Court name
High Court
Case name
Katjiuanjo v Willemse and Others
Media neutral citation
[2012] NAHC 245
Judge
Geier J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 3464/2011








In the matter between:








OTHILIE KATJIUANJO
.................................................................................
PLAINTIFF



and



DAWID WILLEMSE
........................................................................
FIRST
DEFENDANT



ANNA MARIA WILLEMSE
........................................................SECOND
DEFENDANT



DEPUTY
SHERIFF GOBABIS

..................................................................
THIRD
DEFENDANT








Neutral
citation:
Katjiuanjo
v Willemse
(I
3464/2011) [2012] NAHCMD 5 (26 September 2012)








Coram:
GEIER J



Heard:
12 July
2012



Delivered:
26
September 2012








Flynote: High
court—Civil proceedings—Execution—Sale in execution
—Sale of immovable property—Deputy-Sheriff, when so
selling such property, acting as an executive of the law—Where
conditions of sale in sale in execution provide that ‘purchaser
may be entitled to occupation and possession of the property…
upon payment of the deposit…’ – such term not
conferring absolute right of immediate possession on purchaser -
obligation to give vacua possessio that of the sheriff in prescribed
circumstances only—Sheriff answerable ex contractu if he fails
to perform in terms of the contract – Court not following
Bonsai Investments Eighty Three (Pty) Ltd v Kögl & Others

http://www.saflii.org/na/cases/NAHC/2011/189.html-
in that
regard








Execution—Sale
in execution—Powers of Sheriff—The Sheriffs authority to
sell immovable property pursuant to a writ of execution is created
and circumscribed by Rule 46 of the Uniform Rules of Court. When the
Sheriff disposes of property in pursuance of a sale in execution he
acts as an ‘executive of the law’ and not as an agent of
any person. When a Sheriff as part of the execution process commits
himself to the terms of the conditions of sale, he, by virtue of his
statutory authority, does so in his own name and may also enforce it
on his own. A sale in execution of immovable property entails two
distinct transactions, namely the sale itself and the passing of
transfer pursuant thereto. Although Rule 46 does not specifically
empower a Sheriff to institute proceedings in order to enforce the
contract embodied in the conditions of sale, such power is implicit
in the duty to see that transfer is passed and the provisions of Rule
46(13), which impose an obligation upon him to do anything necessary
to effect registration of transfer – sheriff thus having power
to also
institute
or defend proceedings in regard to the enforcement of any of the
other remaining terms of such a contract of sale








Execution –
judgment debtor’s right of use and ownership of immovable
property occupied - Until an immovable property that has been sold in
execution has been transferred into the name of the purchaser, the
judgment debtor’s ownership therein remains undisturbed as does
his or her right, qua owner, to the use thereof. Only the transfer of
ownership of such property to the new owner brings about an end to
the legal basis of the judgment debtor’s right to the use and
ownership thereof - the impact of the transfer on such property will
however depend on the identity of the occupant and the legal basis of
his or her occupation -








Practice
– exception – defendants excepting to cause of action
relied by plaintiff based on the condition of sale providing that
‘purchaser may be entitled to occupation and possession of the
property… upon payment of the deposit…’ –
court finding that such term not conferring absolute right of
immediate possession on plaintiff – in casu plaintiff’s
action ill-conceived on two grounds – it was firstly
misdirected vis a vis the defendants, on contractual grounds –
and secondly - it was simply premature - given the fact that transfer
had not yet been taken – Exception therefore upheld








Summary:
Plaintiff
having purchased the immovable property of Defendants – in
which they continued to reside - at a sale in execution – one
of the conditions of sale providing that
the
property may be taken possession of immediately after payment of the
initial deposit and shall after such deposit be at the risk and
profit of the purchaser” – plaintiff – prior to
taking transfer - seeking eviction of defendants from immovable
property in question on the basis of such term against defendants -
the judgment debtors - also being the registered owners of the
property in question - - Defendants excepting to relied upon cause of
action based on the aforesaid term of the sale in execution –
on the ground that the particular term not conferring any legal basis
upon which the defendants ejectment from the immovable property could
be obtained -








Held – as the deed
of sale was concluded between plaintiff and the Deputy- Sheriff, such
contract conferring no direct right on plaintiff to sue defendants
direct for vacuo possessio – any contractual rights which
plaintiff might have acquired enforceable against Deputy-sheriff only
– sheriff in turn having locus standi – if the
contractual framework allows for this - to institute proceedings
regarding the enforcement of the of the terms of the sale in
execution –








Held
-
until
an immovable property that has been sold in execution has been
transferred into the name of the purchaser, the judgment debtor’s
ownership therein remains undisturbed as does his or her right, qua
owner, to the use thereof. Only the transfer of ownership of such
property to the new owner brings about an end to the legal basis of
the judgment debtor’s right to the use and ownership thereof -
the impact of the transfer on such property will however depend on
the identity of the occupant and the legal basis of his or her
occupation –








Held
- as – on the facts of this matter - the defendants’
rights of ownership in
Erf
103, Green Street, Nossobville, Gobabis – remained undisturbed
– the plaintiff not yet having taken transfer of the property –
the defendants remained entitled to the use thereof – until
such time that they elect to voluntarily vacate such property, or
until such time that they are lawfully evicted by the plaintiff, once
the plaintiff has become the registered owner of Erf 103, which
registration then – by operation of the law – would by
then have brought about an end to the defendants’ legal right
of ownership and occupation –








Held
-
that
the plaintiff’s action in this matter was ultimately
ill-conceived on two main grounds – it was firstly misdirected
vis a
vis
the
defendants, on contractual grounds – and secondly prematurely
instituted, given the fact that transfer had not yet been taken. –








Held - that exception
therefore had to be upheld with costs










ORDER
















  1. The first and second
    defendant’s exception is upheld with costs, such costs to
    include the costs of one instructed– and one instructing
    counsel;










  1. The
    plaintiff is granted leave to amend the particulars of her claim
    within 15 days of the delivery of this judgment

    if so advised, - failing
    which the defendants are granted leave to apply for the dismissal of
    the plaintiff’s action within 15 days of the expiry of the
    aforesaid 15 day period afforded to the plaintiff.
















