Menqa & Another v Markom & Others

Markom purchased and occupied a residential property in Maitland as his family home. A default judgment for damages was granted against him in the magistrate’s court arising from a personal injury claim by a former tenant. Without Markom’s knowledge, a warrant of execution was issued by the clerk of the magistrate’s court and the property was sold in execution in November 2003. The sale occurred without judicial oversight. Menqa purchased the property at the sale in execution and later sold it to Roux. Markom challenged the sale, contending that it was invalid because the warrant of execution was issued without judicial supervision as required by constitutional principles established in Jaftha v Schoeman. The Cape High Court declared the sale in execution and subsequent sales null and void, leading to this appeal.

The appeal partially succeeded. The confirmation of the High Court’s order directing re-registration of the property in Markom’s name was set aside. The declarations that the sale in execution and all subsequent sales were null and void, the interdict against transfer, and the suspension of execution of the judgment were upheld. No order was made as to the costs of appeal.

This case affirms that sales in execution of residential property conducted without judicial oversight are invalid and that s 70 of the Magistrates’ Courts Act does not protect purchasers where the execution process violates constitutional rights. It reinforces the retrospective application of Jaftha v Schoeman and underscores the principle of legality in execution proceedings affecting the right of access to adequate housing.