Special Investigating Units And Special Tribunals Act, 1996 (Act No. 74 of 1996)RulesSpecial Tribunal Rules30B Execution - Immovable Property |
(1)
| (a) | Subject to the provisions of rule 30C, no writ of execution against the immovable property of any judgment debtor shall be issued unless— |
| (i) | a return has been made of any process issued against the movable property of the judgment debtor from which it appears that the said person has insufficient movable property to satisfy the writ; or |
| (ii) | such immovable property has been declared to be specially executable by the court. |
| (b) | A writ of execution against immovable property shall contain— |
| (i) | a full description of the nature, magisterial district and physical address of the immovable property to enable it to be traced and identified by the sheriff; and |
| (ii) | sufficient information to enable the sheriff to give effect to sub-rule (3) hereof. |
| (2) | The attachment of the immovable property shall be made by any sheriff of the district in which the property is situated, upon a writ. |
(3)
| (a) | Notice of the attachment, shall be served by the sheriff upon the owner of the immovable property and upon the registrar of deeds or other officer charged with the registration of such property, and if the property is occupied by some person other than the owner, also upon such occupier. |
| (b) | Any notice referred to in paragraph (a) shall— |
| (i) | draw attention to the provisions of sub-rule (8)(a)(iii) below; and |
| (ii) | be served according to the provisions of these Rules, except that service upon the registrar of deeds or other officer charged with the registration of immovable property may also be effected by the sheriff by means of a registered letter, duly prepaid and posted, addressed to the officer intended to be served. |
(4)
| (a) | When effecting the attachment, the sheriff may enter buildings or structures on the immovable property in order to ascertain the improvements made to the immovable property, as well as the condition of such improvements: Provided that where the sheriff after reasonable attempts is unable to gain access onto the immovable property or into any building or structure on account of the property, building or structure being locked, the sheriff may use a locksmith to gain entry. |
| (b) | After attachment, any sale in execution shall take place in the district in which the attached immovable property is situated and shall 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 (d) of sub-rule (8) may on good cause shown authorise such sale to be conducted elsewhere and by another sheriff. |
| (c) | Upon receipt of written instructions from the execution creditor to proceed with such sale, the sheriff shall ascertain and record the bonds or other encumbrances which are registered against the attached immovable 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. |
| (5) | Subject to rule 30C and any order made by the Tribunal, 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 of the intended sale to be served upon— |
| (i) | preferent creditors; |
| (ii) | the local authority, if the property is rated; and |
| (iii) | the body corporate, if the property is a sectional title unit, calling upon the aforesaid entities to stipulate within 10 days of a 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 such entities have so stipulated or agreed, or |
| (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) within the time stated in such notice. |
| (6) | The sheriff may by notice served upon any person require such person to deliver up to the sheriff forthwith, all documents in such person’s possession or control relating to the debtor’s title to the said property. |
(7)
| (a) | The sheriff conducting the sale shall appoint a day and place for the sale of the attached immovable property, such day being, except by special leave of a magistrate or tribunal, not less than 45 days after service of the notice of attachment and shall forthwith inform all other sheriffs appointed in the district of such day and place. |
(b)
| (i) | The execution creditor shall, after consultation with the sheriff conducting the sale, prepare a notice of sale containing a short description of the attached immovable property, its improvements, magisterial district and physical address, 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. |
| (ii) | The execution creditor must furnish the sheriff with as many copies of the notice of sale as the sheriff may require. |
| (c) | The execution creditor shall — |
| (i) | publish the notice once in a newspaper circulating daily or weekly in the district in which the attached immovable property is situated and in the Gazette not less than five days and not more than 15 days before the date of the sale; and |
| (ii) | provide the sheriff conducting the sale, by hand, or by facsimile or electronic mail, with one satisfactory photocopy of each of the notices published in the newspaper and the Gazette, respectively. |
| (d) | Not less than 10 days prior to the date of the sale, the sheriff conducting the sale shall forward a copy of the notice of sale referred to in paragraph (b) to every execution creditor who had caused the said immovable property to be attached and to every mortgagee thereof whose address is known and shall simultaneously furnish a copy of the notice of sale to all other sheriffs appointed in that district. |
| (e) | Not less than 10 days prior to the date of the sale, the sheriff conducting the sale shall affix |
| (i) | one copy of the notice on the notice-board of the magistrate’s court or Tribunal of the district in which the attached immovable property is situated, or if the said property is situated in the district where the Tribunal out of which the writ was issued is situated, then on the notice-board of such court; and |
| (ii) | one copy at or as near as may be to the place where the said sale is actually to take place. |
(8)
(a)
| (i) | Not less than 35 days prior to the date of the sale, the execution creditor shall prepare the conditions of sale upon which the attached property is to be sold and shall submit such conditions to the sheriff conducting the sale, for the purposes of settling them. |
| (ii) | In addition to any other terms, the conditions of sale shall include any conditions ordered by the Tribunal. |
