes jurisdiction (the court area within which the company/ corporation falls). It is also the physical address where the company or corporation must receive all processes. This address need not be specified in writing (in an agreement for example) but is gleamed from the public records. Companies usually use the registered office address as that of their auditor’s offices.

What is meant by “its principal place of business”?

This could refer to a head office. The address on the summons should refer to the address as being the principal place of business.

Where there is no employee available or willing to accept service, the process can be left at the main door. This could also refer to a notice board.

Rule 4 (1) (vi):

How do you serve on an agent?

By delivering a copy thereof to any agent who is duly authorised in writing to accept service on behalf of the person upon whom service is to be effected.

In practice the agent is usually an attorney who would furnish you with a signed letter to that effect. This letter must be carefully filed with your registration sheet.

Rule 4 (1) (vii):

How do you serve on a partnership, firm, or voluntary association?

Where any partnership, firm or voluntary association is to be served service shall be effected in the manner referred to in paragraph (ii) at the place of business of such partnership, firm or voluntary association and if such partnership, firm or voluntary association has no place of business, service shall be effected on a partner, the proprietor or the chairman or secretary of the committee or other managing body of such association, as the case may be, in one of the manners set forth in this sub rule.

Rule 4 (1) (viii):

How do you serve on a local authority or a statutory body?

Where a local authority or statutory body is to be served, service shall be affected by delivering a copy to the town clerk or assistant town clerk or mayor of such local authority or to the secretary or similar officer or member of the board or committee of such body, or in any manner provided by law.

An example of a local authority would be the municipality. An example of a statutory body would be the DOJCD. Specific reference is made to whom delivery may be made. It is respectfully submitted that it may also be possible to serve on a person apparently in charge and apparently over the age of 16 years.

Rule 4 (1) (ix):

How do you serve persons in their joint or representative capacities-trustees, liquidators, executors, administrators, curators or guardians?

If two or more persons are sued in their joint capacity as trustees, liquidators, executors, administrators, curators or guardians, or in any other representative capacity, service shall be effected upon each of them in any manner set forth in this rule.

Where 2 or more persons are cited in joint capacities e.g. Trustees, liquidators, executors, etc. then service shall be affected on each of the individuals cited. So for example where there are three trustees cited, service should be affected on all three.

(a)Where the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.

This rule applies to service of interlocutory applications between attorneys and does not involve the sheriff.

Other forms of Service not involving the Sheriff.

  • Rule 4 (2) and 4(3) & R 5:

These sub rules deal with Substituted Service and Edictal citation.

Substituted Service is affected when the defendant/respondent is within the Republic of South Africa but the exact whereabouts are unknown. Edictal Citation is affected on a defendant/respondent outside the borders of the country.

How is a local process served in a foreign jurisdiction?

  • Please refer to Rule 4 (4) to Rule 4(7):

Rule 4 (8):

Whenever any process has been served within the Republic by a deputy sheriff outside the jurisdiction of the court from which it was issued, the signature of such deputy sheriff upon the return of service shall not require authentication by the sheriff.

How do you serve on the State, the Administrator (Premier), Minister or Deputy Minister?

Rule 4 (9):

In every proceeding in which the State, the administration of a province, or a Minister, Deputy Minister or Administrator in his official capacity is the defendant or respondent, the summons or notice instituting such proceeding may be served at the Office of the State Attorney situated in the area of jurisdiction of the court from which such summons or notice has been issued: Provided that such summons or notice issued in the Transvaal Provincial Division shall be served at the Office of the State Attorney, Pretoria, and such summons or notice issued in the Northern Cape Division shall be served at the Bloemfontein Branch Office of the State Attorney.

Can the Court order anything else beyond these rules to ensure effective service?

Rule 4 (10):

Whenever the court is not satisfied as to the effectiveness of the service, it may order such further steps to be taken as to it seems meet.

How do you serve a foreign issued process in the Republic of South Africa?

Rule 4 (11) (a) and (b):

Whenever a request for the service on a person in the Republic of any civil process or citation is received from a State, territory or court, outside the Republic and is transmitted to the registrar of a provincial or local division in terms of sub – section (2) of section thirty- three of the Act, the registrar shall transmit to the sheriff or any person appointed by a judge of the division concerned for service of such process or citation-

(a)   two copies of the process or citation to be served; and

(b)   two copies of a translation in English or Afrikaans of such process or citation if the original is in any language.

Rule 4 (12):

Service shall be effected by delivering to the person to be served one copy of the process or citation to be served and one copy of the translation (if any) thereof in accordance with the provisions of this rule.

Rule 4 (13):

After service has been affected the sheriff or the person appointed for the service of such process or citation shall return to the registrar of the division concerned one copy of the process or citation together with-

(a)   proof of service, which shall be by affidavit made before a magistrate, justice of the peace or commissioner of oaths by the person by whom service has been effected and verified, in the case of service by the sheriff, by the certificate and seal of office of such sheriff or, in the case of service by a person appointed by a judge of the division concerned, by the certificate and seal of office of the registrar of the division concerned; and

(b)   Particulars of charges for the cost of affecting such service.

Rule 4 (14):

The particulars of charges for the cost of effecting service under sub- rule (11) shall be submitted to the taxing officer of the division concerned, who shall certify the correctness of such charges or other amount payable for the cost of effecting service.

Rule 4 (15):

The registrar concerned shall, after effect has been given to any request for service of civil process or citation, return to the Director- General of Justice-

(a)   the request for service referred to in sub- rule (11;

(b)   the proof of service together with a certificate in accordance with form “J” of the second Schedule duly sealed with the seal of the division concerned for use out of the jurisdiction; and

(c)    the particulars of charges for the cost of effecting service and the certificate, or copy thereof, certifying the correctness of such charges.

General:

Other than the above, the court can direct any other form of service e.g. by way of an e- mail. The point is that sheriffs should be aware that service is not restricted in terms of method and official. Furthermore, there are times when parties other than the sheriff may serve.

Please note that the Labour Court Rules for service is the same as the High Court Rules except that the plaintiff could serve his own summons in the Labour Court.

 

 

 

 

 

 

How do you serve an insolvency notice?

On a natural person- involuntary sequestration: The notice of motion must be served personally. Once a provisional and final order has been granted, these orders must also be served personally.

S (11)(2) of the Insolvency Act provides that where the insolvent stays away more than 21 days from his place of residence/business, the provisional order can be affixed close to the entrance of the court and by publication in the Government Gazette.

On a natural person-voluntary sequestration: Only the provisional and final order needs to be served and personally.

On a juristic person: At the principal place of business or registered office on a person in charge, on a member or director

S 11(2) (A) (4) of the Insolvency Act requires the sheriff to ascertain whether the insolvent’s employees are unionised and to serve the provisional order upon the union.

Service Rules in the Magistrates’ Court: Rule 9

The rules are listed here below.

The Rules are quoted in bold and in italics.

A summary will be provided at the end of all the rules.

Rule 9 (1):

A party requiring service of any process, notice or other document to be made by the sheriff shall provide the sheriff with the original or a certified copy of such process, notice or document, together with as many copies thereof as there are persons to be served: Provided that the registrar or clerk of the court may, at the written request of the party requiring service, hand such process, notice or document and copies thereof to the sheriff.

Can you serve a faxed summons?

No because this is non- compliance to the rule.

       Rule 9 (2) (a) & (b):

When can a process be served/ executed?

This has already been dealt with at page 58????.

Rule 9 (3):

All process shall, subject to the provisions of this rule, be served upon the person affected thereby by delivery of a copy thereof in one or other of the following manners:

Personal service, agent and how to serve on a person with a legal disability?

(a)To the said person personally or to his or her duly authorized agent: Provided that where such person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator or the like of such minor or person under disability;

Where do you serve? :

 At a Residence or Place of business-

(b)at the residence or place of business of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age and apparently residing or employed there: Provided that for the purpose of this paragraph, when a building, other than an hotel, boarding house, hostel or similar residential building, is occupied by more than one person or family, “residence” or “place of business” means that portion of the building occupied by the person upon whom service is to be effected;

At place of employment-

(c) at the place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age and apparently in authority over him or her or, in the absence of such person in authority, to a person apparently not less than 16 years of age and apparently in charge at his or her place of employment;

At the chosen domicilium-

(d) if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;

How do you serve on a Corporation or company?-

(e) in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there is no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law;

 

Can you serve by registered post?

 

(f) if the plaintiff or his or her authorised agent has given instructions in writing to the sheriff to serve by registered post, the process shall be so served: Provided that a debt counselor who makes a referral to court in terms of section 86(7) (c) or 86(8) (b) of the National Credit Act may cause the referral to be served by registered post or by hand.

 

How do you serve on a Minister, Deputy Minister or Provincial Premier?

 

(g)in the case of a Minister, Deputy Minister or Provincial Premier, in his or her official capacity, the State or provincial administration, at the Office of the State Attorney in Pretoria, or a branch of that Office which serves the area of jurisdiction of the court from which the process has been issued;

 

How do you serve on an Agent or Attorney?

 

(h) to any agent or attorney who is duly authorized in writing to accept service on behalf of the person upon whom service is to be effected in any applicable manner prescribed in this rule.”

 

How do you serve on a Local authority or statutory body?

 

(i)where a local authority or statutory body is to be served, on the town clerk or assistant town clerk or mayor of such local authority or the secretary or similar office  or member of the board or committee of such body, or in any manner provided by law; or

 

How is an application served?

 

(j)where a person to be served with any document initiating application proceedings is already represented by an attorney of record such document may be served upon such attorney by the party initiating the proceedings:

 

This rule applies to service of interlocutory applications between attorneys and does not involve the sheriff.

 

How should the return be completed?

 

Provided that where such service has been effected in the manner prescribed by paragraphs (b), (c), (e), or (g),the sheriff shall indicate in the return of service of the process the name of the person to whom it has been delivered and the capacity in which such person stands in relation to the to the person,with a clear mandate corporation, company, body corporate or institution affected by the process and where such service has been effected in the manner prescribed by paragraphs(b),(c),(d) or (f)

 

It is respectfully submitted that the date & time of service must also be included.

 

Can the court declare a service invalid?

 

the court may, if there is reason to doubt whether the process served has come to the actual knowledge of the person to be served, and in the absence of satisfactory evidence, treat such service as invalid:

 

How do you serve a divorce summons?

 

Provided further that, subject to sub rule (9), service of any process through which a divorce action is instituted shall only be affected by the sheriff on the defendant personally.

 

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  Rule 9 (4):

Must the original /certified copy always be displayed?

In practice you should, but only if the defendant/respondent insists. This rule should be read with R9 (1).

 The sheriff shall, on demand by the person upon or against whom process is served, exhibit to that person the original or certified copy of the process.

 

Make sure the defendant/respondent does not destroy the original. Always retain this in your possession

 

 

 

 

 

 

Must the sheriff explain the nature & contents of the process?

(b) The sheriff or other person serving the process or documents shall explain the nature and contents thereof to the person upon whom service is being affected and shall state in his or her return or affidavit or on the signed receipt whether he or she has done so.”

Rule 9 (5):

How do you serve at a premise that is continually locked?

Where the person to be served keeps his or her residence or place of business closed and thus prevents the sheriff from serving the process, it shall be sufficient service to affix a copy thereof to the outer or principal door or security gate of such residence or place of business or to place such copy in the post box at such residence or place of business.

 

 

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Rule 9 (6):

Can you serve an interpleader summons on a representative attorney?

Service of an interpleader summons where claim is made to any property attached under process of the court may be made upon the attorney, if any, of the party to be served.

Rule 9 (7)

How do you serve the same process on 2 or more persons?

Where two or more persons are to be served with the same process, service shall be affected upon each, except-

Rule 9 (7) (a):

How do you serve on a partnership?

in the case of a partnership, when service may be affected by delivery at the office or place of business of such partnership, or if there be none such, then by service on any member of such partnershipin any manner prescribed in this rule;

 

Rule 9 (7) (b):

How do you serve on a trustees, liquidators, executors, curators, or guardians?

in the case of two or more persons sued in their capacity as trustees of an insolvent estate, liquidators of a company, executors, curators or guardians, when service may be effected by delivery to any one of them in any manner prescribed in this rule;

Rule 9 (7) (c):

How do you serve on a syndicate, unincorporated company, club society, church, public institution or public body?

in the case of a syndicate, unincorporated company, club, society, church, public institution or public body, when service may be effected by delivery at the local office or place of business of such body or, if there be none such, by service on the chairperson or secretary or similar officer thereof in any manner prescribed in this rule.

Rule 9 (8):

45

Service of a subpoena on a witness may be affected at a reasonable time before attendance is required in any manner prescribed in this rule.

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Service Rules not applying to sheriffs.

  • Rule 9 (9)

This rule deals with service between attorneys.

If service cannot be affected within these rules, can the court order another form of service?

  • Rule 9 (10):

Subject to rule 10, where the court is satisfied that service cannot be effected in any manner prescribed in this rule and that the action is within its jurisdiction, it may make an order allowing service to be effected by the person and in the manner specified in such order.

An example of this would be that the sheriff is unable to serve due to a plague at the place of service. The court may authorize a non –sheriff to serve elsewhere.

Where a court date has been specified, how long prior to this date should the process be served?

