Handover Procedure
Conditions of Sale
Execution of Movables & Immovables
Moveable Property Auctions
Moveable sheriffs auctions are regulated by Rule 45 and 42 of the High Court and Magistrates Court Acts respectively.
The underlying principles and legal requirements remain the same except that the requirements for advertising are slightly different.
When auctioning movable items the sheriff does so in terms of the Acts and Rules that regulate the auctioning and is further subjected to the requirements of the Consumer Protection Act that requires additional functions and limitations that should be applied.
The requirements of the Rules should be strictly adhered to and sheriffs should scrutinise the correctness of advertisements and placing of Notices of sale. Sheriffs should be satisfied that all requirements of the Rules have been satisfied before conducting the auction, however sheriffs are now required to conduct their sales in terms of the new Consumer Protection Act.
Sheriffs Sales in Execution auctions have a few very important factors that are not present when it is compared with privately mandated auctions
* Sheriffs auctions are forced sales and the defendant is never a willing participant.
* Private auctions are willing seller willing buyer contracts and are very seldom cancelled.
* The private auctioneering trade have budget structures that incorporate sufficient advertising and promotion financing while sheriffs are reliant on a strictly controlled and limited procedure that is governed by rules which are normally enforced by the execution creditor and its lawyer in such a way as to limit expenses as far as possible. The Sheriff does therefore not have any additional funding available for this marketing strategy and these auctions are therefore poorly advertised.
* The defendant has the right to sort out his problem at any stage and the auction may be cancelled at any stage prior to the advertised date and time.
* This makes these auctions unreliable and are mostly attended by bargain hunters who are prepared to deal with the limitations of sheriffs legal auctions
* Private auctions are not regulated by Court Rules and in contrast are well advertised and are seldom cancelled.
Interpleader Matters
What is the meaning of interpleader?
Interpleader is a kind of procedure whereby a person in possession of property not being his own, and being claimed from such person (possession) by two or more other persons (so called claimants), by which the matter can be brought to court for adjudication over ostensibly valid and enforceable competing claims over the property.
Magistrate’s Court Interpleader Procedure
Supreme Court Interpleader Procedure
The interpleader procedures in the High Court are controlled and regulated by Rule 58 of the Supreme Court Act 59 of 1959.
As opposed to the Magistrates Court Rules, no provision is made for a specific form which the interpleader notice has to take;It is clear from Rule 58, however, that the intepleader notice should at least contain a few characteristics, normally that (a) the sheriff has the rights of an apllicant(b) the judgment creditor also has rights of a claimant;© (i) money:(ii) things capable of being delivered;and(iii) claims to immovable property should be dealt with in a particular way.
Since sheriffs have been obliged to keep a trust account, some Registrars prefer that, in the case of claims to money, the sheriff keeps the money in trust and then tenders the money to the Registrar as in the case of claims to a thing capable of being delivered.
In addition, the notice
(a) must state the nature of liability, property or claim in dispute;(b) must call upon the claimants to lodge particulars of their claims within the period stated in the notice, namely at least 15 days after service thereof;© state that at a later date, namely at least 15 days after the date mentioned in the notice for submission of claims, the applicant will apply to the court for a decision as to his or her liability or the validity of the various claims.
The interpleader notice must be accompanied by an affidavit in which the applicant undertakes that he or she
(a) will have no interest in the subject matter of the dispute other than to cover his or her costs therefrom;
(b) is not in collusion with any of the claimants;© is willing to treat the subject matter of the dispute as the court may order.
(Rule 58 (5) and (6) sets out the Court’s reaction if a claimnat defaults after delivery of the interpleader notice or if he or she delivers particulars of his or her claim and has appeared before the Court)
The issuing of an interpleader notice suspends proceedings in an action, pending the decision of the interpleader case, unless the Court orders otherwise at the request of any other party.
As a result of the high costs of litigation in the High Court, a sheriff should exercise extreme caution in issuing any interpleader notice in order to prevent any possible liabilty on his or her part.
A date for a hearing should therefore be set with care and taking into consideration
(a) the rules of the different provincial divisions of the High Court;
(b) recess periods of the High Court;© the court roll- liaison with the Registrar of the relevant Court must take place:
(d) the provisions of Rule 58 (3) (b) and
(e) the time needed for delivery of the interpleader notices.
The case must be placed on the roll in the proper manner and in good time.
