THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No 22/2014

In the matter between:

ABSA BANK LTD

APPELLANT

and

JOSEPH FREDERICK SNYMAN

RESPONDENT

Neutral citation:
Absa Bank Ltd v Snyman (22/2014) [2015] ZASCA 67 (20 May
2015).
Coram:

Brand, Cachalia, Shongwe, Wallis et Petse JJA
Heard:

7 May 2015
Delivered:

20 May 2015

Summary: Section 63 of Magistrates’ Courts Act 32 of 1944 – superannuation of
judgment in terms of this section occurs unless actual execution effected within three
years – date of warrant of execution or reissued warrant in terms of Magistrates’
Courts rule 36 – within three year period – of no consequence.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  Western Cape Division of the High Court, Cape Town (Blignaut J
and Davis AJ, sitting as court of first instance):
1 The appeal is upheld.
2 The order of the court a quo in paragraph (ii) is set aside.
3 The question whether the sale in execution took place contrary to the provisions of
s 63 of the Magistrates’ Courts Act 32 of 1944 is referred back to the court a quo.
4 The respondent shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of service of this order upon him at the behest of the appellant’s
attorneys.
5 The appellant shall file an affidavit, strictly limited to the issues regarding (3) within
15 days of receipt of the respondent’s affidavit, or failing which, within 30 days of this
order.
6 The application in the court a quo may be set down on a date to be determined by
the registrar of that court.
7 The costs of appeal shall stand over until finalisation of the matter in the court a
quo. The appellant is granted leave to apply to this court for an order awarding the
costs of appeal in its favour, provided the application for such an order is filed with
the registrar of this court within 21 days of the decision of the court a quo, failing
which there will be no order as to the costs on appeal.
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Brand JA (Cachalia, Shongwe, Wallis et Petse JJA concurring):

[1] The appellant in this appeal is Absa Bank Ltd (Absa) while the respondent is
Mr J F Snyman (Snyman). The subject of their dispute is a house situated at 35
Watsonia Street, Panorama, Robertson in the Western Cape, with the Deeds Office
description of Erf 2866, Robertson (the property). Snyman was the owner of the
property. Technically it was registered in the names of both Snyman and his wife, to

whom he is married in community of property. But since Mrs Snyman was never
joined as a party to these proceedings and Snyman at all times also acted on her
behalf, I shall refer to him as acting, not only for himself, but also as a representative
of his wife.

[2] During 2005 Snyman caused a bond to be registered over the property in
favour of Absa. In terms of the bond, Snyman acknowledged his indebtedness of
R82 000 towards capital owing to Absa and R20 000 in respect of costs, as defined
in the bond. As is usual with bonds of this kind, this one provided that if Snyman
were to default on the payment of any instalment due, Absa would be entitled to
institute proceedings for all amounts outstanding, as well as for an order declaring
the property executable. When Snyman fell into arrears with his bond instalments,
Absa issued summons against him out of the Robertson Magistrates’ Court for an
amount of R89 690.46, together with interest and costs, as well as for an order
declaring the property executable.

[3] Despite personal service of the summons on Snyman and his wife, they
entered no appearance to defend. In consequence, default judgment in accordance
with the terms sought in the summons was granted by the magistrate, Mr H
Folscher, on 18 December 2007. On the same day a warrant of execution was
issued against the property. For some reason not revealed in the papers, the warrant
remained dormant until sometime in 2010. It was then reissued by the clerk of the
Robertson Magistrates’ Court. The exact date of the reissue subsequently proved to
be of some significance. I shall return to that matter in due course.

