On 17 November 2017 the amendments to the Rules regulating the conduct of proceedings in the High Courts and Magistrates’ Courts of South Africa were published in the Government Gazette. These amendments came into effect on 22 December 2017.

The amendments specifically brought the proceedings with regards to the execution against immovable property in the High Courts and Magistrates’ Courts in line with one another. In this regard, Rule 43 of the Magistrates’ Courts Rules was substituted with the same wording as that of Rule 46 in the Uniform Rules of Court.

Furthermore, Rule 46A was introduced in the Uniform Rules of Court and an exact copy thereof as Rule 43A in the Magistrates’ Courts Rules. These two Rules regulate the execution against residential immovable property and the introduction of a reserve price during the sale in execution.

Rule 46A of the Uniform Rules of Court and Rule 43A of the Magistrates’ Courts Rules apply whenever an execution creditor seeks to execute against the residential immovable property of a judgment debtor. The court has an obligation to establish whether the immovable property is the primary residence of the judgement debtor and to consider alternative means by the debtor to satisfy the judgment debt. The court can only authorise execution against the primary residence if it finds that, after having considered all relevant factors, the execution is warranted.

The Rules further stipulate exactly what should be contained in the application, the affidavit thereto and what documentation should be before the court in order to consider all the relevant factors. Sub rule 3(d) of both sets of Rules stipulate that the application must be served on the judgment debtor personally, unless the court ordered service in any other manner.

Every application should be supported by the following documents, where applicable, evidencing:

1. the market value of the immovable property;
2. the local authority valuation of the immovable property;
3. the amounts owing on mortgage bonds registered over the property;
4. the amounts owing to the local authority as rates and other dues;
5. the amounts owing to a body corporate as levies;
6. any other factor which may be necessary to enable the court to give effect to sub rule 8.

Sub rule 8 of both sets of Rules mentions the various powers the court has in handing down a ruling. These include amongst others that the court may:

1. include any condition in the conditions of sale that it considers appropriate;
2. order the furnishing of the municipality rates and body corporate levies due by the judgement debtor;
3. order execution against the primary residence if there is no other satisfactory means to satisfy the judgement debt; and
4. set a reserve price.

Sub rule 9 of the Rules is the introduction of a reserve price being set by the courts. This sub rule places an obligation on the courts to consider whether a reserve price is to be set or not. This sub rule also lists the various factors that should be taken into account when considering whether or not to impose a reserve price and what the amount should be.

Should the reserve price not be achieved at a sale in execution, the Sheriff must submit a report within 5 days of the date of the auction, setting out when and where the auction was held, as well as the information of the persons who participated and the highest bid. The court must then give regard to the report and the information before it and make an order on how the execution is to proceed, including an order that the immovable property be sold to the person who made the highest bid.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.