Rule 9 (11):

 Where service of an ex parte(e.g. pg.37????)order calling upon the respondent to show cause at a time stated or limited in the order or of an interpleader summons (e.g.pg.37) is to be effected upon any party, service of such ex parte order or interpleader summons shall be effected-

Rule 9 (11) (a):

in the case where the party to be so served is the State, at least 20 days; (30 ordinary days)

Rule 9 (11) (b):

in the case where any other party is to be served, at least 10 days,( 15 ordinary days) before the time specified in such ex parte order or interpleader summons for the appearance of such party.

Rule 9 (12):

Except where otherwise provided, notice of any application to the court shall be served-

Rule 9 (12) (a):

in the case where the party to be served is the State or a servant of the State in his or her official capacity, at least 20 days;

Rule 9 (12) (b):

in the case of any other party, at least 10 days, before the day appointed for the hearing of the application, but the court may on cause shown reduce such period.

Rule 9 (13) (a):

How do you serve by registered post?

Unless otherwise provided, where service of process may be effected by registered post such service shall be effected by the sheriff placing a copy thereof in an envelope, addressing and posting it by pre-paid registered letter to the address of the party to be served and making application at the time of registration for an acknowledgment by the addressee of the receipt thereof as provided in regulation 44(5) of the regulations published under Government Notice R. 550 of 14 April 1960.

The regulation refers to a registered slip.

Rule (9) (13) (b):

A receipt form completed as provided in regulation 44(8) of the said regulations shall be a sufficient acknowledgment of receipt for the purposes hereof.

The regulation refers to the pink AR card.

Rule (9) (13)(c):

If no such acknowledgment be received the sheriff shall state the fact in his or her return of service of the process.

This mode of service presents a litany of problems. In practice it, at times, takes several months before the registered post is returned as unclaimed. Whist the legal requirement may be fulfilled; one can see the practical difficulty. Can it therefore be said that the defendant has been notified? This is the reasons why sheriffs are not keen in rendering service under this sub rule. It is impractical. However where a sheriff is instructed to serve under this sub rule he has no discretion but to do so.
46

 

Rule 9 (13) (d) :

Every such letter shall have on the envelope a printed or typewritten notice in the following terms:

“This letter must not be readdressed. If delivery is not affected before         20        , this letter must be delivered to the Sheriff of the Magistrate’s Court at        “.

 

 

 

The sub rule makes no provisions for the number of days for returning the letter if not delivered. In practice sheriffs would give an ordinary 21 day period of grace.

We look at 3 scenarios here:

Scenario 1:

The RA card is returned within 21 days. A return of service is rendered and the date of service is reflected on the AR Card.

Scenario 2:

The letter is returned undelivered within the 21 days. A return of non-service is rendered.

Scenario 3:

Nothing is returned within 21 days. A return of non-service is rendered with the remark that no information is forthcoming from the postmaster.

How is service affected in a foreign jurisdiction?

This rule does not affect the local sheriff. See

Rule 9 (14) (15)(16)(17) and (18).

Rule 9 (19):

If a process has been issued in Cape Town and served in Johannesburg is it necessary to authenticate the sheriff’s signature?

Whenever any process has been served within the Republic by a sheriff outside the jurisdiction of the court from which it was issued, the signature of such sheriff upon the return of service shall not require authentication by the sheriff.

Can the Court order anything else beyond these rules to ensure effective service?

Rule 9 (20):

Whenever the court is not satisfied as to the effectiveness of the service, it may order such further steps to be taken as it deems fit.

How do you serve on a foreign process in the Republic of South Africa?

Rule 9 (21)

Whenever a request for the service on a person in the Republic of any civil process or citation is received from a State, territory or court outside the Republic and is transmitted to the registrar or clerk of the court, as the case may be, in terms of any applicable law, the registrar or clerk shall transmit to the sheriff or any person appointed by a magistrate of the court concerned for service of such process or citation-

(a) two copies of the process or citation to be served; and

(b) two copies of a translation in English of such process or citation if the original is in any other language.”

Rule 9(22):

Service under sub rule (21) shall be effected by delivering to the person to be served one copy of the process or citation to be served and one copy of the translation, if any, thereof in accordance with this rule

Rule9 (23)

After service has been effected as provided in sub rule (22) the sheriff or the person appointed for the service of such process or citation shall return to the registrar or the clerk of court concerned one copy of the process or citation together with-

(a) proof of service, which shall be by affidavit made before a magistrate, justice of the peace or commissioner of oaths by the person by whom service has been effected and verified, in the case of service by the sheriff, by the certificate and seal of office of such sheriff or, in the case of service by a person appointed by the magistrate of the court concerned, by the certificate and seal of office of the registrar or clerk of the court concerned; and

(b) particulars of charges for the cost of effecting such service.

Rule 9 (24):

The particulars of charges for the cost of effecting service under sub rule (21) shall be submitted to the taxing officer of the court concerned, who shall certify the correctness of such charges or other amount payable for the cost of effecting service.

General Comment:

It should be noted that even though Rule 9 deals with service in the Magistrates’ Court provisions for service of foreign documents are made within this Rule for the High Court. So where a foreign document received from the Registrar is served by the sheriff, reliance should be placed on these rules.

 Rule9 (25) (a), (b) & (c):

The registrar or clerk of the court concerned shall, after effect has been given to any request for service of civil process or citation, return to the Director-General of Justice-

(a) the request for service referred to in sub rule (21);

(b)the proof of service together with a certificate in accordance with Form 46 of Annexure 1 duly sealed with the seal of the court concerned for use out of the jurisdiction; and

(c) the particulars of charges for the cost of effecting service, and the certificate, or copy thereof, certifying the correctness of such charges.

General Comments:

The very same rule for service shall apply for the Small Claims Court, the Regional Courts and the Central Divorce Courts. Please note that the Small Claims Court has its own tariffs for service whilst the other court’s tariffs are the same as the Magistrate Court’s tariffs.

Summary of some pertinent points of Rule 9

Rule 9(3) (a) provides for personal service and service on a duly authorised agent. In case of minors and persons under disability it provides for service on guardians, tutors, curators.

Service may be affected on a person’s residence or place of business on a person who is apparently   not less than 16 years old and apparently residing or employed there – r9(3)(b).

 

Service on a place of employment – r9(3)(c) ‐ can be effected on a person who is apparently not less than 16 years old and who apparently has authority over the defendant.

 

Rule 9(3) (d) provides for service at a chosen domicilium citandi, but the proviso to the rule allows the court to treat such service as invalid, if it becomes aware that the service has not come to the knowledge of the person who must be served.  The plaintiff can dispute effective service. The court may exercise similar powers in terms of service affected under sub rules 9(3) (b), (c) and (f).

 

The reference to juristic persons in rule 9(3)(e) makes provision for service on a corporation at its registered office is included, on a responsible employee or by affixing to the main door, or in any manner provided by law.

Rule 9(3) (f) allows a sheriff to serve by registered post when so instructed. He should place a copy in a pre‐paid, addressed and registered envelope. The proviso enables a debt counsellor who makes a referral to court in terms of s 86(7)(c) of the National Credit Act to cause the referral to be sent by registered post or by hand.

 

Service upon state organs and officials, this includes provincial premiers – r9(3)(g).Service affected on state attorney’s office in Pretoria or a branch of the office that serves the area of jurisdiction of the court from which the process has been issued. The name of person served and capacity must be stated in the return of service.

 

In the case of service in terms of sub rules 9(3) (b), (c), (e) or (g) the sheriff will indicate on the return of service the name and capacity of such person in relation to the defendant.

 

Where a person keeps his residence or place of business closed preventing service, process can be affixed on the outer or principal door or security gate or post box of such residence or place of business – rule 9(5). In such an instance it is necessary for the sheriff to state what inquiry and investigation was conducted to ascertain that the defendant still resided or conducted business at the given address.

 

Service on partnership – r9 (7) (a) at office or place of business of partnership, if none than upon any member of the partnership.

 

Service on trustees of insolvent estates, liquidators of companies, executors, curators, or guardians are to be served in accordance with any manner prescribed in the rules. ‐ r9 (7) (b).

 

Service upon syndicates, unincorporated companies, clubs, societies, churches public institutions, or public bodies must be affected upon its local office or place of business. If there is none, service must be effected on the chairperson or secretary or similar officer in a manner prescribed in the rules‐ r9 (7) (c).

 

Rule 9(9) provides that service of any notice, request, statement or other document which is not a process of court, such as a notice of intention to defend or pleadings need not be served by the sheriff. It can be affected by delivery of hand or by registered post. The new rules now provide for service by facsimile or email. Where service by fax or e‐mail is used, chapter 111, part 2 of the Electronic Communications and Transactions Act 25 of 2002 will be applicable.

 

Subject to rule 10 where the court having jurisdiction is satisfied that service cannot be affected in terms of rule 9, it may make an order allowing a person other than a sheriffto affect such service in a manner specified in such order. In a divorce action service must be personally on the defendant.

 

 

Chapter 3: Execution:

 

After the summonses have been served, and once judgment is obtained, a warrant of execution (Magistrate Court) or a writ (High Court) is issued and handed to the sheriff.

 

General Comments:

 

The writ/ warrant form the most vital part in the judicial process for the purposes of recovery. It usually takes a great amount of time, effort and costs for the plaintiff (execution creditor) to achieve the judgment. It is now up to the sheriff to recover all that the execution creditor is entitled to. This would include the following:

 

Capital: i.e.  The initial amount claimed.

 

Interest: This is usually calculated from the Day of Judgment to the day of payment both days inclusive.

 

Costs:These legal costs are usually taxed by the taxing master and included in the writ.

 

All three items are to be added to arrive at the total amount recoverable.

 

Once the writ/ warrant have been registered, the deputy needs to execute.

 

What is meant by Execution?

 

Execution includes the following:

 

The deputy needs, first and foremost, after introducing himself, to demand payment from the defendant (execution debtor) or any person present, of the full amount as calculated from the writ/ warrant. If full payment is made, that would settle the matter. Should no demand, be made the attachment would be considered irregular and may be set aside.

 

Once payment has been made the sheriff will deposit such amount into his trust account, deduct his costs and pay the remaining proceeds to his instructor.

 

If the execution debtor or any person present is unable to pay the amount demanded, the deputy should then demand the execution debtor or any person present to point out any movable assets of the defendant. The deputy is also entitled to search for other assets. If there are sufficient assets pointed out to satisfy the debt, the deputy must inventories these items. In other words the movables have been attached. What this means is that all assets so attached, cannot be removed, sold, leased, or diminished in value by any party whatsoever in any manner whatsoever until the attachment has been released. Should any party do so, this is a contravention.

 

Once the goods have been inventorised, depending on the instructions or any endorsement on the warrant for an immediate removal, the movables will then be removed to a place of safety (usually the sheriffs store rooms) and will remain there until auctioned in a sale in execution. The sheriff will deposit the sale proceeds into his trust account, deduct his costs, and pay over the balance to his instructor after drawing up a distribution account. This account reflects all income and deductions.

 

In essence, execution means the demanding of payment as per the writ/warrant, the searching and inventorising of assets, the removal and safekeeping of such assets, the judicial sale (auction) thereof, the payment of the proceeds of the execution sale and the upliftments of, the writ/warrant. The procedure is completed upon delivery of the movable or transfer of the immovable and the payment thereof.

 

It should be noted that the procedure in respect of a writ/warrant differs from court to court and from the nature of the writ.

 

It should also be noted that it is possible for the execution debtor to settle the writ/ warrant with costs at any time before the execution sale. Should the amount be paid in full the writ/warrant must be uplifted.

 

What is the difference between a writ and a warrant?

 

A writ is issued from the High Court. A warrant is issued from the Magistrates’ Court.

The writ authorises an immediate removal. A warrant does, not unless so endorsed.

An inventory on a writ must be typed. An inventory on a warrant may be hand written.

It is possible to issue as many writs as is necessary. You can only issue 1 warrant and have this re- issued.

 

Let us first deal with a High Court writ: (Movables)

 

This is dealt with under Rule 45 of the High Court Rules. Please refer to F3/1 which is a complete file of a movable attachment.

 

It is important to note the following:

 

1. The writ/warrant must be issued.

 

The writ must comply as close as possible with form 18 of the second schedule of the High Court Rules.

 

Let us now deal with the Rule 45.

 

Rule 45 (1):

 

How do you issue a writ?

 

“The party in whose favour any judgment of the court has been pronounced may, at his own risk, sue out of the office of the registrar one or more writs for execution thereof as near as may be in accordance with Form 18 of the First Schedule: Provided that, except where immovable property has been specially declared executable by the court or, in the case of a judgment granted in terms of rule 31 (5) by the registrar, no such process shall issue against the immovable property of any person until a return shall have been made of any process which may have been issued against his movable property, and the registrar perceives there from that the said person has not sufficient movable property to satisfy the writ.”

 

Rule 45 (2):

 

How are costs calculated?

 

“No process of execution shall issue for the levying and raising of any costs awarded by the court to any party, until they have been taxed by the taxing master or agreed to in writing by the party concerned in a fixed sum: Provided that it shall be competent to include in a writ of execution a claim for specified costs already awarded to the judgment creditor but not then taxed, subject to due taxation thereafter, provided further that if such costs shall not have been taxed and the original bill of costs, duly allocated, not lodged with the sheriff before the day of the sale, such costs shall be excluded from his account and plan of distribution.”

