IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE No. CCT74/03
In the matter between :
MAGGIE JAFTHA Appellant and
STEPHANUS SCHOEMAN & EIGHT OTHERS Respondents AND
CHRISTINA VAN ROOYEN Appellant and
JACOBUS STOLTZ & EIGHT OTHERS Respondents
APPELLANTS’ FURTHER SUBMISSIONS
1. During the hearing of this matter, counsel for the appellants undertook, pursuant to certain questions raised by this Honourable Court, to file further submissions as to whether any amendments might be required to the Magistrates’ Courts Rules of Court in the event of the appellants being successful in the relief prayed for and, if so, what those amendments might be.
2. In preparing this submission, appellants’ representatives had regard to the following rules:
2.1 Rule 36 : process in execution
2.2 Rule 37 : second or further warrants or emoluments attachment orders or garnishee orders
2.3 Rule 39 : general provisions regarding execution
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2.4 Rules 41 and 42 : execution against movable property 2.5 Rule 43 : execution against immovable property
3. In the respectful submission of appellants, none of the rules need to be amended in the event of appellants being successful in obtaining the relief prayed for, as the rules would have to be read subject to the provisions of the Magistrates’ Courts Act 32 of 1944.
However, it would be of assistance to practitioners in clarifying the procedures to be followed in executing against immovable property if amendments were made to three of the provisions of Rule 36. The relevant provisions, and suggestions for their amendment, are set out below.
4. Rule 36(2)
To be amended by the addition of the following :
“Any person suing out a warrant of execution against immovable property must : f
t
(a) certi y that the proviso to section 66(1)(a) does not apply; or
(b) deliver to the clerk of the court a true copy of the order made by the court in terms of hat proviso, authorising the sale of the judgment debtor’s immovable property”.
5. Rule 36(5)
To be amended by the addition of the following :
“…; provided that, in any case where the proviso to section 66(1)(a) of the Act applies, the sanction of the court must be obtained for any reissue”.
6. Rule 36(7)
To be amended by the addition of the following :
3 Between the words “default” and “process” in the first line :
“…, and except in a case where the proviso to section 66(1)(a) of the Act applies,”
DATED AT CAPE TOWN this 28th day of MAY 2004.
M L WALTON
Attorney for Appellant 19 Rambler Road DIEP RIVER
c/o Legal Resources Centre 7th floor, Bram Fischer House 25 Rissik Street
Johannesburg
(Ref. Ms R Mathabathe) Tel : 011-836 9831
S P KAHANOVITZ Attorneys for Appellant Legal Resources Centre 7th floor, Greenmarket Place 54 Shortmarket Street CAPE TOWN
(S P Kahanovitz)
c/o Legal Resources Centre 7th floor, Bram Fischer House 25 Rissik Street
Johannesburg (Ref. Ms R Mathabathe) Tel. 011-836 9831
TO : THE STATE ATTORNEY
Respondent’s Attorney
Liberty Life Centre
22 Long Street
CAPE TOWN
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(Ref. Mr Gava)
AND TO : THE REGISTRAR OF THE ABOVE HONOURABLE COURT