JUDGMENT










GEIER J:








[1]
This
matter comes to court by way of an exception through which the
defendants seek to ward off the plaintiff’s quest to have them
ejected from the immovable property in which they currently reside -
being Erf 103, Green Street, Nossobville, Gobabis - the plaintiff
having purchased such property at a sale in execution - through which
the judgment creditor - Swabou Investments (Pty) Ltd - seeks to
execute a judgment which it obtained against first and second
defendants.








[2] It appears more
particularly from the claim particulars that the plaintiff’s
claim for eviction is founded on one of the conditions of sale –
clause 11 of annexure “A” - which governed the sale in
execution - and in terms of which it was provided that:








the
property may be taken possession of immediately after payment of the
initial deposit and shall after such deposit be at the risk and
profit of the purchaser
.








[3]
The defendants in reply now contend that such a condition of sale
cannot sustain a cause of action for eviction as:









  1. Rule 46 of the High
    Court Rules and clause 11 of annexure “A” of the
    conditions of sale do not empower the third defendant, the deputy
    sheriff to place plaintiff in possession of the property while it is
    still occupied by the registered owners;



  2. Clause 11 of the said
    conditions of sale cannot and do not grant the plaintiff the right
    to claim possession of the property while it is still occupied by
    the owners;



  3. Plaintiff relies on
    the right to possess the property which is not sufficient in law to
    evict the registered owners who are in occupation;



  4. Plaintiff alleges
    first and second defendants’ are in unlawful possession of the
    property which is factually and legally incorrect as they, the
    registered owners, in lawful occupation of their property;



  5. The plaintiff does
    not allege that she complied with clause 7 of the conditions of the
    sale in that she furnished security within 14 (fourteen) days after
    the date of auction which entitles her transfer to the property.
    Consequently she has lost her right to purchase the property.




THE ARGUMENT ON BEHALF
OF THE EXCIPIENTS








[4] The written heads of
argument, filed on behalf of first and second defendants, firstly and
in general, set out how real rights in immovable property are
acquired in terms of section 16 of the Deeds Registries Act, Act 47
of 1937.








[5] It was submitted
further that:








Rule
46 (10)
1
provides
that the deputy sheriff is the seller of the property. Rule 46 (12)
2
stipulates
that the deputy sheriff shall give transfer to the purchaser against
payment of the purchase money and upon performance of the conditions
of sale. This means the deputy sheriff and not the judgment creditor
is the one to waive compliance with the conditions – assuming
it can be done.



Furthermore,
Rule 46 does not empower the deputy sheriff to put a purchaser in
possession of a property sold by auction prior to transfer. Clause 11
of the conditions of sale provides that the purchaser “may”
take possession of the property after the deposit was paid. This does
not confer the right on a purchaser to deprive a registered owner of
his/her rights in respect of the property.



Ownership
is generally the highest ranking right in respect of property.
Therefore, subject to few exceptions, only an owner can evict an
occupier of his/her property.
3



A
purchaser of immovable property who is not the actual possessor has
no locus standi to apply for eviction even against a trespasser.
4



A
purchaser of immovable property who complied with her obligations has
a personal right vis a vis the seller to enforce transfer and to
obtain possession.
5
Ownership does
not pass on account of mere agreement to sell nor does actual
possession follow an agreement to grant possession. Ownership passes
on registration as required by section 16 of the Deeds Registry Act,
1937. Therefore the registered owner has the superior right in this
context even if it is accepted that plaintiff has a right to possess
(which defendants don’t).



A
recent case in Namibia
6
is
distinguishable. It appears no distinction was made between the right
to possess and actual possession.
7
This distinction
is crucial because in law the purchaser who gained possession obtains
a right in rem which entitles her to apply for ejection of someone
with an inferior right to occupy the property.
8
Furthermore the
occupant of the farm in question in the BONSAI- case was a lessee in
terms of an invalid agreement and not the owner as in this case.



The
distinction is borne out by reference to the cases relied on in
BONSAI:
9



Both
relate to a landlord and tenant situation.




  1. In
    EBRAHIM the applicant for eviction was the landlord whose title
    could not be disputed.



  2. In
    BOOMPRET the appellants (occupants of property to be evicted)
    occupied the land in terms of a sub-lease which came to an end while
    the respondent (applicant for eviction) was the lessee of the land
    in terms of a notarial lease agreement.



  3. In
    both cases the principle was confirmed that a lessee is bound by the
    lease agreement and cannot when it comes to an end resist returning
    occupation to the lessor. This is clearly not applicable here.’









[6]
It was against this background submitted:








It
is trite that generally no one can evict an owner from his/her
property. It is also established that someone who is not the owner
and not in possession can in general not evict any occupant of
property unless there is a lease arrangement to which the occupant
is/was a party.



Plaintiff
herein appears to rely on the following assertions to establish her
right to evict defendants:








She
purchased the property.
10
The truth is she
did not purchase the property yet. She simply acquired the right to
purchase it subject to the conditions of sale. She has not exercised
this right yet.



She
complied with all her obligations in terms of the conditions of
sale.
11
It is clear she
did not. She paid the deposit and claims the judgment creditor waived
her obligation to provide a guarantee.
12
As mentioned
above it is not for the judgment creditor to do it. The deputy
sheriff is not its agent.
13
The deputy
sheriff is the seller. Furthermore her right to purchase would become
enforceable – against the deputy sheriff – once she paid
the purchase price.



