| (1) |
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 subrule (2). |
(2)
| (a) |
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. |
| (b) |
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. |
| (c) |
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. |
| (3) |
After the attachment of immovable property the sheriff shall ascertain and record whether the property is subject to any claim preferent 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. |
| (4) |
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. |
| (5) |
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. |
(6)
| (a) |
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. |
| (b) |
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. |
| (c) |
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. |
| (d) |
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. |
| (e) |
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. |
(7)
| (a) |
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. |
| (b) |
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. |
| (c) |
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. |
| (8) |
The execution creditor may appoint the conveyancer for the purposes of transfer of immovable property sold in execution. |
(9)
| (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. |
| (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. |
| (ii) |
A notice in terms of paragraph (a) shall lapse if in fact the services of an auctioneer are not obtainable. |
| (iii) |
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 surplus such deposit shall, as far as may be necessary, be applied in payment of the auctioneer's fees and expenses. |
| (c) |
If two or more notices in terms of paragraph (a) are given, the first shall have the preference. |
| (10) |
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. |
| (11) |
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. |
| (12) |
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. |
| (13) |
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. |
| (a) |
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. |
| (b) |
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). |
| (c) |
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 |
| (iii) |
the claims of creditors secured in respect of that property in their legal order of preference. |
| (d) |
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. |
| (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. |
| (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 |
| (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.
| (h) |
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). |
| (15) |
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. |
Civil Aviation Act, 2009