| (iii) | Not less than 25 days prior to the date of the sale, any interested party may submit to the sheriff, in writing, further or amended conditions of sale. |
| (iv) | Not less than 20 days prior to the date of the sale, the sheriff shall settle the conditions of sale. |
| (v) | The sale in execution and the conditions of sale shall comply with the provisions of any law relating to auctions, in particular the Consumer Protection Act, 2008 Act No. 68 of 2008, and the Regulations promulgated thereunder. |
(b)
| (i) | The execution creditor shall thereafter supply the said sheriff with three copies of the conditions of sale, one of which shall lie for inspection by interested parties at the office of the sheriff for 15 days prior to the date of the sale. |
| (ii) | The sheriff conducting the sale shall forthwith furnish a copy of the conditions of sale to all other sheriffs appointed in that district. |
| (c) | Not less than 15 days prior to the date of the sale, the sheriff shall serve one copy of the conditions of sale on the judgment debtor. |
| (d) | Not less than 10 days prior to the date of the sale, any interested party may, subject to rule 30C and any order made by the court under the provisions thereof, and upon 24 hours’ notice to all known affected parties, apply to the magistrate of the district in which the attached immovable property is to be sold for any modification of the conditions of sale and the magistrate may make such order thereon, including an appropriate order as to costs. |
| (9) | The execution creditor shall appoint a conveyancer to attend to the transfer of the attached immovable property sold in execution: Provided that the sheriff shall be entitled to appoint a new conveyancer should the conveyancer appointed by the execution creditor not proceed timeously or satisfactorily with the transfer. |
| (10) | Immovable property attached in execution shall be sold by the sheriff through public auction. |
(11)
(a)
| (i) | If the purchaser fails to carry out any obligations due by the purchaser 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 attached and immovable property may be put up for sale again. |
| (ii) | The report shall be accompanied by a notice. |
| (iii) | If the sale is cancelled, the sheriff shall inform the judgment debtor of the cancellation. |
| (b) | Any loss sustained by reason of the purchaser’s default may, on the application of any aggrieved creditor whose name appears on the sheriff’s distribution account, be recovered from the purchaser under judgment of a judge given on a written report by the sheriff, after notice in writing has been given to the purchaser that the report will be laid before a judge for the aforesaid purpose. |
| (c) | If the purchaser is already in possession of the immovable property, the said sheriff may, on notice to affected persons apply to a judge for an order evicting the purchaser or any person claiming to occupy the property through the purchaser or otherwise occupying the property. |
| (12) | Subject to the provisions of rule 30C and sub-rule (5) hereof— |
| (a) | the sale shall be conducted upon the conditions stipulated under sub-rule (8); and |
| (b) | the immovable property shall be sold to the highest bidder. |
(13)
| (a) | All moneys in respect of the purchase price of the immovable property sold in execution shall be paid to the sheriff and the sheriff shall retain such moneys in his or her trust account until transfer has been given to the purchaser. |
| (b) | 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 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. |
| (c) | No amount of the purchase money shall be paid out until the provisions of sub-rule (14) have been complied with. |
(14)
| (a) | After conclusion of the sale, but before preparation by the sheriff of a plan of distribution, the execution creditor or his or her attorney shall provide the sheriff with a certificate of all money paid by the judgment debtor to the execution creditor or his or her attorney after the issue of the writ of execution. |
| (b) |
| (i) | Within 10 days after the date of registration of the transfer, the sheriff shall have prepared a plan of distribution of the proceeds in order of preference, and must forward a copy of such plan to the registrar and to all other sheriffs appointed in that district. |
| (ii) | Immediately thereafter the said sheriff shall give notice to all parties who have lodged writs and to the execution debtor that the plan of distribution will lie for inspection at his or her office and the office of the registrar for 15 days from a date mentioned, and unless such parties signify in writing their agreement to the plan, such plan will so lie for inspection. |
| (c) | After deduction from the proceeds of the costs and charges of execution, the following shall be the order of preference: |
| (i) | Claims of preferent creditors ranking in priority in their legal order of preference; and thereafter |
| (ii) | Claims of other creditors whose writs have been lodged with the sheriff in the order of preference. |
| (d) | Any interested person objecting to the plan must— |
| (i) | before the expiry of the period referred to in paragraph (b)(ii), give notice in writing to the sheriff and all other interested persons of the particulars of the objection; and |
| (ii) | within 10 days after the expiry of the period referred to in paragraph (b)(ii), bring such objection before a judge for review upon 10 days-notice to the sheriff and the said persons. |
| (e) | The judge on review shall hear and determine the matter in dispute and may amend or confirm the plan of distribution or may make such order including an order as to costs as he or she deems appropriate. |
| (f) | If— |
| (i) | no objection is lodged to such plan; or |
| (ii) | the interested parties signify their concurrence therein; or |
| (iii) | the plan is confirmed or amended on review, the sheriff shall, on production of a certificate from the conveyancer that transfer has been given to the purchaser, pay out in accordance with the plan of distribution. |
| (15) | Neither a sheriff nor any person on behalf of the sheriff shall at any sale in execution purchase any immovable property offered for sale either for himself or herself or for any other person. |