She
derives her locus standi from clause 11 of the conditions of sale,
which she alleges give her the right to possess the property after
she paid the deposit.
14
As mentioned the
clause provides that she ‘may’ take possession. At best
for her it entitles her to occupy the property if it is available for
occupation and if not she must take transfer to obtain locus standi
to evict defendants.
15
Furthermore as
demonstrated above: in terms of substantive law she has no locus
standi to apply for defendants’ eviction. Rule 46 does not
authorise the deputy sheriff to give her occupation prior to
transfer. The conditions of sale cannot change the law especially
because defendants are not party to it.



Defendants
are in unlawful possession of the property.
16
This is simply
incorrect. They occupy the property as registered owners. They have
the superior right in relation to plaintiff.’








[7]
In Supplementary Heads of Argument, Mr Coleman, who appeared on
behalf of the defendant’s herein, reinforced these submissions,
by also placing reliance on the analysis of the resultant position in
the Magistrates Court as the set out in
Jaftha
v Schoeman & Others
.17
I will
return to this as will appear from what is set out below.








THE PLAINTIFF’S
WRITTEN ARGUMENT








[8] It appears from Mrs
Schneider’s heads of argument that she premised her client’s
case squarely on the conditions of sale ‘on which the plaintiff
relied for her locus standi to evict the first and second
defendants’, as it was put. She countered the attack mounted
against the plaintiff’s failure to supply the security for the
outstanding purchase price - which had to be supplied within 14
(fourteen) days of the sale - in terms of clause 7 of the conditions
of sale – with reference to the fact that the judgment creditor
in this matter - Swabou Investment (Pty) Ltd - had waived this
particular requirement.








[9]
She then summarised the common law principles which according to her
applied to the judicial seizure of immovable property in order to
give effect of a court’s judgment as follows:








An
arrest effected on property in execution of a judgment creates a
pignus judiciale over such property. The effect of such a judicial
attachment is that the goods attached are thereby placed in the hands
and the custody of the officer of the court. The property passes out
of the estate of the judgment debtor and vests in the hands of the
she Sheriff.
18



When
the Sheriff attaches and sells the property in execution he does not
act as agent of the judgment creditor or the judgment debtor but does
so as an executive of the law.
19



The
authority of the Sheriff in relation to the sale in execution of
immoveable property is created and defined by Rule 46 of the High
Court Rules and the Sheriff must remain strictly within the limits of
this authority. Accordingly, when immoveable property is sold by the
Sheriff in terms of Rule 46, he becomes a party to the contract suo
nominee and he is bound to perform his obligations there under, which
includes the giving of transfer of the property to the purchaser,
which, when effected, is considered to be done as validly and as
effectually as if he were the owner of the property.
20








Although
Rule 46 does not specifically empower a Sheriff to institute
proceedings in order to enforce the contract embodied in the
conditions of sale, such power is implicit in the duty to see that
transfer is passed. If that were not so, the Sheriff’s only
remedy, in the event of a purchaser failing to carry out any of his
or her obligations under the conditions of sale, would be to approach
a Judge in Chambers for the cancellation thereof in terms of Uniform
46 (11) and would allow recalcitrant purchasers at sales in execution
to avoid their obligations almost with impunity.
21



Rule
46 (11) is only applicable when



...
the purchaser fails to carry out any of his or her obligations under
the conditions of sale..”



This
is not the case here
.



The
Rules of Court strictly regulate sales in execution of immovable
property. As stated above, the Sheriff’s authority is created
and circumscribed by the provisions of Rule 46 of the High Court.



Rule 46 (8) (a) (i)
provides –



The
conditions of sale shall, not less than 30 days prior to the date of
the sale be prepared by the execution creditor as near as may be in
accordance with Form 22 of the First Schedule, and the said
conditions shall be submitted to the sheriff conducting the sale to
settle them, and the execution creditor shall thereafter supply the
deputy-sheriff with 2 copies of the conditions of sale, one of which
shall lie for inspection by interested parties at his or her office.”








Form 22 carries the
heading: “Conditions of Sale in Execution of Immovables.”








Paragraph
9 thereof reads
:








The
property may be taken possession of immediately
after
payment

of
the initial deposit, and shall after such deposit be at the
risk
and profit of the purchaser
.”
(
Own
emphasis
)



The provisions of
paragraph 9 of Form 22 were specifically included in the Conditions
of Sale signed by the purchaser.








The
position as set out by the excipient in its Heads of Argument is a
correct exposition of the common law, in contracts of purchase.
22
Reference
to the Rules of Court are not taken into account in the exposition.








The Rules of Court








The
role played by the Rules of Court, are eloquently stated in The Law
of Civil Procedure in High Court of South Africa
23:








The
law of procedure is adjective
law
and
is thus accessory to substantive law, which defines legal rights,
duties and remedies. Adjective law deals with the proof and
enforcement of rights, duties and remedies.” (
Own
emphasis
).








And further








A
knowledge of substantive law is essential, but will not in itself
enable a legal practitioner to secure redress for a client. It does,
however, assist in answering three questions which are in their
nature preliminary, though, no less fundamental on that account: (1)
Does my client have a right? If so, (2) has there been an
infringement of that right? (3) What is the remedy – not: Does
he have a remedy?”








That
the above must be so is because when there is a right there must be a
remedy (ubi ius ibi remedium).
24








It
is trite that legislation may modify the common law. The Namibian
Constitution explicitly provides for this:
25








Subject
to the terms of this Constitution, any part of such common law or
customary law may be repealed or modified by Act of Parliament, and
the

application
thereof may be confined to particular parts of Namibia or to
particular periods.’



It
is pointed out that, not only does payment of the initial deposit
entitle the purchaser (plaintiff herein) to possession, but the risk
of the property becomes the plaintiff’s risk. In order to carry
the risk of the property, the purchaser needs to have control of the
property and thus the Rules of Court make provision for a purchaser
at a sale in execution to be entitled to possession.



The
Rules of Court, being (albeit subordinate) legislation, have
purposefully made a modification to the common law position relied on
by the excipient.



That
this is the position in law, was recognised by the Court in as early
as 1913:
26



I
am of the opinion that it is not the duty of the Sheriff to guarantee
possession, but that his duty is confined to seeing that transfer is
passed. If there is any difficulty in obtaining possession, the
purchaser must take proceedings for ejectment.”