 

Rule 45 (3) (a), (b) & (c):

 

How do you attach a movable?

 

“Whenever by any process of the court the sheriff is commanded to levy and raise any sum of money upon the goods of any person, he shall forthwith himself or by his assistant proceed to the dwelling- house or place of employment or business of such person (unless the judgment creditor shall give different instructions regarding the situation of the assets to be attached) and there

 

a)demand satisfaction of the writ and failing satisfaction,

 

b)demand that so much movable and disposable property be pointed out as he may deem sufficient to satisfy the said writ, and failing such pointing out,

 

c)search for property.

 

Any such property shall be immediately inventoried and, unless the execution creditor shall otherwise have directed, and subject to the provisions of sub-rule (5), shall be taken into the custody of the sheriff.”

 

Rule 45 (3) (c) (i):

 

What if there is a claim by another party on the attached goods? What should the Plaintiff do?

 

(i)                            “Provided- that if there is any claim made by any person to any such property seized or about to be seized by the sheriff, then, if the plaintiff gives the sheriff an indemnity to his satisfaction to save him harmless from any loss or damage by reason of the seizure thereof, the sheriff shall retain or shall seize, as the case may be, make an inventory of and keep the said property; and.”

 

What if the execution debtor was not present at the time of demand?

 

(i)                 “That if satisfaction of the writ was not demanded from the judgment debtor personally, the sheriff shall give to the judgment debtor written notice of the attachment and a copy of the inventory made by him, unless his whereabouts are unknown.”

 

Rule 45 (4):

 

What must be done with the warrant and writ?

 

“The sheriff shall file with the registrar any process with a return of what he has done thereon, and shall furnish a copy of such return and inventory to the party who caused such process to be issued.”

 

Rule 45 (5):

 

Must the attached assets be immediately removed?

 

“Where any movable property has been attached by the sheriff, the person whose property has been so attached may, together with some person of sufficient means as surety to the satisfaction of the sheriff, undertake in writing that such property shall be produced on the day appointed for the sale thereof, unless the said attachment shall sooner have been legally removed, whereupon the sheriff shall leave the said property attached and inventoried on the premises where it is found. The deed of suretyship shall be as near as may be in accordance with Form 19 of the First Schedule hereto.”

 

Rule 45 (6):

 

What if there is no deed of suretyship available?

 

“If the judgment debtor does not, together with a surety, give an undertaking as aforesaid, then unless the execution creditor otherwise directs, the sheriff shall remove the said goods to some convenient place of security or keep possession thereof on the premises where they were seized, the expense whereof shall be recoverable from the judgment debtor and defrayed out of levy.”

 

Rule 45 (7): (a)

 

After the goods have been removed what needs to be done?

 

 (a)”Where any movable property is attached as aforesaid the sheriff shall where practicable and subject to rule 58(INTERPLEADER) sell it by public auction to the highest bidder after due advertisement  by the execution creditor in a newspaper circulating in the district in which the property has been attached and after the expiration of not less than 15 days from the time of seizure thereof.”

 

What if the goods are perishables?

 

Rule 45 (7) continued:

 

(b)”Where perishables are attached as aforesaid, they may with the consent of the execution debtor or upon the execution creditor indemnifying the sheriff against any claim for damages which may arise from such sale, be sold immediately by the sheriff concerned in such manner as seems expedient.”

 

What if there is another warrant ito Section 3(2)(b)?

 

(c)”the sheriff shall not later than 15 days before the date of sale either in terms of paragraph (a) or paragraph (b,) forward a notice of sale to all other Sheriffs appointed in that area.”

 

Rule 45 (8):

 

How do you attach an incorporeal i.e. property with no physical form?

 

“If incorporeal property whether movable or immovable, is available for attachment, it may be attached without the necessity of a prior application to court in the manner hereinafter provided: “

 

Examples of these are the income derived from a lease, the shares of a company, the right to take ownership of a vehicle subject to a credit agreement after the outstanding balance has been settled and copyright.

 

REFER TO F3/2 FOR AN EXAMPLE OF INCOPOREAL ATTACHMENT.

 

Rule 45 (8) (a):

 

How do you attach a lease, bill of exchange promissory note bond or other security?

 

“Where the property or right to be attached is a lease or a bill of exchange, promissory note, bond or other security for the payment of money, the attachment shall be complete only when:-

 

(i)                            Notice has been given by the sheriff to the lessor and lessee, mortgagor and mortgagee or person liable on the bill of exchange or promissory note or security as the case may be, and

 

(ii)                          The sheriff shall have taken possession of the writing (if any) evidencing the lease, or of the bill of exchange or promissory note, bond or other security as the case may be, and

 

(iii)                        In the case of a registered lease or any registered right, notice has been given to the registrar of deeds.”

 

Rule 45 (8) (b):

 

How do you attach the execution debtor’s interest in property pledged, leased or sold?

 

“Where movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under a suspensive condition to or by a third person, the attachment shall be complete only when the sheriff has served on the execution debtor and on the third person notice of the attachment with a copy of the warrant of execution. The sheriff may upon exhibiting the original of such warrant of execution to the pledgee, lessor, lessee, purchaser or seller enter upon the premises where such property is and makes an inventory and valuation of the said interest.”

 

Rule 45 8 (c):

 

When is the attachment complete?

 

“In the case of the attachment of all other incorporeal property or incorporeal rights in property as aforesaid

 

(i)the attachment shall only be complete when

 

(a)notice of the attachment has been given in writing by the sheriff to all interested parties and where the asset consists of incorporeal immovable property or an incorporeal right in immovable property, notice shall also have been given to the registrar of deeds in whose deeds registry the property or right is registered, and

 

(b)the sheriff shall have taken possession of the writing or document evidencing the ownership of such property or right, or shall have certified that he has been unable, despite diligent search, to obtain possession of the writing or document;

 

(ii)the sheriff may upon exhibiting the original of the warrant of execution to the person having possession of property in which corporeal rights exist, enter upon the premises where such property is and make an inventory and valuation of the right attached.”

 

Rule 45 (9):

 

How do you attach a lien i.e. someone else’s property in which expense or labour has been incurred e.g. builders lien on an immovable?

 

“Attachment of property subject to a lien shall be effected mutatis mutandis in accordance with the provisions of sub- paragraph (b) of sub – rule (8).”

 

Rule 45 (10):

 

Is a third parties right to ownership protected?

 

“Where property subject to a real right of any third person is sold in execution such sale shall be subject to the rights of such third person unless he otherwise agrees.”

 

Rule 45 (11) (a)(i):

 

How would participating writs share in the sale proceeds?

 

(i) “Subject to any hypothec existing prior to the attachment, all writs of execution lodged with any sheriff appointed for a particular area or any other Sheriff before or on the day of the sale in execution shall rank pro rata in the distribution of proceeds of the goods sold, in the order of preference referred to in paragraph (c) of sub- rule (14) of rule 46.”

 

(ii)”the Sheriff conducting the sale in execution shall not less than 10 days prior to the date of sale forward a copy of the notice of sale to all other Sheriffs appointed in the district in which he or she has been instructed to conduct a sale in respect of the attached goods.”

 

What if there is another warrant ito 3(2)(b)?

 

(iii)”the sheriff conducting the sale shall accept from all other sheriffs appointed on that district or any other sheriff a certificate listing any attachment that has been made and showing the ranking of creditors in terms of warrants in the possession of those sheriffs.”

 

This rule deals with how the sheriff should distribute if there is more than one claim and if there is a surplus. A hypothec is the preferent right a lessor has in respect of the recovery of his rental from the lessee. The lessor would be able to recover his debt before all other debts are satisfied. Another e.g. of a hypothec is a notarial bond (a bond over a movable). E.g. a bank would place a hypothec to secure its finances for machinery by registering a notarial bond over that machinery.  Each creditor is paid pro rata i.e. the ratio of the principle debt against the total proceeds received. E.g. of this:

 

Execution debtor A is owed     R500.00

Execution debtor B is owed      R700.00

Execution debtor C is owed      R800.00

Total Debt                                 R 2000.00

 

The total amount realized (after costs) is R1 000.00. Therefore each execution debtor would receive 50% of the debt, i.e.

Execution Debtor A would receive   R250.00

Execution Debtor B would receive   R350.00

Execution Debtor C would receive  R400.00

Total:                                                     R1 000.00

 

A more complicated e.g.

Execution Debtor A is owed       R7321.40

Execution Debtor B is owed        R 346.33

Execution Debtor C is owed       R4381.70

Total                                              R12049.43

 

The Execution realizes the sum of R9176.62 after deductions

 

Debtor A is entitled to:          7321.40 X 91762 =   R5 574.84

12049.43

Debtor B is entitled to346.33 x 91762   =               R 263.76

12049.43

Debtor C is entitled to: 4381.70 x 9176.62 =            R3 337.02

 

12049.93

 

Total:                                                                            R9176.62

 

 

 

Rule 45 (11) (b):

 

What should the sheriff do with any surplus funds after payment? What happens to the costs disallowed by taxation?

 

“If there should remain any surplus, the sheriff shall pay it over to the judgment debtor, and the sheriff shall make out and deliver to him an exact account, in writing of his costs and charges of the execution and sale, which shall be liable to taxation upon application by the judgment debtor, and if upon taxation any sum shall be disallowed, the sheriff shall refund such sum to the judgment debtor”.

 

Rule 45 (12) (a):

 

How do you attach a debt in favour of the execution debtor?

 

“Whenever it is brought to the knowledge of the sheriff that there are debts which are subject to attachment, and are owing or accruing from a third person to the judgment debtor, the sheriff may, if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such third person, hereinafter called the garnishee, requiring payment by him to the sheriff of so much of the debt as may be sufficient to satisfy the writ, and the sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro tanto(paid in full), of the debt attached.”

 

Please refer to form F3/3 as an example of the attachment

 

 

Rule 45 (12) (b):

 

What if the Garnishee refuses to pay over to the sheriff?

 

“In the event of the garnishee refusing or neglecting to comply with any such notice, the sheriff shall forthwith notify the judgment creditor and the judgment creditor may call upon the garnishee to appear before the court to show cause why he should not pay to the sheriff the debt due, or so much thereof as may be sufficient to satisfy the writ, and if the garnishee does not dispute the debt due, or claimed to be due by him to the party against whom execution is issued, or he does not appear to answer to such notice, then the court may order execution to issue, and it may issue accordingly, without any previous writ or process, for the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the writ.”

 

 

Rule 45 (12) (c):

 

What are the Court’s options in determining the garnishee’s liability?

 

“If the garnishee disputes his liability in part, the court may order execution to issue in respect of so much as may be admitted, but if none be admitted then the court may order that any issue or question necessary for determining the garnishee’s liability be tried or determined in any manner mutatis mutandis in which any issue or question in any action may be tried or determined, or the court may make any such other order in the premises as may be just.”

 

Rule 45 (12) (d):

 

Are third parties claims against the garnishee protected?

 

“Nothing in these rules as to the attachment of debts in the hands of a garnishee shall affect any cession, preference, or retention claimed by any third person in respect of such debts.”

 

What about costs?

 

Rule 45 (12) (e):

 

“The costs connected with any application for the attachment of debts, and the proceedings arising from or incidental thereto, shall be in the discretion of the court.”

 

Rule 45 (12) (f):

 

What happens where the costs for implementing 45(12) (b) hereabove will exceed the debt?

 

“Where the sheriff is of opinion that applications to the court or orders with respect to a garnishee will probably cost more than the amount to be recovered thereunder, he may sell such debts, after attachment, by auction, in the same way as any other movable property, or may cede the same at the nominal amount thereof to the judgment creditor with his consent.”

 

Rule 45 (12) (g):

 

What if payment is made in full?

 

“Payment of the amount due under and in respect of any writ, and all costs and the like, incidental thereto, shall entitle the person paying to a withdrawal thereof.”

 

Rule 45 (13):

 

Can a sheriff or his representative purchase anything in his sale in execution?

 

“Neither a sheriff nor any person on behalf of the sheriff shall at any sale in execution purchase any of the property offered for sale either for himself or for any other person.”

 

azp81

 

Rule 45A:

 

“The court may suspend the execution of any order for such period as it may deem fit.”

 

This is self-explanatory.

 

The above dealt with movable attachments of the High Court. The same rules would apply for the attachment of movables in the Labour Court.

 

 

High Court Immovable Attachments:

 

This is dealt with by Rule 46 of the High Court Rules.

 

What is an immovable?

 

Very broadly speaking a movable is any item that can be moved e.g. Furniture. An immovable is fixed property which cannot be moved. This is land and any building improvements thereon.

Rule 46:

 

We will approach this from a practical point of view.

 

Here are the contents of a file from the warrant of execution to the distribution account. (Form 3/4)

 

After having read through this we deal more specifically with the rules.

 

Rule 46 (1):

 

What must the writ contain?

 

“A writ of execution against immovable property shall contain a full description of the nature and situation (including the address) of the immovable property to enable it to be traced and identified by the sheriff; and shall be accompanied by sufficient information to enable him to give effect to sub- rule (3) hereof.”

 

Rule 46 (2):

 

Which Sheriff should attend to the attachment?

