Online Reporter
Trust Maanda
Legal Position
ONCE the judgment debtor has made the payments, there is no need to proceed with the sale.
The causa for the judicial sale will be extinguished. It is trite that the Messenger of Court cannot proceed with a sale as soon as funds sufficient to pay the judgment debt and costs have been raised.
This was affirmed in Diesel Technical (Pvt) Ltd v Florenfield Mining (Pvt) Ltd & Ors HH 340/18 at p 3, where KWENDA J said: “First Respondent submitted that it received confirmation of receipt of funds in its bank account “..during the sale” but it was “..too late”. Once again, the submission is unconvincing. The Sheriff does not proceed with an execution sale as soon as funds sufficient to pay the judgment debt and costs have been raised by the judgment debtor. See r 340 of the High Court rules: “A sale in execution shall be stopped as soon as sufficient money has been raised to satisfy the warrant and costs of sale.” (my emphasis)
When the creditor duly informs the Deputy Sheriff of the payment of the amount due and instructs him to stop any further proceedings, the sheriff should not proceed with the sale.
The funds for the judgment debt and costs having been raised and the Deputy Sheriff or Messenger of Court duly informed, it will be callous and absurd for him or her to proceed with the sale as if nothing had happened. There will no longer be any legal cause for the sale in execution once the funds for the judgment debt and costs have been raised and paid.
Proceeding with a sale in such circumstances will be unlawful.
The Deputy Sheriff or Messenger of Court executes a court order on the instructions of the judgment creditor. He or she acts on the instructions of the judgment creditor to attach and sell in execution on behalf of the judgment creditor.
He/She acts as an agent of the judgment creditor. As an officer of the court, once these instructions to execute have been withdrawn, that should also put an end to his mandate.
The Messenger of Court will be clearly acting on a frolic of his/her own and as he/she cannot not defy the instructions from the instructing judgment creditor’s lawyers to stop any further execution.
The other ground for the challenge against a sale can be that the property was sold at an unreasonably low price.
The property has to be valued, properly advertised and sold at a reasonable price. There must be a valuation of the assets at the time of the attachment. If that does not happen, the sale will be a nullity.
The Messenger of Court is not required to attach all assets of the judgment debtor, but only such assets as will satisfy the debt and costs.
The rules, in peremptory terms, require that the Messenger of Court conduct a valuation of the assets of the judgment debtor at the time of the attachment.
Thus, Order 26 rule 6(1)(d) of the Magistrates Court (Civil) Rules, 2019, states as follows: “6.(1) The Messenger shall, upon receiving a warrant directing him or her to levy execution on movable property –
…
(d) if the judgment debt and costs are not paid in full, make an inventory and valuation of the property pointed out to him or her or if the debtor does not point out property, make an inventory and valuation of so much of the movable property belonging to the debtor as he or she thinks sufficient to satisfy the warrant.”
The Messenger of Court has no choice, but to act to the letter. The failure to do the inventory and a valuation, makes the attachment invalid.
The rules, not only require that the messenger proceed with an attachment, but also require consideration of the rights and interests of the judgment debtor. The debtor’s property must not be disposed of at any ridiculous price. The inventory and the valuation are meant to protect the judgment debtor from only losing that which makes the judgment creditor recover the judgment debt and costs, and nothing else.
The rules are promulgated in order to protect, not only the interests of the creditor, but the debtor as well. The reason is not to dissipate or to destroy the debtor, but to go to the extent where the debt is paid and if there is excess, it should be paid to the debtor.
The Messenger of Court cannot dispose of an item of value without knowing its value, without knowing how much it can fetch on the market albeit within the realm of forced sale.
The attached goods must not be disposed of in a manner that disadvantages the debtor. The rules protect it.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected]
