| (1) |
This rule applies whenever an execution creditor seeks to execute against the residential immovable property of a judgment debtor. |
(2)
| (a) |
A Tribunal considering an application under this rule must— |
| (i) |
establish whether the immovable property which the execution creditor intends to execute against is the primary residence of the judgment debtor; and |
| (ii) |
consider alternative means by the judgment debtor of satisfying the judgment debt, other than execution against the judgment debtor’s primary residence. |
| (b) |
The Tribunal shall not authorise execution against immovable property which is the primary residence of a judgment debtor unless the Tribunal, having considered all relevant factors, considers that execution against such property is warranted. |
| (c) |
The registrar shall not issue a writ of execution against the residential immovable property of any judgment debtor unless the Tribunal has ordered execution against such property. |
| (3) |
Every notice of application to declare residential immovable property executable shall be— |
| (a) |
substantially in accordance with Form 2A of Schedule 1 of the High Court Rules; |
| (b) |
on notice to the judgment debtor and to any other party who may be affected by the sale in execution: Provided that the Tribunal may order service on any other party it considers necessary; |
| (c) |
supported by affidavit which shall set out the reasons for the application and the grounds on which it is based; and |
| (d) |
served by the sheriff on the judgment debtor personally: Provided that the Tribunal may order service in any other manner. |
(4)
| (a) |
The applicant shall in the notice of application— |
| (i) |
state the date on which the application is to be heard; |
| (ii) |
inform every respondent cited therein that if the respondent intends to oppose the application or make submissions to the Tribunal, the respondent must do so on affidavit within 10 days of service of the application and appear in court on the date on which the application is to be heard; |
| (iii) |
appoint a physical address at which the applicant will accept service of all documents in these proceedings; and |
| (iv) |
state the applicant’s postal, facsimile or electronic mail address where available. |
| (b) |
The application shall not be set down for hearing on a date less than five days after expiry of the period referred to in paragraph (a)(ii). |
| (5) |
Every application shall be supported by the following documents, where applicable, evidencing: |
| (a) |
the market value of the immovable property; |
| (b) |
the local authority valuation of the immovable property; |
| (c) |
the amounts owing on mortgage bonds registered over the immovable property; |
| (d) |
the amount owing to the local authority as rates and other dues; |
| (e) |
the amounts owing to a body corporate as levies; and |
| (f) |
any other factor which may be necessary to enable the Tribunal to give effect to sub-rule (8): |
Provided that the Tribunal may call for any other document which it considers necessary.
(6)
| (a) |
A respondent, upon service of an application referred to in sub-rule (3), may— |
| (i) |
oppose the application; or |
| (ii) |
oppose the application and make submissions which are relevant to the making of an appropriate order by the Tribunal; or |
| (iii) |
without opposing the application, make submissions which are relevant to the making of an appropriate order by the Tribunal. |
| (b) |
A respondent referred to in paragraph (a)(i) and (ii) shall |
| (i) |
admit or deny the allegations made by the applicant in the applicant’s founding affidavit; and |
| (ii) |
set out the reasons for opposing the application and the grounds on which the application is opposed. |
| (c) |
Every opposition or submission referred to in paragraphs (a) and (b) shall be set out in an affidavit. |
| (d) |
A respondent opposing an application or making submissions shall, within 10 days of service of the application— |
| (i) |
deliver the affidavit referred to in paragraph (c); |
| (ii) |
appoint a physical address at which documents may be served upon such respondent; and |
| (iii) |
state the respondent’s postal, facsimile or electronic mail address where available. |
| (7) |
The registrar shall place the matter on the roll for hearing by the Tribunal on the date stated in the notice of application. |
| (8) |
The Tribunal considering an application under this rule may— |
| (a) |
of its own accord or on the application of any affected party, order the inclusion in the conditions of sale, of any condition which it may consider appropriate; |
| (b) |
order the furnishing by— |
| (i) |
a municipality of rates due to it by the judgment debtor; or |
| (ii) |
a body corporate of levies due to it by the judgment debtor; |
| (c) |
on good cause shown, condone— |
| (i) |
failure to provide any document referred to in sub-rule (5); or |
| (ii) |
delivery of an affidavit outside the period prescribed in sub-rule (6)(d); |
| (d) |
order execution against the primary residence of a judgment debtor if there is no other satisfactory means of satisfying the judgment debt; |
| (f) |
postpone the application on such terms as it may consider appropriate; |
| (g) |
refuse the application if it has no merit; |
| (h) |
make an appropriate order as to costs, including a punitive order against a party who delays the finalisation of an application under this rule; or |
| (i) |
make any other appropriate order. |
(9)
| (a) |
In an application under this rule, or upon submissions made by a respondent, the Tribunal must consider whether a reserve price is to be set. |
| (b) |
In deciding whether to set a reserve price and the amount at which the reserve is to be set, the Tribunal shall take into account— |
| (i) |
the market value of the immovable property; |
| (ii) |
the amounts owing as rates or levies; |
| (iii) |
the amounts owing on registered mortgage bonds; |
| (iv) |
any equity which may be realised between the reserve price and the market value of the property; |
| (v) |
reduction of the judgment debtor’s indebtedness on the judgment debt and as contemplated in subrule (5)(a) to (e), whether or not equity may be found in the immovable property, as referred to in subparagraph (iv); |
| (vi) |
whether the immovable property is occupied, the persons occupying the property and the circumstances of such occupation; |
| (vii) |
the likelihood of the reserve price not being realised and the likelihood of the immovable property not being sold; |
| (viii) |
any prejudice which any party may suffer if the reserve price is not achieved; and |
| (ix) |
any other factor which in the opinion of the Tribunal is necessary for the protection of the interests of the execution creditor and the judgment debtor. |
| (c) |
If the reserve price is not achieved at a sale in execution, the Tribunal must, on a reconsideration of the factors in paragraph (b) and its powers under this rule, order how execution is to proceed. |
| (d) |
Where the reserve price is not achieved at a sale in execution, the sheriff must submit a report to the Tribunal, within 5 days of the date of the auction, which report shall contain— |
| (i) |
the date, time and place at which the auction sale was conducted; |
| (ii) |
the names, identity numbers and contact details of the persons who participated in the auction; |
| (iii) |
the highest bid or offer made; and |
| (iv) |
Any other relevant factor which may assist the court in performing its function in paragraph (c). |
| (e) |
The Tribunal may, after considering the factors in paragraph (d) and any other relevant factor, order that the property be sold to the person who made the highest offer or bid. |
Stamp Duties Act, 1968 (Act 77 of 1968)
