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Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Regulations

Rules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa

41. Execution against movable property

 

(1)        

(a) The sheriff shall, upon receiving a warrant directing him or her to levy execution on movable property, repair to the residence, place of employment or business of the execution debtor or to another place pointed out by the execution creditor where movable property is to be attached as soon as circumstances permit, and there demand payment of the judgment debt and costs or else require that so much movable property be pointed out as the said sheriff may deem sufficient to satisfy the warrant, and if such last-mentioned request be complied with the sheriff shall make an inventory and valuation of such property.
(b) If the property pointed out in terms of paragraph (a) is insufficient to satisfy the warrant, the sheriff shall nevertheless proceed to make an inventory and valuation of so much movable property as may be pointed out in part execution of the warrant.
(c) If the execution debtor does not point out any property as required in terms of subrule (1), the sheriff shall immediately make an inventory and valuation of so much of the movable property belonging to the execution debtor as he or she may deem sufficient to satisfy the warrant or of so much of the movable property as may be found in part execution of the warrant.
(d) If on demand the execution debtor pays the judgment debt and costs, or part thereof, the sheriff shall endorse the amount paid and the date of payment on the original and copy of the warrant, which endorsement shall be signed by him or her and counter-signed by the execution debtor or his or her representative.

 

(2) So far as may be necessary to the execution of any warrant referred to in subrule (1), the sheriff may open any door on any premises, or of any piece of furniture, and if opening is refused or if there is no person there who represents the person against whom such warrant is to be executed, the sheriff may, if necessary, use force to that end.

 

(3) The sheriff shall exhibit the original warrant of execution and shall hand to the execution debtor or leave on the premises a copy thereof.

 

(4) As soon as the requirements of this rule have been complied with by the sheriff, the goods inventoried by him or her shall be deemed to be judicially attached.

 

(5) The sheriff shall hand a copy of an inventory made under this rule, signed by himself or herself to the execution debtor or leave the same on the premises, which copy shall have subjoined thereto a notice of the attachment.

 

(6) Where specie and documents are found and attached, the number and kinds thereof shall be specified in the inventory and any such specie or documents shall thereupon be sealed and removed to the office of the sheriff where it shall be safely stored.

 

(7)        

(a) The execution creditor or his or her attorney shall, where movable property, other than specie or documents, has been attached, after notification of such attachment, instruct the sheriff in writing, whether the property shall be removed to a place of security or left upon the premises in the charge and custody of the execution debtor or in the charge and custody of some other person acting on behalf of the sheriff: Provided that the execution creditor or his or her attorney may, upon satisfying the registrar or clerk of the court, who shall endorse his or her approval on the document containing the instructions, of the desirability of immediate removal upon issue of the warrant of execution, instruct the sheriff in writing, to remove immediately from the possession of the execution debtor all or any of the articles reasonably believed by the execution creditor to be in the possession of the execution debtor.
(b) In the absence of any instruction under paragraph (a), the sheriff shall leave the movable property, other than specie or documents, on the premises and in the possession of the person in whose possession the said movable property is attached.
(c) Where a sheriff is instructed to remove the movable property, he or she shall do so without any avoidable delay, and he or she shall in the mean time leave the same in the charge or custody of some person who shall have the charge or custody in respect of the goods on his or her behalf.
(d) Any person in whose charge or custody movable property which has been attached, has been left, shall not use, let or lend such property, or permit it to be used, let or lent, nor shall he or she in any way do anything which will decrease its value and, if the property attached shall have produced any profit or increase, the custodian shall be responsible for any such profit or increase in like manner as he or she is responsible for the property originally attached.
(e) If a person in whose charge or custody movable property has been left, other than the execution debtor, makes a default in his or her duty he or she shall not be entitled to recover any remuneration for his or her charge and custody.

(f)        

(i) Unless an order of court is produced to the sheriff requiring him or her to detain any movable property under attachment for such further period as may be stipulated in such order, the sheriff shall, if a sale in respect of such property is not pending, release from attachment any such property which has been detained for a period exceeding four months.
(ii) If such order was made on application made ex parte, such order shall not be subject to confirmation.
(iii) In the event of a claimant lodging an interpleader claim with the sheriff in accordance with rule 44, the period of four months referred to in paragraph (i) shall be suspended from the date on which the claimant delivers his or her affidavit to the sheriff until the final adjudication of the interpleader claim, including any review or appeal in respect of such interpleader claim.

(8)        

(a) Any movable property sold in execution of process of the court shall be sold publicly and for cash by the sheriff who removed the goods in terms of subrule (7)(b) or, with the approval of the magistrate, by an auctioneer or other person appointed by the sheriff, to the highest bidder at or as near to the place where the same was attached or to which the same had been so removed as aforesaid as may be advantageous for the sale thereof.
(b) The execution creditor shall, after consultation with the sheriff, prepare a notice of sale and furnish two copies thereof to the sheriff in sufficient time to enable one copy to be affixed not later than 10 days before the day appointed for the sale on the notice board or door of the court-house or other public building in which the said court is held and the other at or as near as may be to the place where the said sale is actually to take place.
(c) If in the opinion of the sheriff the value of the goods attached exceeds R5 000 he or she shall indicate some local or other newspaper circulating in the district and require the execution creditor to publish the notice of sale in that newspaper not later than 10 days before the date appointed for the sale in addition to complying with paragraph (b) and to furnish him or her with a copy of the edition of the paper in which the publication appeared not later than the day preceding the date of sale.

 

(9) The day appointed for a sale in execution shall be not less than 15 days after attachment: Provided that where the goods attached are of a perishable nature, or with the consent of the execution debtor, the court may, upon application, reduce any period referred to in this subrule or subrule (8) to such extent and on such conditions as it may deem fit.

 

(10) A sale in execution shall be stopped as soon as sufficient money has been raised to satisfy the said warrant and any warrant referred to in rule 39(2) and the costs of the sale.

 

(11)        

(a) Should the sheriff have a balance in hand after satisfaction of the claim of the execution creditor and of all warrants of execution lodged with him or her on or before the day immediately preceding the date of the sale and of all costs he or she shall pay the same to the execution debtor if he or she can be found, otherwise he or she shall pay such balance into court.
(b) The balance paid into court in terms of paragraph (a), if not disposed of before the expiration of three years, shall be paid into the State Revenue Fund after three months' notice of such intention has been given to the persons concerned, whereafter any application for the refund of such balance shall be directed to the State Revenue Fund by a person concerned.