 

“An attachment shall be made by any sheriff of the district in which the property is situate or by any sheriff of the district in which the office of the registrar of deeds or other officer charged with the registration of such property is situate, upon a writ corresponding substantially with Form 20 of the First Schedule.”

 

The attachment must be made by the sheriff within whose jurisdiction the immovable is (sheriff A) or by the sheriff within whose jurisdiction the deeds office lies where that immovable has been registered (Sheriff B). This has caused much controversy. The practice differs from Province to

 

Which is preferable? It is respectfully submitted that sheriff A should deal with the attachment. The reasons are that the sheriff is fully familiar with his area, is able to provide a better description of the immovable, hence be in a better position to provide a value. This sheriff needs to also serve the notice of attachment on the owner and where applicable on the occupiers. Sheriff B, not being within the jurisdiction would not have the above advantage. Finally, it is not good practice to split the functionaries (sheriffs who need to perform specific duties). Who should assume the risk if any error has been committed during the attachment? Sheriff B who has attached, or sheriff A who has sold?

 

The writ must be as close as possible to Form 20 of the Rules.

 

Rule 46 (3)(a):

 

On whom must the notice of attachment be served? (See form 24 hereabove for an example of the notice of attachment)

 

(a)“The mode of attachment of immovable property shall be by notice in writing by the sheriff served upon the owner thereof, and upon the registrar of deeds or other officer charged with the registration of such immovable property, and if the property is in the occupation of some person other than the owner, also upon such occupier.

 

(b)”Any such notice as aforesaid shall be served according to the provisions of Rule 4.”

 

Rule 46 (4) (a):

 

Where should the Immovable be sold?

 

(a)“After attachment, any sale in execution shall take place in the district in which the attached property is situate and be conducted by the sheriff of such district who first attached the property: Provided that the sheriff in the first instance and subject to the provisions of paragraph (b) of sub- rule (8) may on good cause shown authorize such sale to be conducted elsewhere and by another sheriff.

 

What about bonds and other incumbencies on the immovable:

 

(b)Upon receipt of written instructions from the execution creditor to proceed with such sale, the sheriff shall ascertain and record what bonds or other encumbrances are registered against the property together with the names and addresses of the persons in whose favour such bonds and encumbrances are so registered and shall thereupon notify the execution creditor accordingly.”

 

Rule 46 (5) (a):

 

Must preferent creditors also be notified?

 

“No immovable property which is subject to any claim preferent to that of the execution creditor shall be sold in execution unless:-

 

(a)   the execution creditor has caused notice, in writing, of the intended sale to be served   by registered post upon the preferent creditor, if his address is unknown and, if the property is rateable, upon the local authority concerned calling upon them to stipulate within ten days of a due date to be stated a reasonable reserve price or to agree in writing to a sale without reserve, and has provided proof to the sheriff that the preferent creditor has so stipulated or agreed, or

 

Rule 46 (5):

 

(b) the sheriff is satisfied that it is impossible to notify any preferent creditor, in terms of this rule, of the proposed sale, or such creditor, having been notified, has failed or neglected to stipulate a reserve price or to agree in writing to a sale without reserve as provided for in paragraph (a) of this sub- rule within the time stated in such notice.”

 

Rule 46 (6):

 

Can the sheriff demand any document relating to the immovable?

 

“The sheriff may by notice served upon any person require him to deliver up to him forthwith all documents in his possession or control relating to the debtor’s title to the said property.”

This empowers the sheriff to demand the title deed of the immovable. In practice this deed should normally be in possession of the first bond holder. Sheriffs are often required to sign form F 3/5 even though the deed in question should be in possession of the execution creditor bank

 

Rule 46 (7) (a):

 

Who appoints the date, time and place for the sale?

 

(a)“The sheriff conducting the sale shall appoint a day and place for the sale of such property, such day being, except by special leave of a magistrate, not less than one month after service of the notice of attachment and shall forthwith inform all other sheriffs appointed in the district of such day and place.”

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Rule 46 (7) (b):

 

Who prepares the notice of sale and what are its contents?

 

(b)“The execution creditor shall, after consultation with the sheriff conducting the sale, prepare a notice of sale containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that the conditions may be inspected at the office of the sheriff conducting the sale, and he or she shall furnish the said sheriff with as many copies of the notice as the latter may require.”

 

It is therefore imperative for the sheriff to familiarize himself with the improvements to the immovable, the usage of the immovable (business or residence) and the physical address. In other words the sheriff must do all within his powers to enhance the virtues of the immovable in order to obtain the best price.

 

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The conditions F3/6 is the only set of conditions you should allow your instructor to furnish you with.

 

Conditions:

You may note that these conditions differ materially from 21 of the Rules. Why is this so? On the one hand it is argued that the Form 21 cannot be altered. However laws relating to terms that must be placed in any deed of sale or offer to purchase, have been created by the Consumer Protection Act, the National Credit Act and FICA amongst others and this necessitates the conditions to be amended. The difficulty is that the conditions as formulated in Form 21 violates, by its absence, the new provisions brought about by these Acts. A consultative process has been set up between the profession and the banks in drawing up the new conditions. These conditions have been forwarded to the Rules Board for the necessary amendments. In the mean time, for the reason set out here above, it is suggested that the only set of conditions to be used is the one referred to. Please note that amendments to Rule 46 is presently at the Rules Board. Also be wary that the banks are not allowed to set off the purchase price if the bank is the purchaser.

 

Rule 46 (7) (c):

 

When and where should the publication take place?

 

(c)“The execution creditor shall publish the notice once in a newspaper circulating in the district in which the immovable property is situate and in the Government Gazette  not less than  5 days and not more than 15 days before the date of sale and provide the sheriff conducting the sale, by hand or facsimile, with one photocopy of each of the notices published in the newspaper and Government Gazette , respectively, or in the case of  the Government Gazette, the number of the Government Gazette  in which the notice was published.”

 

Rule 46 (7) (d):

 

What are the time periods for the sale notices to be served on the execution creditors?

 

(d)“Not less than 10 days prior to the date of the sale, the sheriff conducting the sale shall forward by registered post a copy of the notice of sale referred to in paragraph (b) above to every judgment/execution creditor who had caused the said immovable property to be attached and to every mortgagee thereof whose address is known and simultaneously furnish a copy of the notice of sale to all other sheriffs appointed in that district.”

 

Rule 46 (7) (e):

 

When and where must the notice of sale be displayed?

 

(e)“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 is 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.”

 

 

Rule 46 (8) (a) (i):

 

When must the conditions of sale reach the offices of the Sheriff?

 

(a)(i)“The conditions of sale shall, not less than 20 days prior to the date of the sale, be prepared by the execution creditor as near corresponding substantially  with Form 21 of the First Schedule, and the said conditions shall be submitted to the sheriff conducting the sale to settle them.

 

How many copies of the condition of sale should the sheriff receive?

 

(ii)The execution creditor shall thereafter supply the said sheriff with 2 copies of the conditions of sale, one of which shall lie for inspection by interested parties at his or her office and the sheriff conducting the sale shall forthwith furnish a copy of the conditions of sale to all other sheriffs appointed in that district.”

 

 48

 

 

 

Rule 46 (8) (b):

 

Who should make the objection and when should this be done?

 

“Any interested party may, not less than 10 days prior to the date of the sale, upon twenty- four hours’ notice to the execution creditor and the bond- holders apply to the magistrate of the district in which the property is to be sold for any modification of the conditions of sale and the magistrate may make such order thereon, including an order as to costs, as to him may seem meet.”

 

Rule 46 (9):

 

Who appoints the conveyancer?

 

“The execution creditor may appoint an attorney to attend to the transfer of the property when sold in execution.”

 

Rule 46 (10):

 

Who should the property be sold by and in what manner?

 

“Immovable property attached in execution shall be sold by the sheriff by public auction.”

 

What is a public auction? This will be dealt with at page 119.

 

Rule 46 (11) (a):

 

What happens if the purchaser fails to comply with any of the terms of the conditions?

 

Please refer to form F3/7 for an example of a sale cancellation.

 

(a)“If the purchaser fails to carry out any of his or her obligations under the conditions of sale, the sale may be cancelled by a judge summarily on the report of the sheriff conducting the sale after due notice to the purchaser, and the property may again be put up for sale.

 

Who will be responsible for the loss (if any)?

 

(b)The purchaser shall be responsible for any loss sustained by reason of his default, which loss may, on the application of any aggrieved creditor whose name appears on the said sheriff’s distribution account, be recovered from him or her under judgment of the judge pronounced summarily on a written report by the said sheriff, after such purchaser shall have received notice in writing that such report will be laid before the judge for such purpose.

 

What happens if the purchase is the occupier before transfer?

 

(c)If such purchaser is already in possession of the property, the said sheriff may, on 10 days notice, apply to a judge for an order ejecting him or her or any person claiming to hold under him or her there from.”

 

Rule 46 (12):

 

Must the sale be without a reserve price?

 

“Subject to the provisions of sub- rule (5), the sale shall be without reserve and upon the conditions stipulated under sub-rule (8), and the property shall be sold to the highest bidder.”

 

Rule 46 (13):

 

Who shall give transfer on behalf of the execution debtor?

 

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

 

This sub- rule empowers the sheriff to effect transfer. The sheriff steps into the shoes of the seller, in a manner of speaking. In effect, the sheriff exercises his executive authority in effecting transfer and as long as the sheriff is exercising his executive authority under these rules, save by the way of a court order, the transfer cannot be stopped.

 

Rule 46 (14) (a):

 

Under what terms is the sheriff to pay? What if there is another writ ito of S3(2)(b)?

 

(a)“The sheriff conducting the sale shall not pay out to the creditor the purchase money until transfer has been given to the purchaser, but upon receipt thereof he or she shall forthwith pay into the deposit account of the magistrate of the district all moneys received in respect of the purchase price and simultaneously inform all other sheriffs appointed in that district of such payment.”

 

There is a patent conflict of law regarding this sub- rule. In terms of Section 22 of the Sherriff’s Act, every sheriff is required to open and operate a trust account. In practice, in most provinces, once the distribution account is acceptable, payment is made directly by the sheriff into the execution debtor’s bond account and not to the magistrate. The rule is presently being reviewed by the Rules Board.

 

Rule 46 (14) (b):

 

What happens immediately after the sale?

 

“The said sheriff shall as soon as possible after the sale prepare in order of preference, as hereinafter provided, a plan of distribution of the proceeds and shall forward a copy of such plan to the registrar of the court and to all other sheriffs appointed in that district. Immediately thereafter the said sheriff shall give notice by registered post to all parties who have lodged writs and to the execution debtor that the plan will lie for inspection for 15 days from a date mentioned at his or her office and at the office of the registrar, and unless such parties shall signify, in writing, their agreement to the plan such plan shall so lie for inspection.”

 

Again this is a provision that is not applied in practice.

 

  • Again this is a provision that is not applied in practice. Once the distribution account is acceptable to the execution creditor, payment is made directly into the execution debtor’s bond account.

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Rule 46 (14) (c):

 

What is the order of preference?

 

“After deduction from the proceeds of the costs and charges of execution, the following shall be the order of preference:”

 

Rule 46 (14) (c) (i):

 

(i)      “the claims of preferent creditors ranking in priority in their legal order of preference, and thereafter.”

 

This rule states that payment must be made in order of preference, in other words preferent creditors (e.g. bond holder) must be made before ordinary creditors. E.g. A obtains judgment against B and instructs the sheriff to sell B’s immovable. C is the bond holder. The property is sold for R100 000.00. A owes B R100 000.00. B owes C R80 000.00. The first R80 000.00 is paid to C (the preferent creditor), and the remaining R20 000.00 is paid to B. Assume the property was sold for R60 000.00, the full amount would be paid to C. (This is, of course, subject of C approving the sale in the first instance).

 

 Rule 46 (14) (c) (ii):

 

 

 

(i)                 “the claims of other creditors whose writs have been lodged with the sheriff in the order of preference appearing from sections ninety- six and ninety- nine to one hundred and three (inclusive) of the Insolvency Act, 1936 (Act No. 24 of 1936) as amended.”

 

Rule 46 (14) (d):

 

What is the time period of objection to the plan of distribution?

 

“Any interested person objecting to such plan shall, within five days of the expiry of the period referred to in paragraph (b) of this sub- rule give notice in writing to the sheriff and all other interested persons of the particulars of his objection and shall bring such objection before a judge for review on 10 days’ notice to the sheriff and the said persons.”

 

Rule 46 (14) (e):

 

In the event of a review what will a judge determine?

 

“The judge on review shall hear and determine the matter in dispute and may amend or confirm the plan of distribution or make such order including an order as to costs as to him seems met.”

 

Rule 46 (14) (15):

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Also refer to S10, 12, 14 & 26 of the Corrupt Activities Act of 2004.

 

 

We now deal with Magistrate Court Executions:

 

MOVABLES

 

Rule 38:

 

General

 

Any execution must be done by an issued warrant. Any person (execution creditor) who has successfully obtained a judgment may sue on a warrant. The warrant may be withdrawn or suspended on payment by notification to the sheriff by the execution creditor. Any alteration must be initialled by the clerk of the court. Any re- issue can be done by the clerk without sanction from the court. If a wrong person is cited therein the warrant is invalid but this is not the case where a name is misspelt or of any error relating to a date where a judgment has been granted by consent (execution creditor has agreed to the judgment) or default (execution creditor has failed to defend the action), the warrant will be issued immediately otherwise a day after judgment.