[4] The reissued warrant of execution was served on Snyman personally on 1
February 2011. As with the summons, this again elicited no response from him. In
the result the property was sold in execution. At the auction sale, which was
attended by Snyman, the property was purchased by Mr E J van Tonder for
R95 000. On 15 December 2011 Van Tonder gave notice to Snyman to vacate the
property. When he failed to do so, Van Tonder brought an application for his eviction
in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE). The application was set down for 9 February 2012. On that day
Snyman, for the first time, opposed the relief sought. At that stage he was

represented by an attorney from the Legal Aid Board. But when the matter was
eventually heard on 16 February 2012, his attorney had in the meantime withdrawn.
The magistrate, Mr Folscher, took the view that Snyman had no defence to the
application, and granted the eviction order which directed Snyman to vacate the
property by 11 May 2012, failing which the sheriff was authorised to evict him on 14
May 2012.

[5] That galvanised Snyman into action. On 14 May 2012 he brought an
application in the Western Cape Division of the High Court in Cape Town for the
review and setting aside of one or more of the decisions of the magistrate. The
notice of motion was signed by Snyman in person. Although the suggestion was that
Snyman had received some help from non-profit aid organisations, I infer from the
way in which his founding papers were drafted, that those representing him were not
legal practitioners with experience of any note. I say this because the papers do not
identify the decisions sought to be set aside, as of course, they should. Nor do they
set out the grounds of review relied upon or the factual basis advanced for those
grounds. Instead, Snyman made wild, unsubstantiated, vexatious and even
defamatory statements against all and sundry. So, for example, he alleged that the
magistrate and the sheriff were racists who conspired with Absa to extract payment
from him pursuant to a bond which he described as entirely forged and fictitious. His
conduct is to be deprecated. Be that as it may, when the matter came before
Blignaut J and Davis AJ in the court a quo, they concluded, however, that in
accordance with a benevolent interpretation of Snyman’s papers, he sought to
review and set aside three orders, to wit: (a) the default judgment of 18 December
2007; (b) the sale in execution of the property on 6 December 2011; and (c) the
eviction order of 16 February 2012.

[6] In due course the court a quo (Davis AJ with Blignaut J concurring) held that
Snyman had failed to make out a case for the review of the default judgment.
Accordingly, para (i) of the court a quo’s order dated 9 September 2013, provided
that the application for the setting aside of the default judgment, was dismissed. On
the other hand, the court held the sale in execution to be null and void, and para (ii)
of its order thus set that sale aside. The result was that Snyman was held not to
have been in unlawful occupation of the property and that the eviction order of 16

February 2012 was bound to be set aside on that ground alone. But, the court a quo
went further. It also held that Van Tonder had in any event failed to satisfy the
requirements of PIE. For this reason too the eviction order was set aside in terms of
para (iii) of the court a quo’s order.

[7] Subsequently, Absa sought leave from the court a quo to appeal against para
(ii) of the order, which pertained to the validity of the execution sale, as well as the
setting aside of the eviction order in terms of para (iii). In the event, the court a quo
granted leave to appeal to this court against para (ii) of the order, but not against
para (iii). Since Snyman did not seek any leave to cross-appeal against the order in
terms of para (i), the issues on appeal were thus confined to those pertaining to the
validity of the execution sale, which was set aside in terms of para (ii).

[8] On appeal, the heads of argument by Snyman were signed and filed by him
personally. But it seems that they had been drafted by the same person who
assisted him in preparing his papers in the court a quo. I say that because these
heads were accompanied by a document entitled ‘Request to Continue as Friend of
Court’ and signed by someone who described himself as Professor Jozana Ka
Mahwanqa of the Human Rights and Public Interest Law Forum in Port Elizabeth. In
this document the signatory averred that he (Ka Mahwanqa) represented Snyman in
the court a quo and therefore sought leave to continue representing him in this court,
‘in terms of the Amicus Curiae principle’. In answer to this document Ka Mahwanqa
was informed, through the registrar of this court, (a) that if he wanted to be admitted
as an amicus curiae, properly so called, he should bring an application in terms of
rule 16 of this court within a stipulated period, and (b), since it appeared that he was
in fact seeking to represent Snyman, he would only be allowed to do so if he was an
admitted advocate or attorney with a right of appearance in this court.