The
fact that the deputy-sheriff does not act as an agent of anybody but
as an executive in law
27,
implies that the purchaser at a sale in execution, due to the sui
generis nature of the contract of sale (embodied by the prescribed
Conditions of Sale) must have a right to institute an action against
a person who is preventing him from taking possession and controlling
his risk in relation to the property.



The
fact that the common law does not provide the purchaser with standing
to institute vindicatory eviction proceedings, cannot stand in the
way of a plaintiff who is entitled to possession and risk by way of a
right conferred on him by law. In this respect the Court has held, in
respect of the purchaser
28:








...
the purchaser was entitled to possession in the sense that he was
entitled to be considered the new landlord and was entitled to
collect the rentals.”



This
Honourable Court, in dealing with an exception raised in similar
circumstances and on the same basis (being lack of locus standi of a
purchaser at an auction to sue for eviction), held as follows:
29



As
a result, the purchaser having concluded the conditions of sale with
the Deputy Sheriff, obtained possessory rights in terms thereof, and
is perfectly within its rights, to sue for eviction. On that basis
the exception cannot succeed.”



It
is respectfully submitted that the plaintiff has the necessary
standing to sue for the eviction of the first and second defendants.’



ORAL ARGUMENT








[10]
Some of Mr. Coleman’s oral argument focused on whether or not
the preconditions for the sale, which would operate suspensively,
were met. His main argument however focused on the nature of the
right acquired by plaintiff, in terms of the conditions of sale.
According to Mr. Coleman this was only a personal right which had
accrued only
vis
a vis
the
sheriff and not against the registered owners of the property against
which execution was levied. He sought to distinguish the
Bonsai
case
from the present situation in that the occupants in the Bonsai case
were clearly in unlawful occupation of the property i.e. they were
trespassing - which was clearly not the situation here - as his
clients - the defendants – were always the lawfully registered
owners of the property which had been sold at the sale in execution –
and that such situation therefore was distinguishable.








[11]
In the alternative he submitted that the Bonsai case had been wrongly
decided.








[12]
Mrs. Schneider, on the other hand, countered these submissions by
arguing that the principles as set out by the court in the
Goedhals
decision
were not applicable to the present matter, that the present case was
distinguishable as the conditions of sale in this instance clearly
provided that the purchaser - after the payment of the initial
deposit – could elect to take possession, which possession
would then be at the risk and profit of the purchaser - and that it
was this condition which indicated that the plaintiff was entitled to
possession. She submitted that her client was merely enforcing this
possessory right which had been afforded to her in terms of the
conditions of sale, which right she could also enforce,
vis
a vis
the
vindicatory rights, of the defendants.








[13]
Encouraged by the court’s finding, as made in the
Bonsai
case,
on which authority she relied in the main, she submitted that the
plaintiff’s particulars of claim disclosed a valid cause of
action – and that it should therefore follow that the
defendants’ exception was liable to be dismissed with costs.








[14]
In reply Mr. Coleman forcefully reiterated that in terms of the
conditions of sale the only rights, which had accrued to the
plaintiff, were those
vis
a vis
the
other contracting party, and that such rights which were enforceable
against the deputy sheriff, who was the other contracting party in
such scenario. These rights, so Mr. Coleman argued, could still be
excussed way of the remedy of specific performance against him. The
obvious further remedy – which had always remained available to
plaintiff - was to seek the transfer of the property
30
and
thereafter the ejectment of the defendants.








THE GOVERNING LEGAL
PRINCIPLES – THE NATURE OF THE RIGHT AQUIRED BY A PURCHASER AT
A JUDICIAL SALE IN EXECUTION








[15] In my view the
correct applicable legal position has been set out in a number of
South African decisions:









  1. Sedibe
    and another v United Building Society and another 1993 (3) SA 671
    (T) were Eloff JP
    31
    for the Full Bench
    analysed the position as follows
    32
    :









I
find it convenient to commence my discussion of the case by
considering the validity of the notion that the sheriff acted as
agent of the judgment debtor and that the latter was the true
principal. The passage quoted earlier in the SA Permanent
33
case
was an obiter dictum. With respect, I do not think that it correctly
reflects the position in law. To begin with, no statutory provision
that was quoted to us, or which I have been able to find, indicates
that the deputy-sheriff acts as the agent of the judgment debtor. The
functions of the sheriff are set out in the Rules and the Act and
they are mainly the following. First of all, Rule 43(7)(a) says:



(a)
The conditions of sale shall be prepared by the execution creditor
and shall, inter alia, provide for payment by the purchaser of any
interest due to a preferent creditor from the date of sale of the
property to date of transfer. The execution creditor shall not less
than 28 days prior to the appointed date of sale, deliver two copies
of the conditions of sale to

the
messenger and

one
copy thereof to each person who may be entitled to notice of the
sale.



(b)
Any interested party may not less than 21 days prior to the appointed
date of sale, 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 may deem just.”



Furthermore,
Rule 43(8) says the execution creditor may appoint a conveyancer for
the purpose of transfer. In Rule 43(10) it is provided:



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



And
lastly, as regards the Rules, reference may be made to Rule 43(13):



The
messenger shall give transfer 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 shall be as valid and effectual
as if he were the owner of the property.'



Reference
might also be made to the Act itself which in s 68(4) and (5) states:



'(4)
Whenever, if the sale had not been in execution, it would have been
necessary for the execution debtor to endorse a document or to
execute a cession in order to pass the property to a purchaser, the
messenger may so endorse the document or execute the cession, as to
any property sold by him in execution.



(5)
The messenger may also, as to immovable property sold by him in
execution, do anything necessary to effect registration of transfer.
Anything done by the messenger under this subsection or ss (4) shall
be as valid and effectual as if he were the execution debtor.'