 

FOR AN EXAMPLE OF A COMPLETED FILE FOR A MAGISTRATES’ COURT MOVABLE EXECUTION SEE form F3/8

 

Rule 38 (1):

 

“Where the sheriff is in doubt as to the validity of any attachment or contemplated attachment, he or she may require that the party suing out the process in execution shall give security to indemnify him or her.”

 

For the purpose of insurance it is generally advisable to obtain a security. This rule gives the sheriff a wide discretion in demanding the security. In the event of the sheriff facing a damages claim, the sheriff can always rely on the indemnity. It is always advisable for the execution debtor and his attorney to sign the indemnity. Whilst some attorneys are reluctant to sign, the sheriff should remind the attorney that the attorney is also insured against such damages and where a problem arises it would be easier for the sheriff’s insurance company to deal with the attorney’s insurance company. Also the execution creditor may be a man of straw.

 

Rule 38 (2) (a) & (b):

 

Under what circumstances can the sheriff demand a Rule 38 Indemnity?

 

“Unless the summons commencing the action has been served upon the defendant personally or he or she has delivered notice of intention to defend or notice of attachment has been given to him or her personally-

 

(a)if any property corporeal or incorporeal is attached in execution, the execution creditor shall, at least 10 days before the day appointed for the sale of such property give security to the satisfaction of the sheriff for the payment to the execution debtor if such attachment be set aside of any sum which the execution debtor may in law be entitled to recover from the execution creditor for damages suffered by reason of such attachment or of any proceedings consequent thereon; and if security be not given the attachment shall cease to have effect: Provided that the execution debtor may by endorsement to that effect on the warrant of execution dispense with the giving of security under this rule; or

 

(b)if moneys are received by the sheriff under any form of execution otherwise than as the proceeds of the sale in execution of property in respect of the attachment of which security has been given in terms of paragraph (a), such moneys shall not be paid to the execution creditor until he or she has given security for the restitution of the full amount received by the sheriff if the attachment be thereafter set aside: Provided that the execution debtor may in writing over his or her signature dispense with the giving of such security.”

 

Rule 38 (a) deals with corporeal or incorporeal attached property and Rule 38 (b) deals with the monies received. Where the defendant was not personally served or has not entered an appearance to defend, the sheriff may request security. Also this security may be waived by the execution debtor by endorsing the warrant.

 

Rule 38 (3):

 

What about costs?

 

“The prescribed fee for security given under this rule shall without taxation be recoverable as part of the costs of execution.”

 

 

Rule 38 (4):

 

Does the execution debtor need to transfer any bond of security?

 

“Any surety bond or other document of security given in terms of this rule may be sued upon by the execution debtor without formal transfer thereof to him.”

 

Rule 38 (5):

 

Who is exempt from providing a Rule 38 Indemnity?

 

“This rule shall not apply where the party suing out the process in execution or the execution creditor is a Minister, a Deputy Minister or a Provincial Premier, in his or her official capacity, the State or a provincial government.”

 

Rule 39:

 

General provisions regarding execution:

 

Rule 39 (1):

 

What are the first items that may be deducted?

 

“Unless otherwise ordered by the court, the costs and expenses of issuing a warrant and levying execution shall be a first charge on the proceeds of the property sold in execution and may so far as such proceeds are insufficient be recovered from the execution debtor as costs awarded by the court.”

 

Rule 39 (2) (a):

 

How should the distribution be done if there is more than one warrant?

 

“Subject to any hypothec existing prior to attachment, all warrants of execution lodged with any sheriff appointed for a particular area or any other sheriff on or before the day immediately preceding the date of the sale in execution shall rank pro rata in the distribution of the proceeds of the goods sold in execution.”

 

Rule 39 (2) (b):

 

How soon before the sale must the Sheriff notify other Sheriffs of the sale in the event of there being a S3(2)(b) warrant?

 

“The sheriff conducting a sale in execution shall not less than 10 days prior to the date of sale forward a copy of the notice of sale to all other sheriffs appointed for the area in which he or she has been instructed to conduct a sale in respect of the attached goods.”

 

Rule 39 (2) (c):

 

How would the Sheriff know if any other Sheriff has made an attachment over the same assets?

 

“The sheriff conducting a sale in execution shall accept from all other sheriffs appointed for that area or any other sheriff a certificate listing any attachment that has been made and showing the ranking of creditors in terms of warrants in the possession of those sheriffs.”

 

Rule 39 (3) (a):

 

How do you withdraw an attachment?

 

“Withdrawal of attachment shall be effected by note made and signed by the sheriff on the warrant of execution that the attachment is withdrawn, stating the time and date of the making of such note.”

 

Rule 39 (3) (b):

 

To whom should such notice of withdrawal be given? 

 

“The sheriff shall give notice in writing of a withdrawal of attachment and of the time and date thereof to the execution creditor, the execution debtor, all other sheriffs appointed for that area or any other sheriff who has submitted a certificate referred to in sub-rule (2)(c) and to any other person by whom a claim to the property attached has been lodged with him or her: Provided that the property shall not be released from attachment for a period of four months if a certificate referred to in sub-rule (2)(c) or an unsatisfied warrant of execution lodged under sub-rule (2) remains in the hands of the sheriff.”

 

Rule 39 (4):

 

What if there is a claim?

 

“If any property attached in execution is claimed by any third party as his or her property or any third party makes any claim to the proceeds of property so attached and sold in execution, the sheriff shall, subject to sub-rule (5), deal with such matter as provided in rule 44.”

 

Where any party other than the execution debtor claims ownership of attached goods, the sheriff must proceed by way of interpleader summons. We will deal more with this under Rule 44.

 

Rule 39 (5):

 

Does a claim uplift an attachment?

 

“Notwithstanding a claim to property referred to in sub-rule (4) by a third party the sheriff shall attach such property if he or she has not yet done so and the property shall remain under attachment pending the outcome of interpleader proceedings unless sooner released from attachment upon order of the court or otherwise, and rule 41 (7) shall mutatis mutandis apply to property so attached.”

All attached property will remain so pending the outcome of the interpleader proceeding

Rule 39 (6) (a):

 

What must be recorded from the sale?

 

“On completion of any sale in execution of property, whether movable or immovable, the sheriff shall attach to his or her return a vendue roll showing details of the property sold, the prices realised, and, where known, the names and addresses of the purchasers and an account of the distribution of the proceeds and shall send a copy of such vendue roll to all other sheriffs appointed for that area who have submitted certificates referred to in sub-rule (2)(c).”

 

Rule 39 (6) (b):

 

How should payment be made to other warrants that have participated in the sale?

 

“Where a warrant of execution has been lodged with the sheriff conducting a sale in execution by any other sheriff referred to in sub-rule (2)(a), the sheriff conducting the sale shall make payment in terms of a distribution account to any sheriff who submitted a certificate referred to in sub-rule (2)(c) in respect of that sale.”

 

Rule 39 6 (c):

 

How long should the distribution lay for inspection?

 

“Payment in terms of a distribution account shall only be made after the distribution account has lain for inspection for a period of 15 days after the sheriff who has lodged a warrant of execution with the sheriff who conducted the sale, has received a copy of the distribution account.”

 

Payment can only be made after the 15 day inspection period has lapsed and there has been no objection.

 

Rule 39 (7):

“No sheriff or person on behalf of the sheriff shall at a sale in execution purchase any of the property offered for sale either for himself or herself or for any other person.”

Your attention is once more drawn to S10, 12 14 and 26 of the Corrupt Activities Act of 2004.

 

Rule 40:

 

Rule 40 deals with execution against a partnership.

 

Rule 40 (1):

 

How do you attach against a partnership?

 

“Where a judgment debtor is a partner in a firm and the judgment is against him or her for a separate debt, the court may, after notice to the judgment debtor and to his or her firm, appoint the sheriff as receiver to receive any moneys payable to the judgment debtor in respect of his or her interests in the partnership.”

 

Rule 40 (2):

 

What is the effect of the judgment on the partnership?

 

“An appointment in terms of sub-rule (1) shall, until the judgment debt is satisfied, operate as an attachment of the interest of the judgment debtor in the partnership assets and the sheriff so appointed shall notify all other sheriffs appointed for that area of such appointment.”

 

The receiver appointment remains until the debt has been settled and the sheriff must notify any 3 (2) (b) sheriffs.

 

Rule 40 (3):

 

How do you attach against a firm?

 

“Where a judgment is against a firm, the partnership property shall first be exhausted, so far as it is known to the judgment creditor, before the judgment is executed against the separate property of the partners.”

 

Rule 41:

 

Execution against movable property continues.

 

Rule 41 (1) (a):

 

What is the process of attaching movable assetsS?

 

“The sheriff shall, upon receiving a warrant directing him or her to levy execution on movable property, repair to the residence, place of employment or business of the execution debtor or to another place pointed out by the execution creditor where movable property is to be attached as soon as circumstances permit, and there demand payment of the judgment debt and costs or else require that so much movable property be pointed out as the said sheriff may deem sufficient to satisfy the warrant, and if such last-mentioned request be complied with the sheriff shall make an inventory and valuation of such property.”

 

Rule 41 (1) (b):

 

What if the movables are insufficient?

 

“If the property pointed out in terms of paragraph (a) is insufficient to satisfy the warrant, the sheriff shall nevertheless proceed to make an inventory and valuation of so much movable property as may be pointed out in part execution of the warrant.”

 

Rule 41 (1) (c):

 

What if the debtor refuses to point out his assets?

 

“If the execution debtor does not point out any property as required in terms of subrule (1), the sheriff shall immediately make an inventory and valuation of so much of the movable property belonging to the execution debtor as he or she may deem sufficient to satisfy the warrant or of so much of the movable property as may be found in part execution of the warrant.”

 

 Rule 41 (1) (d):

 

What if the full amount or part payment is made?

 

“If on demand the execution debtor pays the judgment debt and costs, or part thereof, the sheriff shall endorse the amount paid and the date of payment on the original and copy of the warrant, which endorsement shall be signed by him or her and counter-signed by the execution debtor or his or her representative.”

 

Rule 41 (2):

 

The premises is locked, what now?

 

“So far as may be necessary to the execution of any warrant referred to in sub-rule (1), the sheriff may open any door on any premises, or of any piece of furniture, and if opening is refused or if there is no person there who represents the person against whom such warrant is to be executed, the sheriff may, if necessary, use force to that end.”

 

The sheriff shall have full access by way of a locksmith or reasonable force in fulfilling the execution.

 

Rule 41 (3):

 

What documentation is required for the attachment?

 

“The sheriff shall exhibit the original warrant of execution and shall hand to the execution debtor or leave on the premises a copy thereof.”

 

Rule 41 (4):

 

What is the result on inventorising goods?

 

“As soon as the requirements of this rule have been complied with by the sheriff, the goods inventoried by him or her shall be deemed to be judicially attached.”

 

What is meant by judicially attached? It simply means that the movables cannot be burdened, removed, sold, leased or diminished in value in any way.

 

Rule 41 (5):

 

What documents must be left on the premises?

 

“The sheriff shall hand a copy of an inventory made under this rule, signed by himself or herself to the execution debtor or leave the same on the premises, which copy shall have subjoined thereto a notice of the attachment.”

 

Rule 41 (6):

 

How are documents and monies (specie) attached?

 

“Where specie and documents are found and attached, the number and kinds thereof shall be specified in the inventory and any such specie or documents shall thereupon be sealed and removed to the office of the sheriff where it shall be safely stored.”

 

 

Rule 41 (7) (a):

 

When can the attached items be removed immediately?

 

“The execution creditor or his or her attorney shall, where movable property, other than specie or documents, has been attached, after notification of such attachment, instruct the sheriff in writing, whether the property shall be removed to a place of security or left upon the premises in the charge and custody of the execution debtor or in the charge and custody of some other person acting on behalf of the sheriff: Provided that the execution creditor or his or her attorney may, upon satisfying the registrar or clerk of the court, who shall endorse his or her approval on the document containing the instructions, of the desirability of immediate removal upon issue of the warrant of execution, instruct the sheriff in writing, to remove immediately from the possession of the execution debtor all or any of the articles reasonably believed by the execution creditor to be in the possession of the execution debtor.”

 

After the attachment and upon written instructions the sheriff shall remove the attached items, or place it in safe custody with someone else. It is also possible upon the instructor satisfying the clerk of the court to endorse a warrant for an immediate removal.

49

Rule 41 (7) (b):

 

What happens after the documents are left?

 

“In the absence of any instruction under paragraph (a), the sheriff shall leave the movable property, other than specie or documents, on the premises and in the possession of the person in whose possession the said movable property is attached.”

 

Rule 41 (7) (c):

 

How soon must the attached goods be removed?

 

“Where a sheriff is instructed to remove the movable property, he or she shall do so without any avoidable delay, and he or she shall in the meantime leave the same in the charge or custody of some person who shall have the charge or custody in respect of the goods on his or her behalf.”

 

Rule 41 (7) (d):

 

What happens if the attached goods are no longer on the premises or diminished in value?