[9] Although there was no response to the registrar’s letter, Ka Mahwanqa made
an appearance at the hearing of this matter and announced that he was representing
Snyman. He informed us that he was a professor of law, but did not respond to the
enquiry as to the university or institution where he held this chair. He also told us that
Snyman was not present in court, but that Snyman did not seek a postponement so
as to enable him to attend. Ka Mahwanqa conceded that he was not an admitted

advocate or attorney with right of appearance in this court. He nonetheless sought
our permission to address us on behalf of Snyman, because he had been allowed to
do so in the court a quo. We then made it plain to him that, whatever happened in
the court a quo, he had no right of appearance and that we could therefore not allow
him to do so. In the result Snyman was not represented in the appeal.

[10] In the heads of argument signed and filed by Snyman, he sought to raise the
correctness of the court a quo’s refusal to set aside the default judgment granted
against him in the magistrates’ court, which is reflected in para (i) of the court’s
order. But I agree with Absa’s argument that this court only has jurisdiction to hear
an appeal against an order of the high court if leave to do so had been granted by
that court or, in the event of a refusal by that court, by this court. The same holds
true of para (iii) of the order. Absent any leave to appeal, we have no jurisdiction to
entertain any argument against it (see eg Newlands Surgical Clinic (Pty) Ltd v
Peninsula Eye Clinic (Pty) Ltd [2015] ZASCA 25 (20 March 2015) para 14). As a
matter of law, our focus must therefore be confined to the order in para (ii).

[11] Central to the court a quo’s reasoning underlying that order stood the
statement in the answering affidavit by the magistrate – who was cited as a
respondent in the review proceedings – that the warrant of execution against the
property was issued on 18 December 2007 and reissued by the clerk of the court on
18 December 2010. Relying on that statement, the court a quo held that the reissued
warrant, on the strength of which the execution sale was held, fell foul of s 63 of the
Magistrates’ Courts Act 32 of 1944 (the Act), read with rules 36(1) and (5) of the
Magistrates’ Courts rules. These enactments provide:
‘63 Execution to be issued within three years
Execution against property may not be issued upon a judgment after three years from the
day on which it was pronounced or on which the last payment in respect thereof was made,
except upon an order of the court in which judgment was pronounced or of any court having
jurisdiction, in respect of the judgment debtor . . . .’
Rule 36 provides in relevant part:
‘Process in execution

36(1) The process for the execution of any judgment for the payment of money, for the
delivery of property whether movable or immovable, or for ejectment shall be by warrant
issued and signed by the registrar or clerk of the court and addressed to the Sheriff.
. . .
(5) The registrar or clerk of the court shall at the request of a party entitled thereto reissue
process issued under subrule (i) without the court having sanctioned the reissue.’

[12] Starting out from these provisions, the court a quo’s reasoning, as appears
from its judgment (paras 47-53), went along the following lines:
‘The record of the default judgment proceedings, read together with the magistrate’s
affidavit, reveals that the default judgment was granted on 18 December 2007 and a warrant
of execution against immovable property was issued on the same day. On 18 December
2010, the clerk of the court reissued the warrant of execution against immovable property,
and the property was attached and sold in execution on the strength of the reissued warrant.
The crisp question, therefore, is whether or not it was competent for the clerk of the court to
reissue the warrant of execution on 18 December 2010 without sanction of the court.
It is clear that section 63 of the Magistrates’ Courts Act operates to prohibit the issue of
process in execution after three years from the date of the judgment, unless authorised by
an order of court sought by the judgment creditor on notice to the judgment debtor. The
question, then, is how the relevant period of three years is to be calculated.
The computation of calendar years is governed by the civil method of computation. (See
Fouche v Mutual Fire and General Insurance Co Ltd 1969 (2) SA 519 (D) at 522H-523B . . .).
This method involves including the first day of the period and excluding the last. When the
civil method of computation is applied to the facts at hand, the result is that the three year
period referred to in section 63 of the Magistrates’ Courts Act commenced on 18 December
2007 and expired at midnight on 17 December 2010.
That being the case, it follows that the default judgment became superannuated at midnight
on 17 December 2010, and the prohibition in section 63 operated with effect from 18
December 2010 to preclude the issue of any process in execution thereof without an order of
court. It was therefore not competent, in my view, for the clerk of the court to reissue the
warrant of execution on 18 December 2010 in terms of rule 36(5), and the reissued warrant
was invalid for non-compliance with section 63 of the Magistrates’ Courts Act . . .
A valid warrant of execution is clearly a pre-requisite for a valid attachment of immovable
property . . . As such, it is an essential formality for a valid sale in execution. The invalidity of
the warrant of execution carries the consequence that the property was not validly attached
and the subsequent sale in execution was therefore a nullity . . . .