None
of these provisions, to my mind, casts the sheriff in the role of the
representative of the judgment debtor. They do not support such a
legal fiction as was assumed by Kuper J. Secondly, in a contractual
setting, such as that with which we are here concerned, there is no
room for the view that the former owners played any role at all. They
were merely brought onto the scene by reason of the foreclosure. They
had no right to control the course of events and they in fact took no
part in the formulation of the conditions of sale.



The
fact, stressed in counsel's heads, that the former were at the time
of the sale the owners of the property, is irrelevant. It affords no
basis for the legal fiction that they were really disposing of the
property.



In
several decisions it was held that, in performing his functions, the
messenger or sheriff does not act as the agent of anybody but as an
executive of the law. Reference might in this regard be made to the
following: Hill v Van der Byl 1869 Buch 126 at 132; Cyster v Du Toit
1932 CPD 345 at 348; Weeks and Another v Amalgamated Agencies Ltd
1920 AD 218 at 225 and 226; Kathrada Brothers v Findlay &
Sullivan 1938 NPD 321 at 329 and 330; Paizes v Phitides 1940 WLD 189
at 191; and, lastly, Phillips v Hughes; Hughes v Maphumulo 1979 (1)
SA 225 (N) at 229J-H.



That,
in my view, applies with equal force where the messenger disposes of
property in pursuance of a sale in execution. When, as part of the
process, he commits himself to contractual terms, he does so suo
nomine by virtue of his statutory authority; he becomes bound to the
terms of the contract in his own name and he may enforce it on his
own.



That
leads me to the conclusion that the obligation created in casu by
clause 5, by which vacua possessio was guaranteed, was that of the
sheriff. He had to make good his undertaking and he was answerable ex
contractu if he failed to ensure that the appellants obtained
undisturbed possession.’









  1. This position seems to
    have been endorsed by Combrink J in:









Syfrets
Bank Ltd and others v Sheriff of The Supreme Court, Durban Central,
and another; -Schoerie No v Syfrets Bank Ltd and others 1997 (1) SA
764 D were the learned Judge states
34
:








When
the Sheriff attaches and sells the property in execution he does not
act as agent of the judgment creditor or the judgment debtor but does
so as an executive of the law. See Sedibe and Another v United
Building Society and Another 1993 (3) SA 671 (T), where the obiter
dictum of Kuper J in South African Permanent Building Society v Levy
1959 (1) SA 228 (T) at 230B to the effect that in a sale of execution
the Sheriff acts as a statutory agent on behalf of the judgment
debtor, was disavowed as a correct reflection of our law by the Full
Bench of the Transvaal Provincial Division per Eloff JP. In Weekes
and Another v Amalgamated Agencies Ltd 1920 AD 218 at 225 De Villiers
AJA (as he then was) said the following:



Now
the Messenger is an officer of the Court who executes the orders of
the Court. V Leeuwen ad Peckium: Deel XXIV 2, says of the
Deurwaerders, the Messengers of the Higher Courts (but the principles
also apply to Messengers of the Lower Courts): "sunt enim
executores, manus regis et ministeriales judicis." And Voet (V i
62), speaks of them while discharging their functions as representing
the

Judge
"cujus mandato instructi sunt". But he points out they are
not protected and may be resisted when they either have no mandate or
go outside the limits of their authority

(mandati
fines).

The
duties of the Deurwaerders were very carefully circumscribed in
various Placaats. In the Instructie v/d Hove van Holland, etc of 20
August 1531 (Groot Placaatboek II art 91) they were enjoined "de
brieven die aan hen gedirigeerd worden . . . terstond ten versoeke
van partije, ter executie stellen na heur vorm en inhouden". And
that still applies today. The writ is the authority of the Messenger
for the Attachment, and as all arrests are odious he must at his
peril remain strictly within the four corners of the writ (v Leeuwen
R-D Law V vi 12).'



As
mentioned earlier, the authority of the Sheriff in relation to the
sale in execution of immovable property is created and defined by
Rule 46 of the Uniform Rules of Court and he must remain strictly
within the limits of his authority. Accordingly, when immovable
property is sold by the Sheriff in terms of Rule 46, he becomes a
party to the contract suo nomine and he is bound to perform his
obligations thereunder, which includes the giving of transfer of the
property to the purchaser, which, when effected, is considered done
as validly and as effectually 'as if he were the owner of the
property' (vide Rule 46(13) and see, too, Sedibe's case supra at
676D).”









  1. Also the Western Cape
    High Court has adopted this position. This appears from its
    exposition of the applicable position in the Magistrate’s
    Court per Van Reenen J and Nel J as set out in:









Jaftha v Schoeman &
others; Van Rooyen v Stoltz & others [2003] 3 ALL SA 690 at paras
[45] – [46]:








[45]
A warrant of execution against immovable property authorizes and
requires the sheriff to attach and sell in execution in accordance
with the provisions of subsections 62(2) –(8) and section 68 of
the Magistrates Court Act and Magistrates Court Rule 43. The Sheriff
in attaching and selling immovable property in execution acts as an
executive of the law” (see: Sedibe and another v United
Building Society and another 1993 (3) SA 671 (T) at 676A-B). An
attachment brings about a pignus judiciale which does not affect the
judgment debtor’s dominium in the attached property but merely
places it in the hands or under the custody of the sheriff (see:
Liquidators Union and Rhodesia Wholesale Ltd V Brown & Co’1922
AD 549 at 558-9). A sale in execution of immovable property entails
two distinct transactions namely, the sale of the property and the
transfer thereof see : (Syfrets Bank Ltd and Others v Sheriff of the
Supreme Court 1997 (1) SA 764 (D) at 778A-B). Unless the sheriff in
the conditions of sale – which he concludes eo nomine
contractually binds himself to the purchaser to do so (see: the
Sedibe case {supra) at 676C-D) his duty is to see to it that transfer
is passed to the purchaser and not the guaranteeing of vacua
possessio. (See:Goedhals v Deputy Sheriff of Albany 1913 CPD 108 at
110)
.