 

“Any person in whose charge or custody movable property which has been attached, has been left, shall not use, let or lend such property, or permit it to be used, let or lent, nor shall he or she in any way do anything which will decrease its value and, if the property attached shall have produced any profit or increase, the custodian shall be responsible for any such profit or increase in like manner as he or she is responsible for the property originally attached.”

 

 Rule 41 (7) (e):

 

What happens when the custodian of the attached goods defaults?

 

“If a person in whose charge or custody movable property has been left, other than the execution debtor, makes a default in his or her duty he or she shall not be entitled to recover any remuneration for his or her charge and custody.”

 

Rule 41 (7) (f) (i):

 

When is the attachment to be released?

 

 “Unless an order of court is produced to the sheriff requiring him or her to detain any movable property under attachment for such further period as may be stipulated in such order, the sheriff shall, if a sale in respect of such property is not pending, release from attachment any such property which has been detained for a period exceeding four months.”

 

Rule 41 (7) (f) (ii):

 

If a release takes place before an ex- parte application finalisation date, is it necessary for the matter to go back to court?

 

“If such order was made on application made ex parte, such order shall not be subject to confirmation.”

 

Rule 41 (7) (f) (iii):

 

What is the effect of an interpleader on the four month period?

 

“In the event of a claimant lodging an interpleader claim with the sheriff in accordance with rule 44, the period of four months referred to in paragraph (i) shall be suspended from the date on which the claimant delivers his or her affidavit to the sheriff until the final adjudication of the interpleader claim, including any review or appeal in respect of such interpleader claim.”

 

Rule 41 (8) (a):

 

How are the attached goods sold?

 

“Any movable property sold in execution of process of the court shall be sold publicly and for cash by the sheriff who removed the goods in terms of sub-rule (7)(b) or, with the approval of the magistrate, by an auctioneer or other person appointed by the sheriff, to the highest bidder at or as near to the place where the same was attached or to which the same had been so removed as aforesaid as may be advantageous for the sale thereof.”

All movables must be sold by public auction, for cash by the sheriff, or by an auctioneer subject to approval of a magistrate at a place near or the very place of attachment with the prime objective of what would be advantageous to the sale. In practice the goods could possibly be sold from the premises from which it is being attached (heavy duty machines) or more usually from the sheriff’s store rooms.

 

Rule 41 (8) (b):

 

Who prepares a notice of sale, when and where is it displayed?

 

“The execution creditor shall, after consultation with the sheriff, prepare a notice of sale and furnish two copies thereof to the sheriff in sufficient time to enable one copy to be affixed not later than 10 days before the day appointed for the sale on the notice board or door of the court-house or other public building in which the said court is held and the other at or as near as may be to the place where the said sale is actually to take place.”

 

Rule 41 (8) (c):

 

Must the assets be advertised?

 

“If in the opinion of the sheriff the value of the goods attached exceeds R5 000 he or she shall indicate some local or other newspaper circulating in the district and require the execution creditor to publish the notice of sale in that newspaper not later than 10 days before the date appointed for the sale in addition to complying with paragraph (b) and to furnish him or her with a copy of the edition of the paper in which the publication appeared not later than the day preceding the date of sale.”

 

Rule 41 (9):

 

When must the sale take place? What about perishables?

 

“The day appointed for a sale in execution shall be not less than 15 days after attachment: Provided that where the goods attached are of a perishable nature, or with the consent of the execution debtor, the court may, upon application, reduce any period referred to in this sub-rule or sub-rule (8) to such extent and on such conditions as it may deem fit.”

 

Rule 41 (10):

 

What happens when the sale, before completion, satisfies the judgment?

 

“A sale in execution shall be stopped as soon as sufficient money has been raised to satisfy the said warrant and any warrant referred to in rule 39(2) and the costs of the sale.”

 

The sale must be stopped where the full costs have been recovered. This does not happen much in practice. However it is advisable to calculate the total amount of the warrant prior to the sale and carefully take note of the amounts received where 20 items are being sold and 15 items thereafter the warrant is satisfied, the sale of the remaining 5 items should be cancelled. Where 1 item e.g. a motor vehicle is being sold the sale should proceed even after the judgment debt amount has been bid, up to the highest bid, and surplus thereafter should be paid to the execution debtor.

 

Rule 41 (11) (a):

 

What happens to surplus monies from the sale?

 

“Should the sheriff have a balance in hand after satisfaction of the claim of the execution creditor and of all warrants of execution lodged with him or her on or before the day immediately preceding the date of the sale and of all costs he or she shall pay the same to the execution debtor if he or she can be found, otherwise he or she shall pay such balance into court.”

 

Rule 41 (11) (b):

 

What happens to the payment made into court?

 

“The balance paid into court in terms of paragraph (a), if not disposed of before the expiration of three years, shall be paid into the State Revenue Fund after three months’ notice of such intention has been given to the persons concerned, where after any application for the refund of such balance shall be directed to the State Revenue Fund by a person concerned.”

 azp101

Rule 42 (1): (Movable Execution continued)

 

How do you attach a lease, bill, etc?

 

 “Where the property attached in execution is a lease or a bill of exchange, promissory note, bond or other security for the payment of money-“

 

Rule 42 (1) (a) & (b):

 

Who must you notify to complete the attachment?

 

“(a)attachment shall not be complete until after notice to the lessor, lessee or person liable on the bill of exchange or other security, as the case may be; and

 

(b)possession of by the sheriff and notice has, in the case of a registered lease or bond, been given to the registrar of deeds concerned.”

 

 

Rule 42 (2) (a):

 

Must the third party be given notification of the attachment?

 

“Where the movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under a suspensive condition to or by a third person or is under the supervision or control of a third person-

 

How will the attachment be effected?

 

(a)attachment shall be effected by service by the sheriff on the execution debtor and on such third person of notice of the attachment with a copy of the warrant of execution, which service may be effected as if such notice was a summons: Provided that where service cannot be effected in any manner prescribed the court may make an order allowing service to be effected in the manner stated in the order; and

 

 Rule 42 (2) (b):

 

What documents must the Sheriff exhibit?

 

“(b)the sheriff may, upon exhibiting the original of such warrant of execution to the pledgee, lessor, lessee, purchaser, seller or such other third person, enter upon the premises where such property is and make an inventory and valuation of the said property.”

 

Rule 42 (3):

 

What is the mode of attachment?

 

“The method of attachment of property under section 32 of the Act shall mutatis mutandis be the same as that of attachment in execution.”

 

Rule 43:

 

This Rule deals with the execution against Immovable Property in the Magistrates Court

 

For an example of a completed Magistrates’ Court  immovable attachment please refer to form F3/9.

 

Rule 43 (1):

 

What must the warrant state?

 

“A warrant of execution against immovable property shall contain a full and complete description of the nature and situation (including the address) of the immovable property to enable it to be traced and identified by the sheriff, and shall be accompanied by sufficient information to enable the sheriff to give effect to the provisions of sub-rule (2).”

 

The warrant must contain sufficient information as to precisely which immovable needs to be attached. This refers to paragraph 3 on the warrant.

 

Rule 43 (2) (a):

 

On whom is the notice of attachment served?

 

“The mode of attachment of immovable property shall be by notice by the sheriff served in like manner as a summons together with a copy of the warrant of execution upon the execution debtor as owner thereof, upon the registrar of deeds or other officer charged with the registration of such immovable property, upon all registered holders of bonds (other than the execution creditor) registered against the property attached and, if the property is in the occupation of some person other than the execution debtor, also upon such occupier, and upon the local authority in whose area the property is situated.”

 

The method of attachment is as follows: Service (as a summons) of a copy of the warrant must be affected upon the execution debtor, the registrar of deeds upon all registered bond holders(other than the execution creditor i.e. when the Plaintiff is a bank). On the occupier and the local authority. An example of the notice of attachment is seen here below.

 

Rule 43 (2) (b):

 

When does a Magistrates Court attachment on fixed property lapse?

 

“If the period of attachment is extended as referred to in section 66(5) of the Act, notice of such extension shall be given to the persons referred to in paragraph (a) in the manner referred to in that paragraph.”

 

The sale of an immovable must take place within a period of 1 year from date of attachment failing which the attachment must be uplifted. Where the 1 year period is extended by way of a court order, all parties referred to in Rule 43 (2) (a) here above must be notified accordingly.

 

Rule 43 (2) (c):

 

Who must receive the notice?

 

“If the attachment of immovable property lapses in terms of section 66(4) or section 66(5) of the Act, the Sheriff shall notify the persons who are entitled to receive notice in terms of paragraph (a) that such attachment has lapsed.”

 

Rule 43 (3):

 

Who must ascertain whether there is any preferent claim?

 

“After the attachment of immovable property the sheriff shall ascertain and record whether the property is subject to any claim preferment to that of the execution creditor and, if that be the case, he or she shall thereupon notify the execution creditor of the existence of any such claim to enable the latter to give notice in terms of section 66(2) of the Act.”

 

 

 

 

 

Rule 43 (4):

 

Can a sheriff demand any document relating to the immovable?

 

“The sheriff may by notice, served in like manner as a summons, require the execution debtor to deliver to him or her all documents in his or her possession or under his or her control relating in any way to his or her title to attached immovable property.”

 

Rule 43 (5):

 

If the immovable falls outside the Sheriff’s jurisdiction, who should attach?

 

“Where attached immovable property is situate in a district other than that in which the judgment was given, the party requiring execution shall forward the warrant of execution to a sheriff of the court of the district in which the property is situate, who shall proceed to attach the property in the manner provided in this rule.”

 

Where the warrant is issued say by Johannesburg’s magistrate court, but the immovable is in Roodepoort jurisdiction, the sheriff of Roodepoort must attach the immovable.

 

Rule 43 (6) (a):

 

When and where can the property be sold?

 

“The sheriff shall appoint a day and place for the sale of attached immovable property which day shall, except by special leave of the court, be not less than one month after service of the notice of attachment.”

 

Rule 43 (6) (b):

 

Who prepares the sale notice?

 

“The execution creditor shall, after consultation with the sheriff, prepare a notice of sale containing a short description of the attached immovable property and its situation, the date, time and place for the holding of the sale and the material conditions thereof and furnish the sheriff with as many copies of the said notice as he or she may require.”

 

Rule 43 (6) (c):

 

Where the sale must be advertised?

 

The execution creditor shall publish a notice prepared in terms of paragraph (b) once in a newspaper registered with the Audit Bureau of Circulations of South Africa circulating in the district in which the immovable property is situated and in the Government Gazette not less than 5 days and not more than 15 days before the date of the sale and provide the sheriff, by hand or by facsimile, with one photocopy of each of the notices published in the newspaper and the Government Gazette, respectively, or, in the case of the Government Gazette, the number of the Government Gazette in which the notice was published.”

 

Rule 43 (6) (d):

When and who must receive a copy of the sale notice?

 

“Not less than 10 days prior to the date of the sale in execution of immovable property the sheriff shall forward by registered post a copy of the notice of sale prepared in terms of paragraph (b) to every execution creditor who has lodged a warrant of execution and to every mortgagee in respect of the immovable property whose address is reasonably ascertainable.”

 

Rule 43 (6) (e):

 

When and where must the sale notice be displayed?

 

“Not later than 10 days before the day appointed for a sale in execution of immovable property the sheriff shall affix one copy of the notice of the sale on the notice board or door of the court-house or other public building in which the said court is held and one copy at or as near as may be to the place where the said sale is actually to take place.”

 

Rule 43 (7) (a):

 

Who must prepare the conditions of sale?

 

“The conditions of sale for a sale in execution of immovable property shall be prepared by the execution creditor and shall, inter alia, provide for payment by the purchaser of interest on the purchase price from the date of sale of the property to date of payment of the purchase price.”

 

 

 

*Please take note ofthe earlier commentsmade regarding Form 21.

 

 

Rule 43 (7) b):

 

When should the conditions reach the Sheriff?

 

“The execution creditor shall not less than 20 days prior to the appointed date of a sale in execution of immovable property, deliver two copies of the conditions of sale to the sheriff and one copy thereof to each person who may be entitled to notice of the sale.”

 

Rule 43 (7) (c):

 

What are the time periods for any objections to the conditions of sale?

 

 “Any interested party may not less than 15 days prior to the appointed date of a sale in execution of immovable property, upon 24 hours’ notice to such other persons as may have received a copy of such conditions of sale and to the execution creditor, apply to a judicial officer for a modification of such conditions of sale and such judicial officer may make such order as he or she may deem fit.”

 

Rule 43 (8):

 

Who appoints the conveyancer?

 

“The execution creditor may appoint the conveyancer for the purposes of transfer of immovable property sold in execution.”

 

Rule 43 (9) (a) & (b):

 

Can the property be sold by a private Auctioneer, how is he appointed and paid and when must such notice be given?

 

(a)   “The execution creditor or any person having an interest in the due and proper realisation of attached immovable property may, by notice given to the sheriff within 15 days after attachment, but subject to the provisions hereinafter contained, require that such property shall be sold by an auctioneer in the ordinary course of business and may in such notice nominate the auctioneer to be employed.”

 

(b)How are the auctioneers fees secured?

 

(i)                            “Where a notice in terms of paragraph (a) is given by any person other than the execution creditor, such notice shall be accompanied by the deposit of a sum sufficient to cover the additional expense of sale by an auctioneer in the ordinary course of business, and in default of such a deposit such notice shall be void.”