[13] Absa’s first challenge to the correctness of this conclusion was aimed at its
factual foundation. In this regard Absa pointed out that, according to the date stamps
of the clerk of the court, which appear on the reissued warrant, it was issued either
on 22 April 2010 or on 8 December 2010. The date referred to by the magistrate in
his affidavit, ie 18 December 2010, does not appear on that document at all. In
addition, it transpires that 18 December 2010 was a Saturday. On the probabilities,
so Absa’s argument went, the date referred to in the affidavit, which formed the sole
basis of the court a quo’s conclusion, was nothing more than a typographical error
and the crucial finding based on that error was therefore incorrect. On the face of it,
the argument appears to be unanswerable. But, on reflection and – as was rightly
and fairly pointed out to us by Absa’s counsel on appeal – the court a quo’s mistake
turns out to be of no consequence, because it was cancelled out, as it were, by the
court’s further mistake in the interpretation of s 63 read with rule 36(5). On the
court’s interpretation of s 63, the period of three years contemplated in the section –
also referred to as the period of superannuation – limits the time period within which
a warrant of execution may be validly issued or reissued. In consequence, the effect
of superannuation may be stopped by the issue of a warrant of execution. Moreover,
so the court obviously concluded, the period of superannuation can be extended –
presumably for another period of three years – by the reissue of a warrant under rule
36(5) as long as the reissue occurs within the three year period.

[14] A number of older cases preceding the Act were also capable of the
interpretation that superannuation – the period of which was then a year and a day –
determined the time during which a warrant of execution may be issued, and that,
once that had happened, superannuation could be avoided by the issue of further
warrants. (see eg Auret v Van Der Berg 1911 CPD 1043 at 1044). Later cases,
however, held that a warrant of execution, even though issued within the stipulated
period, could not save a judgment from superannuation, unless it was acted upon
within a year and a day from date of judgment (see eg Rigg v Strydom 1914 CPD
583; Bezuidenhout v Deyzel 1915 CPD 458 at 460). In the case of a judgment
sounding in money, the result was that the execution sale had to occur within that
period. I agree with the author D E van Loggerenberg of Jones & Buckle The Civil
Practice of the Magistrates’ Courts in South Africa 10 ed (2012) vol 1, in his
commentary on s 63, that the later cases also reflect the correct interpretation of this

section. Purely on the basis of logic, the legislature’s intent could hardly have been
that a judgment creditor can delay execution of a judgment indefinitely as long as he
or she had obtained a warrant of execution within three years and caused it to be
reissued on a regular basis thereafter. Secondly, the legislature must be presumed
to have been aware of the law, as represented by these later decisions, when the
Magistrates’ Courts Act was promulgated in 1944. Thirdly, the Afrikaans text, which
was signed by the executive, renders the position even clearer. It provides:
‘Ten uitvoerlegging teen goedere kan nie uit hoofde van ‘n vonnis geskied na verloop van
drie jaar vanaf die datum waarop dit gefel is . . . nie . . .’
(My emphasis.)