[46]
It is clear from the above that until an immovable property that has
been sold in execution has been transferred into the name of the
purchaser, the judgment debtor’s ownership therein remains
undisturbed as does his or her right, qua owner, to the use thereof.
Although the transfer of ownership of such property to the new owner
brings about an end to the legal basis of the judgment debtor’s
right to the use thereof, the impact of the transfer on such property
will depend on the identity of the occupant and the legal basis of
his or her occupation. If occupation is by a person other than the
judgment debtor in terms of, for instance, a lease or a right of
precarium, the transfer of ownership does not bring an automatic end
to the right of occupation. In the case of a lease the rule huur gaat
voor koop applies and protects a tenant’s continued occupation,
subject to the prior rights of any mortgagee. (See: ABSA Bank Ltd v
Sweet and others 1993 (1) SA 318 (C) at 324B-F) and, if it is held
precario, by application of the principle qui prior est tempore
potior est jure, after reasonable notice of termination (see: Adamson
v Boshoff and others 1975 (3) SA 221(C) at 229B). Although after
transfer of ownership the purchaser’s right to the use thereof,
qua owner, displaces the judgment debtor’s right to do so, the
former’s use may manifest itself in different ways. The
purchaser may want to occupy it personally or permit others to do so
in terms of contractual or other arrangements that need not
necessarily exclude the judgment debtor. The judgment debtor, once
the legal basis for his or her occupation of an immovable property
namely, his or her dominium therein, has come to an end has a choice.
He or she may elect to vacate the property voluntarily or simply
continue to occupy it without having entered into any contractual or
other arrangements with the purchaser. In the event of the former,
the loss of access to housing in respect of the particular
residential unit is the result of a volitional act on the part of the
judgment debtor and not the execution process. In the event of the
latter, there will be a holding over by the judgment debtor, in which
case the new owner will be obliged to institute legal proceedings for
the eviction of the judgment debtor. Similarly a sheriff who has
contractually bound himself to provide vacua possessio, will have to
institute eviction proceedings. In such proceedings the substantive
and procedural requirements of the PIE Act will “have to be
complied with. Accordingly, if the judgment debtor is evicted from
immovable property that constitutes his or her home and in the
process is deprived of the right of access to that particular
residential unit, such eviction will not have been brought about by
the execution process but by separate legal proceedings instituted by
the new owner based on a causa totally independent of the proceedings
pursuant to which the execution had taken place …”.









  1. Van Reenen J reiterated
    this position subsequently – while considering the locus
    standi of the Sheriff to enforce the conditions of a sale in
    execution - in :









Ivoral Properties (Pty)
Ltd v Sheriff, Cape Town, and others 2005 (6) SA 96 (C)








when the Court stated :








[65]
Did the first respondent possess the power and authority to have
instituted proceedings against the fourth respondent for the
enforcement of the conditions of sale?



[66]
A Sheriff may not sell immovable property attached pursuant to a duly
issued writ of execution otherwise than by way of a public auction
and his authority is created and circumscribed by the provisions of
Uniform Rule 46 (see Schoerie NO v Syfrets Bank Ltd and Others 1997
(1) SA 764 (D) at 771G; 773J - 774A). When a Sheriff disposes of
property in pursuance of a sale in execution he acts as an 'executive
of the law' and not as an agent of any person. When a Sheriff, as
part of the execution process, commits himself to the terms of the
conditions of sale, he, by virtue of his statutory authority, does so
in his own name and may also enforce it on his own (see Sedibe and
Another v United Building Society and Another 1993 (3) SA 671 (T) at
676A - C). A sale in execution of immovable property entails two
distinct transactions namely, the sale itself and the passing of
transfer pursuant thereto (see Schoerie NO v Syfrets Bank Ltd (supra)
at 778A - B). Although Uniform Rule 46 does not specifically empower
a Sheriff to institute proceedings in order to enforce the contract
embodied in the conditions of sale, such power is implicit in the
duty to see that transfer is passed and the provisions of Uniform
Rule 46(13) which impose an obligation upon him to do anything
necessary to effect registration of transfer. If that were not so the
Sheriff's only remedy, in the event of a purchaser failing to carry
out any of his or her obligations under the conditions of sale, would
be to approach a Judge in Chambers for the cancellation thereof in
terms of Uniform Rule 46(11) and would allow recalcitrant purchasers
at sales in execution to avoid their obligations almost with
impunity.



[67]
I accordingly incline to the view that the first respondent did have
the power and authority to institute proceedings against the fourth
respondent to enforce compliance with the terms of the conditions of
sale.’








[16] It appears from the
above cited case law that the here applicable legal position has been
set out in a number of South African decisions. The South African
cases reflect a thorough analysis of the applicable authorities and –
in the absence of any applicable reported Namibian case law –
save for the abovementioned Bonsai case – to which I will
return - I can find no reason not to follow these authorities which I
accordingly adopt.








THE IMPACT OF THESE
PRINCIPLES ON THE EXCEPTION








[17]
Having said this, it follows that it is the Deputy – Sheriff –
as executive of the law
35
that concludes
the agreement of sale with a purchaser at a judicial sale in
execution. The Sheriff and the purchaser are the parties to such
agreement – which is then – in accordance with the
normally applicable legal principles – enforceable between
these contracting parties.








[18]
If it is the Deputy- Sheriff who has contractually bound himself to
provide
vacua
possessio
of
a property sold in execution, the purchaser has clearly acquired such
a right directly only
vis
a vis
the
Sheriff. This right may obviously be enforced, on the one hand, by
the purchaser against the Sheriff. On the other it also follows that
it is the Deputy- Sheriff that will have to institute eviction
proceedings, if the underlying legal position allows this and the
contractual framework provides for this.