 

What if there is no auctioneer?

 

(ii)               “A notice in terms of paragraph (a) shall lapse if in fact the services of an auctioneer are not obtainable.”

 

Can an auctioneer be paid from surplus funds?

 

“If after satisfying the claim of the execution creditor and all warrants of execution lodged with the sheriff on or before the day immediately preceding the date of the sale and all costs there are surplus proceeds of such property, such deposit shall be returned to the depositor, but if there is not such a”

 

(i)                 surplus such deposit shall, as far as may be necessary, be applied in payment of the auctioneer’s fees and expenses.”

 

Rule 43 (9) (c):

 

What if there are more than 2 auctioneers appointed?

 

“If two or more notices in terms of paragraph (a) are given, the first shall have the preference.”

 

Rule 43 (10):

 

What terms must be specified in the conditions of sale?

 

“A sale in execution of immovable property 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 (11):

 

Where should the sale take place?

 

“A sale in execution of immovable property shall be held at a place deemed fit by the sheriff or, for good cause shown, at such other place as the magistrate may determine.”

 

Rule 43 (12):

 

What happens when the district of issue and the district of the immovable differ?

 

“Where immovable property is situate in a district other than that in which the judgment was given, the sale in execution of the property shall be effected by a sheriff of the court of the district in which it is situate in the manner provided in this rule.”

 

Rule 43 (13):

 

Who gives transfer?

 

“The sheriff shall give transfer of immovable property sold in execution to the purchaser against payment of the purchase 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 or her shall be as valid and effectual as if he or she were the owner of the property.”

 

The sheriff is substituted as if he was the owner of the property and must do all within his powers to affect transfer.

 

*****It is very important that the purchase price is fully secured before any transfer documents are signed.

 

The sheriff would normally receive 10% of the purchase price on the date of sale. The remainder 90% of the purchase price is secured by way of a bank guarantee.

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A guarantee furnished on an attorney’s letterhead should not be accepted. The reason for this is on the date of transfer, the sheriff is responsible for the receipt of the balance of the purchase price with interest. Should the attorney be unable for whatever reason to honour his guarantee, the sheriff would personally be liable for the remainder of the purchase price? His conduct would be considered negligent in that he could have secured a better guarantee i.e. one from a bank.

Once the purchase price has been secured, the sheriff should then sign the transfer documents. This is prepared by the instructor’s conveyancer.

 

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Rule 43 (14) (a):

 

Should the balance of the purchase price be paid to the execution creditor?

“Subject to paragraph (b), all moneys in respect of the purchase price of immovable property sold in execution shall be paid to the sheriff of the court and not to the execution creditor or any other person on his or her behalf, and the sheriff shall retain such moneys in trust until transfer has been given to the purchaser.”

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Rule 43 (14) (b):

What happens immediately after the sale?

“The sheriff shall as soon as possible after the sale in execution of immovable property prepare in order of preference as provided in this rule, a plan of distribution of the purchase money received and such plan shall lie in his or her office for inspection of persons having an interest therein for a period of 15 days after the date of sale, unless all such persons inform the sheriff before the expiration of that period in writing that they have no objection to such plan, and a copy thereof shall be lodged with the registrar or clerk of the court and with any other sheriff who submitted a certificate referred to in rule 39(2)(c).”

Rule 43 (14) (c):

How is the money distributed?

“After deduction from the purchase money of the costs of execution, the following shall be the order of preference:

(i)                 The claims of any creditors ranking in priority to the judgment debt in their legal order of preference;

(ii)               the claim of the execution creditor to the extent of his judgment plus costs and the claims of other execution creditors who have lodged warrants of execution in terms of rule 39(2) plus costs; and

(i)                            the claims of creditors secured in respect of that property in their legal order of preference.”

(ii)                           

 

Rule 43 (14) (d):

What is the procedure for objecting to the plan of distribution?

“Any person having an interest in a plan prepared in terms of paragraph (b) and objecting thereto shall, within a period of 10 days after the expiration of the period referred to in paragraph (b), give notice in writing to the sheriff, the registrar or clerk of the court and all other persons having an interest therein of the particulars of his objection and may, if the grounds for his or her objection are not removed within 15 days after the expiration of the first-mentioned period, bring such plan

before the court for review.”

 

Rule 43 (14) (e), (f) & (g):

(e) A review under paragraph (d) shall be on 5 days’ notice to the persons mentioned in that paragraph: Provided that if such notice is not given within 20 days after the expiration of the period of 15 days mentioned in that paragraph, the objection will be deemed to be withdrawn.

(f) The court, on review, may hear and determine the matter in dispute in a summary manner and may thereafter amend or confirm the plan of distribution or may make such order as it may deem fit.

(g) If-

 

 

(i)no objection be lodged to a plan of distribution; or

 

(ii)the persons having an interest signify their concurrence therewith; or

 

(iii)an objection be lodged to such plan and notice in accordance with the proviso in paragraph (e) be not duly given; or

 

(iv)the plan be amended or confirmed on review,

the sheriff shall pay out the moneys retained by the sheriff in trust in terms of paragraph (a) in accordance with the plan of distribution, and any surplus shall, subject to section 71 of the Act, be paid to the execution debtor, if he or she can be found: Provided that if the sheriff is an officer of the Public Service and has certified that-

 

(aa)no objection has been lodged against such plan; or

 

(bb)all the persons having an interest therein have informed him or her that they have no objection; or

 

(cc)an objection has been lodged against such plan and notice in accordance with the proviso in paragraph (e) has not been given; or

 

(dd)the plan has been amended in accordance with an order of the court or has been confirmed on review,

such amount shall be paid out by the sheriff or any person authorised thereto by him or her in accordance with the plan of distribution so certified.”

 

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Rule 43 (14) (h):

What happens to any surplus funds?

 

“Rule 41(11) shall, subject to section 71 of the Act, mutatis mutandis apply to any surplus amount not paid out to an execution debtor under paragraph (g).”

 

“The sheriff shall, when notifying the result of the execution in terms of rule 8 (3) (a), also show the disposal of the amount recovered by him or her, and the notification to the registrar or clerk of the court shall be supported by a receipt for every amount paid out by him or her.”

 

Rule 43A:

How does a sheriff deal with a foreign issued warrant (outside the Republic)?

This Rule deals with enforcement of foreign civil judgments.

 

“43A. (1) Whenever a certified copy of a judgment referred to in section 3(1) of the Enforcement of Foreign Civil Judgments Act, 1988 (Act No. 32 of 1988), is filed with the registrar or clerk of the court in the Republic, such registrar or clerk of the court shall register that judgment by numbering it with a consecutive number for the year during which it is filed and by noting the particulars in respect of the judgment referred to in paragraphs (a), (b) and (c) of the said section on the case cover.

(2) A judgment creditor shall, together with the certified copy of a judgment referred to in subrule (1)-

 

(a)file an affidavit made by himself or herself or by somebody else who can confirm the following facts stating-

 

(i)the amount of interest due, the appropriate rate of interest and how the amount of interest has been calculated; and

 

(ii)whether any amount has been paid by the judgment debtor since judgment, and, if so, whether such amount has been deducted from the capital amount of the judgment debt or from the interest or costs, as the case may be; and

 

(b)any amount payable under the judgment is expressed in a currency other than the currency of the Republic, file a certificate issued by a banking institution registered in terms of section 4 of the Banks Act, 1965 (Act No. 23 of 1965), stating the rate of exchange prevailing at the date of the judgment.

 

(3) A notice issued in terms of section 3(2) of the Enforcement of Foreign Civil Judgments Act, 1988 (Act No. 32 of 1988), shall contain-

 

(a)the consecutive number referred to in subrule (1);

 

(b)the date on which the judgment was registered;

 

(c)the balance of the amount payable under the judgment;

 

(d)the taxed costs awarded by the court of the designated country;

 

(e)the interest, if any, which by the law or by order of the court of the designated country concerned is due on the amount payable under the judgment up to the time of registration of the judgment;

(f)the reasonable costs of and incidental to the registration of the judgment, including the costs of obtaining a certified copy of the judgment;

 

(g)the names of the parties concerned; and

 

 (h)the name of the court where the judgment was given.”

This deals with judgments granted by a foreign court. Provisions are made as to what is required from the clerk of the court. Provisions are made as to what is required from the clerk of the court. There are no clear instructions for the sheriff and the sheriffs should therefore attach under the given rules and make payments to his instructor.

Interpleader:

 

High Court Rule 58:

 

Rule 58:

It often happens that attached goods do not belong to the execution debtor. In order to establish this interpleader proceedings are commenced. The High Court interpleader proceedings are regulated by Rule 58.

Rule 58(1):

Who are the parties involved?

“Where any persons, in this rule called “the applicant”, alleges that he is under any liability in respect of which he is or expects to be sued by two or more parties making adverse claims, in this rule referred to as, “the claimants”, in respect thereto, the applicant may deliver a notice, in terms of this rule called an “interpleader notice”, to the claimants. In regard to conflicting claims with respect to property attached in execution, the sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.“

Rule 58 (2) (a):

What is the procedure when money is the subject matter if the claim?

 

 “Where the claims relate to money the applicant shall be required, on delivering the notice mentioned in sub- rule (1) hereof, to pay the money to the registrar who shall hold it until the conflicting claims have been decided.”

Rule 58 (2) (b):

What is the procedure when the subject matter is a tangible or a movable?

“Where the claims relate to a thing capable of delivery the applicant shall tender the subject matter

to the registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the registrar may direct.”

Rule 58 (2) (c):

What is the procedure when the subject matter is an immovable?

“Where the conflicting claims relate to immovable property the applicant shall place the title deeds thereof, if available to him, in the possession of the registrar when delivering the interpleader notice and shall at the same time hand to the registrar an undertaking to sign all documents necessary to effect transfer of such immovable property in accordance with any order which the Court may make or any agreement of the claimants.”

 

Rule 58 (3) (a) (b) & (c):

 

What are the contents of the interpleader notice?

“The interpleader notice shall:-

 

(a)   state the nature of the liability, property or claim which is the subject matter of the dispute;

 

(b)   call upon the claimants within the time stated in the notice, not being less than 15 days from the date of service thereof, to deliver particulars of their claims, and

 

(c)    state that upon a further date, not being less than 15 days from the date specified in the notice for the delivery of claims, the applicant will apply to court for its decisions as to his liability or the validity of the respective claims.”

 Rule 58 (4) (a) (b) & (c):

What must the Sheriff be deposed to in his affidavit?

“There shall be delivered together with the interpleader notice an affidavit by the applicant stating:

 

a)he claims no interest in the subject matter in dispute other than for charges and costs;

 

b)he does not collude with any of the claimants;

 

c)he is willing to deal with or act in regard to the subject matter of the dispute as the court may direct.

Rule 58 (5):

What are the courts options when the claimant is in default?

“If a claimant to whom an interpleader notice and affidavit have been duly delivered fails to deliver particulars of his claim within the time stated or, having delivered such particulars, fails to appear in court in support of his claim, the court may make an order declaring him and all persons claiming under him barred as against the applicant from making any claim on the subject matter of dispute.”

Rule 58 (6):

What are the courts options when the claimant is not in default?

“If a claimant delivers particulars of his claim and appears before it, the court may:-

(a)   then and there adjudicate upon such claim after hearing such evidence as It deems fit;

 

(b)   order that any claimant be made a defendant in any action already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant;

 

(c)    order that any issue between the claimants be stated by way of a special case or otherwise and tried, and for that purpose order which claimant shall be plaintiff and which shall be defendant;

 

(d)   if it considers that the matter is not a proper matter for relief by way of interpleader notice dismiss the application;

  

(a)   make such order as to costs, and the expenses (if any) incurred by the application under paragraph (b) of sub- rule (2), as to it may seem meet.”

Rule 58 (7):

What is the effect of an interpleader on an action?

“If an interpleader notice is issued by a defendant in an action, proceedings in that action shall be stayed pending a decision upon the interpleader, unless the Court upon an application made by any other party to the action otherwise orders.”

Magistrate Court Interpleader claims:

This is governed by Rule 44.

Rule 44 (1) a):

Who are the parties involved?

“Where any third party (hereinafter in this sub-rule referred to as the “applicant”) has in

Magistrate Court Interpleader Claims:

This is governed by Rule 44. For a complete interpleader file please refer to form F3/10.

Rule 44 (1) (a):

 

Who are the parties involved?

“Where any third party (hereinafter in this sub-rule referred to as the “applicant”) has in his or her custody or possession property to which two or more persons (hereinafter in this rule referred to as the “claimants”) make adverse claims the applicant may sue out a summons in the form prescribed for that purpose in Annexure 1 calling upon the claimants to appear and state the nature and particulars of their claims and have such claims adjudicated upon.”

 Rule 44 (1) (b):

What if the claim is over money?

“If the property in question consists of money, the applicant shall when suing out the summons pay the amount thereof into court.”

 

Rule 44 (1) (c) (i), (ii) & (iii):

 

What must the Sheriff depose to in his affidavit?

 

“The applicant shall annex to a summons referred to in paragraph (a) an affidavit setting out that -

(i)e or she claims no interest in the subject matter in dispute other than for charges or costs;

(ii)he or she is not colluding with any of the claimants; and

(iii)n the case of property other than money paid into court in terms of paragraph (b), he or she is willing to deal with the property as the court may direct.”