[15] Properly construed, s 63 therefore provides that a judgment sounding in
money becomes superannuated, unless the execution sale takes place within three
years of that judgment. Hence the date on which the warrant of execution is issued,
is of no consequence. It goes without saying that rule 36(5) cannot change the
meaning of s 63 of the Act. It follows that the date of reissue of a warrant under this
rule cannot avoid superannuation once the three year period from date of judgment
elapses. In this context, it is equally of no consequence. Extension can only occur by
order of court, which was admittedly not obtained by Absa in this case. It follows that
the question whether or not the reissue occurred on 18 December 2010 or on an
earlier date, is of no consequence. What is relevant, is the date of the sale in
execution, which was 6 December 2011. This was clearly more than three years
after the date of judgment on 18 December 2007. If this was the end of the matter,
the court a quo would therefore have been correct in finding – albeit for different
reasons – that the reissued warrant, on the strength of which the property was sold
in execution was null and void.

[16] As it happens, however, this is not the end of the matter. Absa’s further
argument was that the court a quo’s reasoning reflects another mistake in that it had
failed to have regard to the alternative date for the commencement of the
superannuation period contemplated by s 63, that is, the date ‘of the last payment in
respect’ of their judgment. It follows that the reissued warrant would still be valid if
the last payment by Snyman, in respect of his bond debt, was made less than three
years prior to 6 December 2011, ie after 5 December 2008. In this regard it is

pertinent, so Absa pointed out, that according to Snyman’s founding affidavit, he still
made payments to Absa in settlement of his bond debt in 2008. It is true, so Absa
argued, that the date during 2008 is not mentioned by Snyman, but since he bore the
onus to establish the facts upon which his review application relied, it was for him to
allege and prove that the last payment was made prior to 5 December 2008.

[17] Although there is obvious merit in Absa’s argument, it left me with a sense of
unease. The reason is that I simply cannot discount the real possibility that the date
of payment was indeed more than three years before the date of the execution sale,
but that the unrepresented Snyman had failed to raise it, since he did not appreciate
its significance. The unpalatable consequence would be that a poor man’s house –
which he had bought in 1997 – would be sold on the strength of a warrant which was
possibly invalid. In addition, during the course of argument with reference to
payments that were made in settlement of the bond debt after the date of judgment,
it became apparent that the amount for which the warrant was reissued in 2010
remained virtually the same as the amount of the original judgment debt in
December 2007. On the face of it, payments made in settlement after 2007 had
therefore not been taken into account. That would be in conflict with the following
statement by D R Harms et al Civil Procedure in the Magistrates’ Courts (2011) at
B36.13 with which I find myself in full agreement:
‘The wording of the warrant may not exceed or vary the scope of the judgment on which it is
founded. If, however, the judgment has been satisfied in part, the warrant must be issued for
the unsatisfied portion only.’

[18] In this light, counsel for Absa fairly conceded that the appropriate order would
be to refer the matter back to the court a quo with the specific direction to determine,
after receiving such further evidence as the parties may wish to present, whether the
sale in execution took place contrary to the provisions of s 63 of the Act. As to the
matter of costs on appeal, I find it appropriate that this should stand over until
proceedings in the court a quo have been finalised.

[19] In the result it is ordered:
1 The appeal is upheld.
2 The order of the court a quo in paragraph (ii) is set aside.

3 The question whether the sale in execution took place contrary to the provisions of
s 63 of the Magistrates’ Courts Act 32 of 1944 is referred back to the court a quo.
4 The respondent shall file an affidavit, strictly limited to the issues regarding (3)
within 15 days of service of this order upon him at the behest of the appellant’s
attorneys.
5 The appellant shall file an affidavit, strictly limited to the issues regarding (3) within
15 days of receipt of the respondent’s affidavit, or failing which, within 30 days of this
order.
6 The application in the court a quo may be set down on a date to be determined by
the registrar of that court.
7 The costs of appeal shall stand over until finalisation of the matter in the court a
quo. The appellant is granted leave to apply to this court for an order awarding the
costs of appeal in its favour, provided the application for such an order is filed with
the registrar of this court within 21 days of the decision of the court a quo, failing
which there will be no order as to the costs on appeal.