[19]
This he may do by virtue of his implicit statutory authority, in his
own name.
36








[20]
It also seems correct that a sale in execution of immovable property
entails two distinct transactions
37
namely, the sale itself
and the passing of transfer pursuant thereto. Although Uniform Rule
46 does not specifically empower a Sheriff to institute proceedings
in order to enforce the contract embodied in the conditions of sale,
such power is implicit in the duty to see that transfer is passed and
in the provisions of Uniform Rule 46(13), which impose an obligation
upon him to do anything necessary to effect registration of
transfer
38.
By that same token it is implicit that the Sheriff must also have the
power to institute or defend proceedings in regard to the enforcement
of any of the other remaining terms of such a contract of sale.








[21]
In terms of the cited case law, no such direct right is afforded to
the purchaser of an immovable property pursuant to a sale in
execution prior to transfer. This is not surprising given the
underlying legal position – which I have accepted as correct –
and which is to the effect that ‘until an immovable property
that has been sold in execution has been transferred into the name of
the purchaser, the judgment debtor’s ownership therein remains
undisturbed as does his or her right, qua owner, to the use thereof.
Only the transfer of ownership of such property to the new owner
brings about an end to the legal basis of the judgment debtor’s
right to the use and ownership thereof - the impact of the transfer
on such property will however depend on the identity of the occupant
and the legal basis of his or her occupation.
39








[22]
As – on the facts of this matter - the defendants’ rights
of ownership in
Erf
103, Green Street, Nossobville, Gobabis – remained undisturbed
40
the
defendants remain entitled to the use thereof – until such time
that they elect to voluntarily vacate such property, or until such
time that they are lawfully evicted by the plaintiff, once the
plaintiff has become the registered owner of Erf 103, which
registration then – by operation of the law – would by
then have brought about an end to the defendants’ legal right
of ownership and occupation.








[23]
It follows that
in
such event the defendants’ eviction would then also not have
been brought about by the execution process direct but by separate
legal proceedings, instituted by the new owner, based on a
causa
totally independent of
the proceedings, pursuant to which the execution had taken place …
“. The purchaser does indeed then have a right to institute an
action
against
a person who is unlawfully preventing him from taking possession.
This right however accrues only in the circumstances mentioned above.








[24]
In such scenario it appears that Mrs Schneider’s blanket
submission – to the effect that ‘the purchaser must have
a right to institute an action
against
a person who is preventing him from taking possession and controlling
his risk in relation to the property’ –

in the context of this
matter - is simply too wide as it is qualified by the applicable
legal position in terms of which a purchaser may thus indeed have a
right to institute such an action – depending on the
circumstances through the medium of the Deputy-Sheriff. A purchaser
is thus also not altogether without remedy – as was submitted
further - as it has appeared - for example – that prior to the
taking of transfer – such possessory remedies would be
contractually confined – which remedy – subsequent to the
taking of transfer would then have been transformed into vindicatory
rights by virtue of the passing of ownership.








[25]
It also follows that – contrary to Mrs Schneider’s
further submissions relating to the plaintiff’s
locus
standi
that
the law does indeed confer standing on a purchaser in certain
circumstances to institute eviction proceedings prior to transfer via
the Sheriff, and – if transfer has been given – and a
tenant remains in occupation – the purchaser will indeed be
considered the new landlord, and have
locus
standi
in
that capacity, for instance.








THE ARGUMENT RESTING
ON THE ‘BONSAI INVESTMENTS’ CASE








[26]
In that case the Court upheld Mrs Schneider’s submissions to
the effect that in terms of the same particular term of the
underlying sale in execution
41
‘ … immediate
possession was granted to the plaintiff by the Deputy Sheriff at the
sale in execution ….’
42








[27] The following
observations can however not be reconciled with this finding:









  1. no immediate or absolute
    right to possession is expressly or impliedly created by the
    particular contractual term – it only affords the purchaser a
    possibility to take possession – so much is indicated by the
    word ‘may’;



  2. the
    right having been created
    ex
    contractu
    is
    clearly enforceable between the contracting parties – ie.
    vis
    a vis
    the
    Deputy Sheriff only – and in certain circumstances by the
    Deputy Sheriff, on the strength of his implicit authority against a
    third party;



  3. the term also imposes a
    condition precedent – which will first have to be met –
    ie the payment of the deposit;



  4. implicit in such term –
    and thus impacting thereon - will always be the residual terms -
    imposed thereon - by operation of the applicable law;



  5. this means that
    possession ‘may’ only be taken in the limited
    circumstances authorized by law – ie. if the registered owners
    have, for instance, voluntarily vacated the property; or



  6. by
    that same token this means in the converse – that if the
    judgment debtor’s dominium – and the legal basis for his
    or her occupation of the property - has not yet been terminated by
    operation of the law, ie. through transfer into the purchaser’s
    name – the purchaser ‘may’ also not take
    possession until such time that he or she has become entitled to
    vacuo
    possessio
    ;
    or



  7. were
    an occupant, such as a tenant remains in lawful occupation –
    the purchaser ‘may’ obviously – and despite
    transfer – also not take possession by virtue of the principle
    huur
    gaat voor koop’
    ;
    for instance.









[28]
It appears therefore that the finding in the
Bonsai
matter, that the
contractual term in question provides –
‘ …
that contractually
immediate possession was granted to the plaintiff …. ‘
-
cannot be correct as a general statement.








[29]
I also respectfully beg to differ with the learned judge in the
Bonsai
matter
para
[24]
43
- were she comes to the
conclusion that the purchaser obtained possessory rights in terms of
the contract that was concluded with the sheriff which rights were
enforceable directly against the occupants of the property in
question – as in my view - if any possessory rights where
acquired by the plaintiff in the Bonsai case – such rights were
not acquired vis a vis the defendants there – but were
contractual rights acquired
vis
a vis
the
Deputy- Sheriff, through which possession might be acquired through
the means of the Deputy – Sheriff in the same manner as the
Sheriff would be obliged to see to it that transfer would be passed
to the purchaser.








[30] For these reasons I
consider myself not bound to follow the Bonsai case.








