Absa Bank Ltd v Snyman

The respondent, Mr Snyman, was the owner of a residential property bonded to Absa Bank Ltd. After defaulting on his bond repayments, Absa obtained default judgment against him in the Robertson Magistrates’ Court on 18 December 2007, together with an order declaring the property executable. A warrant of execution was issued the same day but lay dormant until it was reissued in 2010. The property was sold in execution on 6 December 2011 to a third party purchaser, who subsequently obtained an eviction order against Snyman. Snyman then brought review proceedings in the Western Cape High Court to set aside the default judgment, the sale in execution, and the eviction order. The High Court dismissed the challenge to the default judgment but set aside the sale in execution and eviction order on the basis that the warrant of execution contravened section 63 of the Magistrates’ Courts Act 32 of 1944. Absa appealed to the Supreme Court of Appeal against the setting aside of the sale in execution.

The appeal was upheld. The High Court’s order setting aside the sale in execution was itself set aside. The question whether the sale in execution took place contrary to section 63 of the Magistrates’ Courts Act was referred back to the High Court for determination on further affidavits. Costs of appeal were reserved pending finalisation in the High Court.

The decision authoritatively clarifies the interpretation of section 63 of the Magistrates’ Courts Act by confirming that superannuation is avoided only by actual execution within three years, not by the mere issue or reissue of a warrant of execution. It underscores the protection afforded to judgment debtors against stale enforcement and has important implications for creditors, clerks of court, and sheriffs in execution proceedings.