Campbell v Botha and Others

The appellant purchased and became the registered owner of Erf 1115 Sea Vista while still a minor. Due to an incorrect postal address recorded by the municipality, he did not receive notices regarding unpaid municipal rates. The Kouga Municipality sued him in the magistrates’ court for arrear rates, wrongly citing him as an adult and effecting substituted service by newspaper publication. A default judgment was granted while he was still a minor. A warrant of execution was issued, but the warrant and notice of attachment were never served on or brought to the attention of the appellant, nor properly published. The sheriff nonetheless sold the property at a purported sale in execution. The property passed through several subsequent purchasers, was improved, and bonded. Years later, the appellant discovered the sale, successfully had the judgment rescinded as void ab origine due to his minority, and sought a declaration that he remained the owner because there had been no valid sale in execution.

The appeal succeeded with costs. The order of the High Court was set aside and replaced with a declaration that the appellant is and always remained the owner of Erf 1115 Sea Vista, and that he did not lose ownership through the purported sale in execution. The remaining relief was postponed for later determination. The first, second, third and fifth respondents were ordered to pay the costs relating to the relief granted.

The case authoritatively clarifies that section 70 of the Magistrates’ Courts Act does not protect transactions where there was no attachment in execution. It reinforces that a valid sale in execution requires both a judgment and proper attachment, and that failure to attach immovable property renders any subsequent sale a nullity. The decision strengthens procedural safeguards in execution proceedings and protects property owners against unlawful dispossession.