[31]
In the final equation I conclude therefore that the plaintiff’s
action in this matter was ultimately ill-conceived on two scores –
it was firstly misdirected
vis
a vis
the
defendants, on contractual grounds – and secondly - it was
simply premature - given the fact that transfer had not yet been
taken.








[32] In the premises the
exception is upheld with costs, such costs to include the costs of
one instructed and one instruction counsel.








LEAVE TO AMEND?








[33]
As a matter of general practice the Courts, upon the upholding of an
exception, tend to grant leave to amend to the relevant party 'if so
advised'
44.








[34] Mr Coleman has
submitted that the plaintiff’s claim is beyond redemption and
that the Court should thus outright dismiss the plaintiff’s
action.








[35] Mrs Schneider on the
other hand has requested an opportunity to consider an appropriate
amendment.








[36] Although there may
be merit in Mr Coleman’s submission I consider it unfair not to
afford the plaintiff the opportunity sought.








[37] Accordingly I grant
the plaintiff leave to amend the particulars of her claim –
within 15 days of the delivery of this judgment – if so
advised, - failing which the defendants are granted leave to apply
for the dismissal of the plaintiff’s action within 15 days of
the expiry of the aforesaid 15 day period afforded to the plaintiff.























----------------------------------



H GEIER



Judge









































































APPEARANCES








PLAINTIFF: H SCHNEIDER



Instructed by Van der
Merwe-Greeff



Incorporated, Windhoek.








FIRST and SECOND



DEFENDANTS: G B COLEMAN



Instructed by AngulaColeman, Windhoek





















1Of
the Rules of High Court




2Of
the Rules of High Court





3BP
Namibia (Pty) Ltd v Southline Retail Centre CC
2009
(1) NR 268 (HC) at para [15];
Hefer v Van
Greuning
1979 (4) SA 952 (A)





4Sheriff
for the District Wynberg v Jakoet
1997 (3)
SA 425 (C); See also:
Kanniappen v Govender
1962 (1) SA 101 (N) at p 104





5LAWSA
Things para 361;
Kanniappen supra





6Bonsai
Investments Eighty Three (Pty) Ltd v Koegl & Others

http://www.saflii.org/na/cases/NAHC/2011/189.html-





7See
the dictum at para [22] of the
Bonsai
matter




8Bucholtz
v Buchholtz
1980 (3) SA 424 (W)





9Ebrahim
v Pretoria Stadsraad
1980 (4) SA 10 (T) and
Boompret Investments (Pty) Ltd & Ano v
Paardekraal Concession Store (Pty) Ltd
1990
(1) SA (A) at 351




10Pleadings
p 4 para 5




11Pleadings
p 5 para 5




12Pleadings
p 19




13BONSAI
supra para [11]




14Pleadings
p 5 para 8




15Jakoet
supra p 4301




16Pleadings
supra p 5 para 9.




17[2003]
3 All SA 690 (C) paras [45] & [46]




18Liquidators
Union and Rhodesia Wholesale Ltd v Brown & Co
1922
AD 549 at 558 - 559




19Sedibe
and Another v Untied Building Society and Another
,
1993 (3) SA 671 (TPD)




20Ibid
at 676 D




21Ivoral
Properties (Pty) Ltd v Sheriff, Cape Town and Others
2005
(6) SA 96 (C) at 118G-I




22Van
der Linden -
Regtsgeleerd Practicaal en
Koopmans Handboek
, 1.15.9.




23Herbstein
& Van Winsen
, 5th
Ed at 3




24Minister
of Interior & Ano v Harris & Others
1952
(4) SA 768 (A) at 781




25Article
66 (2) of the Namibian Constitution




26Goedhals
v Deputy Sheriff of Albany
1913 CPD 108 at
110




27Syfrets
Bank Ltd & Othyers v Sheriff of the Supreme Court, Durban
Central & Ano
1997 (1) SA 764 (D) at
773E




28Timm
v Kay and Another
1954 (4) SA 585 (T) at
587F





29Bonsai
Investments Eighty Three (Pty) Ltd v Herta Bertha Waltraut Kögl
and Two Others
reported
at

http://www.saflii.org/na/cases/NAHC/2011/189.html
- at para [24]





30it
was common cause between the parties that transfer of the property
into plaintiff’s name had not yet taken place.




31With
whom Goldstein J and Myburgh J concurred




32At
p 675B – 676D




33South
African Permanent Building Society v Levy
1959
(1) SA 228 (T)




34At
p 773E – 774A





35Sedibe
& An0
v United Building
Society & Ano 1993
(3) SA 671 (T)
at 675B-676D - Syfrets
Bank Ltd
& Others
v Sheriff of
the
Supreme
Court, Durban
Central, &
Ano
- 1997
(1) SA 764 D
at 773 E





36Ivoral
Properties (PTY) LTD v Sheriff, Cape Town, & Others

2005 (6) SA 96 (C) at para [66]





37Jaftha
v Schoeman & Others;
V
an Rooyen
v Stoltz & Others
[2003] 3 ALL SA 690 at para
[45]





38Ivoral
Properties (PTY) LTD v Sheriff, Cape Town, & Others 2005 (6) SA
96 (C) at para [66]





39Jaftha
v Schoeman
& Others;
V
an
Rooyen
v Stoltz
& Others
[2003] 3 ALL SA 690 at para [46]





40The
plaintiff not yet having taken transfer of the property





41the
property may be taken possession of immediately after payment of the
initial deposit and shall after such deposit be at the risk and
profit of the purchaser”.





42At
page 7 – para 22 of the judgment





43As
a result, the purchaser having concluded the conditions of sale with
the Deputy Sheriff, obtained possessory rights in terms thereof, and
is perfectly within its rights, to sue for eviction. On that basis
the exception cannot succeed.”





44See
for instance : Group Five Building Ltd v Government of the
Republic of South Africa ( Minister of Public Works & Land
Affairs)
1991 (3) SA 787 (T) at 794 A - B