Rule 44 (2) (a) (i), (ii) & (iii):

When must a claimant lodge an affidavit?

“Where any person other than the execution debtor (hereinafter in this subrule referred to as the “claimant”) makes any claim to or in respect of property attached by the sheriff in execution of any process of the court or where any such claimant makes any claim to the proceeds of property so attached and sold in execution the sheriff shall require from such claimant to lodge an affidavit in triplicate with the sheriff within 10 days from the date on which such claim is made, setting out-

 

(i)the claimant’s full names, identity number and occupation;

 

(ii)the claimant’s residential address and business address or address of employment; and

 

(iii)the nature and grounds of his or her claim substantiated by any relevant evidence.”

Please note that it is possible to make a claim even after the goods have been sold. It is however submitted that as long as the goods have been purchased in good faith, and delivery is complete, the claimant would no longer be able to claim from the purchaser.

Rule 44 (2) (b) (i) & (ii):

When and to whom must the Sheriff deliver the claimant’s affidavits to?

 

“(i) Within 15 days after the date on which the claim is made the sheriff shall notify the execution creditor and all other sheriffs appointed for that area who have submitted certificates referred to in rule 39(2)(c) of the claim.

 

(i)                 Simultaneously with the notice referred to in subparagraph (i), the sheriff shall deliver one copy of the claimant’s affidavit to the execution creditor and one to the execution debtor.”

Rule 44 (2) (c) (i) & (ii):

 

How long thereafter must the execution debtor acknowledge or reject a claim?

 

“(i) The execution creditor shall, within 10 days of receipt of notice of the claimant’s claim and affidavit, advise the sheriff in writing whether he or she admits or rejects the claimant’s claim.

 

If the claim is admitted?

(ii)If the execution creditor gives the sheriff notice within the period stated in paragraph (i) that he or she admits the claim, he or she shall not be liable for any costs, fees or expenses afterwards incurred and the sheriff may withdraw from possession of the property claimed.”

 

Rule 44 (3) (a):

If the claim is rejected?

“If the execution creditor gives the sheriff notice that he or she rejects the claim, the sheriff shall within 10 days from date of such notice prepare and issue out a summons in the form prescribed for that purpose in Annexure 1 calling upon the claimant and the execution creditor to appear on the date specified in the summons to have the claim of the claimant adjudicated upon.”

Rule 44 (3) (b):

Who must be notified?

“The sheriff shall notify all other sheriffs appointed for that area who have submitted certificates referred to in rule 39(2)(c) of the date specified in the summons sued out under paragraph (a) and of the judgment of the court.”

 

Rule 44 (3) (c):

“The registrar or clerk of the court shall sign and issue the summons.”

 

Rule 44 (4), (5), (6) & (7):

What are the courts options if the claimant is in default?

“(4) If any claimant does not appear in pursuance of any summons sued out under this rule or appears but fails or refuses to comply with any order made by the court after his or her appearance, the court may make an order declaring him or her and all persons thereafter claiming under him or her barred from making any claim in respect of the subject matter referred to in the summons against the applicant or the sheriff.

What are the courts options if the claimant appears?

 

(5) If any claimant referred to in this rule appears in pursuance of any summons sued out under this rule, the court may-

 

(a)order him or her to state, orally or in writing on oath or otherwise, as the court may deem expedient, the nature and particulars of his or her claim;

 

(b)order that the matters in issue shall be tried on a day to be appointed for that purpose and, if any such claimant is a claimant referred to in subrule (1), order which of the claimants shall be plaintiff and which defendant for the purpose of trial; or

 

(c)try the matters in dispute in a summary manner.

  

(6) Where the matters in issue are tried, whether summarily or otherwise, the provisions of rule 29 as to the trial of an action shall mutatis mutandis apply.

 

(7) The court may, in and for the purposes of any interpleader proceedings, make such order as to any additional expenses of execution occasioned by the claim and as to payment of costs incurred by the applicant or sheriff as it may deem fit.”

Rule 45: (Warrants of arrest)

We will not deal with all the Rules specifically but only those which pertain to our work.

What happens when a debtor is arrested out of the jurisdiction from where the warrant was issued?

 (5) (a) When a judgment debtor has been arrested and is brought before a court which is not the court which authorised the warrant of arrest, that registrar or clerk of the court shall open a file, allocate a case number to it and hand it, together with the warrant, to the court.

 

(b) When the court referred to in paragraph (a) transfers the matter in terms of section 65A(11) of the Act to the court which authorised the warrant, the registrar or clerk of the court shall without delay send the original warrant and certified copies of the minutes of the proceedings and the order to that effect to the court which authorised the warrant.

 

(c) If the court before which proceedings in terms of section 65A(10)(b) or (11) are pending is not the court which authorised the warrant in terms of section 65A(6), the registrar or clerk of the former court shall by telephone or in writing by facsimile notify the registrar or clerk of the latter court of the appearance of the judgment debtor, director or officer before the former court and shall inform the judgment creditor or his or her attorney by telephone or in writing by facsimile accordingly: Provided that full particulars of telephone calls and proof of transmission of facsimiles shall be filed in the case cover.

This rule refers to Section 65A (1) of the Act. This rule deals with the financial enquiry of the execution debtor. Please refer to form F3/11 for an example of Form 

40 referred to in this rule, which also embodies the rest of the requirements of the rule.

The failure of the execution debtor to appear in court may result in his arrest. The following is therefore of vital importance.

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In practice the court will not issue a warrant of arrest where there is no personal service. The larger courts set aside a specific court on a specific day each week to deal with the warrants. It therefore allows the sheriff and the courts and the execution debtor a specific time to deal with this, and to avoid the execution debtor remaining unnecessarily in custody where this is not justified. The execution debtor is arrested or alternatively warned to appear in court on the specified date. The deputy sheriff should hand over the execution debtor with the warrant to the clerk of the court. There aregenerally practical difficulties with this and at times the deputy has to remain in court with the execution debtor until the matter has been settled. This of course means a lot of delay for which the sheriff is meagrely rewarded.

In rural areas where the courts have no cells the arrested the arrested execution debtor is simply handed to the nearest police station and kept in a cell until the court date. If there is no cell the execution debtor is simply released and warned to appear in court on the specific date.

Where the warrant is issued outside the sheriff’s jurisdiction, the execution debtor must be taken to his Magistrate’s Court who will in turn postpone and forward the matter to the appropriate court for finalization. The execution debtor will be so warned.

 

Rule 46 (1) & (2): (Emolument Attachment Orders)

“(1) When an emoluments attachment order is issued by a judgment creditor out of any court other than the court in which the judgment or order was obtained, a certified copy of the judgment or order against the judgment debtor shall accompany the affidavit or affirmation or certificate referred to in section 65J(2)(b) of the Act.

 

(2) an emoluments attachment order shall be issued in the form prescribed in Annexure 1, being Form 38, and shall contain sufficient information to enable the garnishee to identify the judgment debtor, including the identity number or work number or date of birth of the judgment debtor.”

This rule deals with the attachments of emoluments.

What is the difference between an emolument and a garnishee?

An emolument is the wages/ salary owed to the execution debtor which can be legally attached.

A garnishee is a debt in favour of the execution debtor which can be legally attached.

See  form F3/12 for an example of an emolument attachment order.

Procedures that may stop an execution:

S78 of the Magistrates’ Court Act: Execution or suspension in case of appeal, etc

“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 the 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” 

 

The appeal must be noted and the application to rescind must be filed. A mere letter to this effect will not suffice.

AUCTIONEERING/ SALES IN EXECUTION MOVABLE.

See F3/13

At this point in the process it is assumed that all the requirements prior to the sale has been complied with:

A sale date has been provided on request.

The goods have been removed.

No claims for the goods have been received by other parties. If claims were received an Interpleader Process has been completed.

Is the sale participating with any other matters.

ORGANISATION

The secret to any successful auction is good organization and preparation. Preparation takes time. Prepare your auction at least one to two days in advance:

Ensure that the correct sale items are removed from the storage area, cleaned and made presentable for sale.

Label the goods in lot numbers corresponding with your vendue roll

Display the goods clearly ensuring that potential buyers can inspect the goods without damaging it.

Match the sale goods with the sale notices/adverts to ensure that the correct items are being sold.

THE VENUE

As discussed previously you would require permission from your local Magistrate to conduct your auctions at your premises. Alternatively you will be required to conduct the auction at the magistrate court.

Assuming permission has been granted ensure that your venue is well lit and ventilated.

TIP: TRY TO KEEP YOUR SALE GOODS AWAY FROM THE OTHER GOODS IN YOUR STOREROOM TO PREVENT YOUR BUYERS FROM INTERFERING WITH IT.

FORMS /NOTICES ERQUIRED FOR THE SALE

Sale notice (1)

Proper rules of auction need to be displayed ito CPA (2)

General notification need to be displayed. (3)

Condition of sale need to be displayed. (4)

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SALE DAY

REGISTRATION

FICA/CPA requires that all buyers REGISTER prior to bidding.

A notice of all registration requirements must be displayed on your premises.

A register must be kept for record purposes .

The register must contain specific information.

After correctly registering the buyer is given a BUYERS CARD and can now bid.

Once all the requirements have been met the sale may proceed.

METHOD

There is no definitive method of auctioneering it would depend on your circumstances. Chanting may work in Soweto but not in Polokwane. So your auctioneering style and method would be determined by the environment and circumstances.

Before starting the auction make your buyers aware your own conditions of sale:

Payment method

Vat is payable

Goods are sold “as is”

Goods must be removed immediately after payment.

Etc

suffecient

 

All goods are sold to the highest bidders.

On completion of the sale payment must be made by the buyers to the Sheriff. It is important to note that VAT is payable on all movable sales including the sale of motor vehicles. A tax invoice/receipt is issued to the buyers on payment.

Payment can also be made by EFT. Some offices allow buyers to make use of their internet facilities to make payment. This is convenient and relatively safe. The funds are paid into your trust account and a receipt issued.

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There are several  auctioneering computer programmes on the market which are time saving. However one should not depend totally on them as there may be occasions where  the goods are sold away from the sheriff’s stores , and there may not be any electrictity etc.

DISTRIBUTION OF FUNDS.

Once the sale is completed and all funds received a DISTRIBUTION ACCOUNT needs to be drawn up.

The sheriffs costs are first deducted and the balance paid out to the plaintiff/his attorney. If there is a surplus this is paid back to the Debtor.

Bear in mind that interest has to be calculated before payment is made to the plaintiff.

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Once all calculations have been made and checked payment is made out of Trust.The sale that just took place has 3 other matters participating with it .

A Return must accompany your proof of payment, distribution account and vendu roll.

The file may now be closed but kept for a period of 5 years for record purposes.

CHECK LIST:

 

HAVE I COMPLIED WITH THE FOLLOWING:

 

SALE NOTICE AND ADVERTS

 

DISPLYING RULES OF AUCTION

 

DISPLAYING OF REGISTRATION REQUIREMENTS

 

REGISTERING BUYERS CORRECTLY

 

DISPLAYING CONDITIONS OF SALE

 

CORRECTLY COMPLETEING VENDU ROLL

 

CHAPTER 4: Winding Down.

 

We now deal with the winding up of the office. This once more entails both logistical and legal requirements.

Let’s deal with the logistical requirements first. You need to notify the following that you would be closing:

  • The SABFS.
  • The DOJCD..
  • Your staff. Ensure that you give them sufficient  notice as is required in terms of your service contract.
  • Your local Magistrate Court.
  • Your local Attorneys and request the speedy payment of your outstanding accounts.
  •  SARS if you are not going to trade any further.

You need to prepare your legal requirements.

  • Prepare and collate all processes and active files that have to be handed over to the incumbent sheriff.
  • Make an inventory of all attached goods and the incumbent needs to verify this physically against the movables to be handed over.
  •  The retiring sheriff would still be required to furnish the SABFS with all its legal requirements, i.e. Form 7, 16 and the Residue Form up to the date of his retirement where this does not fall on the 1st of March.
  • Separate, urgent /prescribing/dated processes for the incumbent to deal with immediately.
  • As the incumbent would most probably commence at the beginning of the month, arrange for the payment of your trust monies within 7 days thereof. The 7 days should afford you the opportunity of finalizing your books up to the point of trial balance.
  • Should the outgoing sheriff’s trust account remain open or closed thereafter?

It is a great responsibility to conduct a trust account. You would only be able to close your trust account should there no longer be any transactions. Those matters that are in the process of being completed are the ones that present difficulties. Examples of these are immovable guarantees that have been furnished in favour of a retiring sheriff.

These payments would only take place on the transfer of the immovable and payment would be made into the retiring sheriff’s trust account.

One wonders whether the retiring sheriff would still want to bother with these monies. Perhaps the solution is, wherever possible, that the incumbent sheriff writes to his instructors to furnish new guarantees in his favour and cancel the other guarantees.

This would ensure a clear cut off between the retiring and incumbent sheriff.

The outgoing sheriff’s computer data should be handed to the new incumbent staff for the sake of continuity.

Consider what you wish to do with your office and equipment. Would you consider selling/leasing to the incumbent? Would you encourage the incumbent to take on your staff?

Once the handover have been completed the retiring sheriff’s duties are complete and the incumbent sheriff’s duties begin.