_____________________
F D J BRAND
JUDGE OF APPEAL

APPEARANCES:

For the Appellant:

P Coetsee SC and L N Wessels
Instructed by: Sandenbergh Nel Haggard, Bellville.
c/o Spangenberg Zietsman & Bloem, Bloemfontein

For the Respondent:

No appearance

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

20 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Absa Bank Ltd v Snyman (22/2014) [2015] ZASCA 67 (20 May 2015)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) delivered a judgment upholding the
appeal by the appellant and referred the matter back to the court a quo for a
consideration of the issues.

The issue before the SCA was whether the sale in execution took place contrary to
the provisions of s 63 of the Magistrates’ Courts Act 32 of 1944.

The appellant in this appeal is Absa Bank Ltd (Absa) while the respondent is Mr J F
Snyman (Snyman). The subject of their dispute concerned a house situated at 35
Watsonia Street, Panorama, Robertson in the Western Cape, with the Deeds Office

description of Erf 2866, Robertson (the property). Snyman was the owner of the
property.

During 2005 Snyman caused a bond to be registered over the property in favour of
Absa. In terms of the bond, Snyman acknowledged his indebtedness of R82 000
towards capital owing to Absa and R20 000 in respect of costs, as defined in the
bond. Snyman then fell into arrears with his bond instalments. Despite personal
service of the summons on Snyman and his wife, they entered no appearance to
defend. In consequence, default judgment in accordance with the terms sought in
the summons was granted by the magistrate, Mr H Folscher, on 18 December 2007.
On the same day a warrant of execution was issued against the property. The
warrant remained dormant until sometime in 2010. It was then reissued by the clerk
of the Robertson Magistrates’ Court in terms of Magistrates’ Courts rule 36. The
reissued warrant of execution was served on Snyman personally on 1 February
2011. As with the summons, this again elicited no response from him. In the result
the property was sold in execution. When the purchaser brought an application for
the eviction of Snyman from the property, the magistrate took the view that Snyman
had no defence to the application. In consequence, he granted the eviction order
which directed Snyman to vacate the property by 11 May 2012, failing which the
sheriff was authorised to evict him on 14 May 2012. Arising from this, on 14 May
2012 Snyman brought an application in the Western Cape Division of the High Court
in Cape Town for the review and setting aside of one or more of the decisions of the
magistrate.

The high court held that the sale in execution was null and void by reason of the
provisions of s 63 of the Magistrates’ Court Act, and paragraph (ii) of its order thus
set that sale aside. The result was that Snyman was held not to have been in
unlawful occupation of the property and that the eviction order was bound to be set
aside on that ground alone. Subsequently, Absa sought leave from the court a quo
to appeal against paragraph (ii) of the order, which pertained to the validity of the
execution sale.

On appeal, the SCA held that properly construed, s 63 provided that a judgment
sounding in money became superannuated, unless the execution sale took place

within three years of that judgment. Hence the date on which the warrant of
execution was issued, was of no consequence. It therefore went without saying that
rule 36(5) could not change the meaning of s 63 of the Act.

The SCA held further that the date of reissue of a warrant under rule 36 could not
avoid superannuation once the three year period from date of judgment elapsed.
The court stated that an extension could only occur by order of court, which was
admittedly not obtained by Absa in this case. It followed that the question of whether
or not the reissue occurred on 18 December 2010 or on an earlier date, was of no
consequence. What was relevant was the date of the sale in execution, which was 6
December 2011.

In consequence, the SCA found that during the course of argument it became
apparent, with reference to payments that were made in settlement of the bond debt
after the date of judgment that the amount for which the warrant was reissued in
2010 remained virtually the same as the amount of the original judgment debt in
December 2007. Therefore it was clear that payments made in settlement after 2007
had not been taken into account. On this basis Absa fairly conceded that the
appropriate order would be to refer the matter back to the court a quo with the
specific direction to determine whether the sale in execution took place contrary to
the provisions of s 63 of the Act.

~~~ ends ~~~