Case No 275/1997

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

In the matter of:

DONAL PATRICK HOBAN
Appellant

and

ABSA BANK LIMITED t/a UNITED BANK
First Respondent

THE REGISTRAR OF DEEDS, PRETORIA
Second Respondent

THE SHERIFF,  SUPREME COURT,
SANDTON
Third Respondent

LINDA HOWELLS (formerly HOBAN)
Fourth Respondent

STAND 14 RIVERSIDE CC
Fifth Respondent

CORAM:  MAHOMED CJ,  HOWIE,  OLIVIER JJA,  FARLAM and
MADLANGA AJJA.

DATE OF HEARING:    4 March 1999

DATE OF DELIVERY    19 March 1999

Execution - Immovable Property - ADays@ in Rule 46 (7) (c).

J U D G M E N T

/HOWIE JA:. . .

HOWIE JA:
[1] 
The  home of appellant and his ex-wife was the subject of a
sale in execution at the instance of the first respondent bank.   The sale
was arranged for Friday 22 April 1994.   In terms of rule 46 (7) (c) of the
Uniform Rules as it read then (it has since been amended) the sale had to
be advertised in locally circulating newspapers

Anot less than three days and not more than five days@

before the sale date.   It was advertised on the preceding Friday.   The
sale took place and the property was sold.
[2] 
If Adays@ in the subrule meant  calendar days then the
advertisements were published more than five days before the sale, in
conflict  with the requirement in question.   If Adays@meant Acourt days@,
as defined in rule 1, then the sale was advertised on the fifth preceding
court day in compliance with  the requirement concerned.
[3] 
Contending for non-compliance, appellant applied in the

High Court at Johannesburg for orders i a setting aside the sale as invalid
and affording concomitant relief.   The Court (Tuchten AJ) found that the
advertisements failed to comply with  subrule (7)(c) but held that this did
not invalidate the sale.   For that and other reasons the application was
dismissed.  With the learned Judge=s leave appellant contests such
dismissal.
[4] 
If there was compliance with the subrule then  the appeal
must fail.
[5] 
In holding that there was non-compliance with subrule
(7)(c) the Court below relied on the decision in First Consolidated
Leasing Corporation Ltd. v Theron 1974 (4) SA 244 (T), preferring it to
the decision in Röntgen v Reichenberg 1984 (2) SA 181 (W).   In the
former case, which dealt with subrule (7)(d), Eloff J held that the word
Adays@ in that paragraph meant calendar days.  In the Röntgen case,
concerning subrule (7)(c), it was decided by Coetzee J that Adays@ meant
court days.

[6] 
Rule 1 is the definition provision in the Rules or, to use a
term sometimes employed, the interpretation provision.  It says, as it did
at the relevant time:

AIn these rules and attached forms unless the context
otherwise indicates C
. . .
>court day= shall mean any day other than a Saturday, Sunday or
Public Holiday, and only court days shall be included in the
computation of any time expressed in days prescribed by these
rules or fixed by any order of court . . .@
[7] 
Rule 46 is entitled AExecution - Immovables@ and it is
appropriate for present purposes to quote the relevant provisions as they
read in 1994:

A
(1)  A writ of execution against immovable property
shall contain a full description of the nature and situation
(including the address) of the immovable property to enable
it to be traced and identified by the sheriff . . .
(2)  An attachment shall be made by the sheriff of the
district in which the property is situate or by the sheriff of
the district in which the office of the registrar of deeds or

other officer charged with the registration of such property
is situate, upon a writ as near as may be in accordance with
Form 20 of the First Schedule.
(3)  The mode of attachment of immovable property
shall be by notice in writing by the sheriff served upon the
owner thereof, and upon the registrar of deeds or other
officer charged with the registration of such immovable
property . . .
(4) After attachment, any sale in execution shall take
place in the district in which the attached property is situate
and be conducted by the sheriff of such district . . .
. . .
(7)
(a) The sheriff shall appoint a day and
place for the sale of such property, such
day being, except by special leave of a
magistrate, not less than one month
after
service
of
the
notice
of
attachment.

(b) The execution creditor shall, after
consultation with the sheriff, prepare a notice
of sale containing a short description of the
property, its situation and street number, if
any, the time and place for the holding of the
sale and the fact that the conditions may be
inspected at the office of the sheriff, and he
shall furnish the sheriff with as many copies
of the notice as the latter may require.

(c) The deputy sheriff shall indicate two
suitable  newspapers (whenever possible one
in each of the official languages) circulating in

the district in which the property is situated
and require the execution creditor to publish
the said notice once in each of the said
newspapers, not less than three days and not
more than five days and in the Government
Gazette not later than two weeks before the
date appointed for the sale and to furnish him,
not later than the day prior to the date of the
sale, with one copy of each of the said
newspapers and with the number of the
Gazette in which the notice appeared.

(d) Not less than ten days prior to the date of
the sale, the sheriff shall forward by registered
post a copy of the notice of sale referred to in
paragraph (b) above to every judgment
creditor who had caused the said immovable
property to be attached and to every
mortgagee thereof whose address is known.

(e) Not less than ten days prior to the date of
the sale, the sheriff shall affix one copy of the
notice on the notice-board of the magistrate=s
court of the district in which the property is
situate, or if the property be situate in the
district in which the court out of which the
writ issued is situate, then on the notice-board
of such  court, and one copy at or as near as
may be to the place where the said sale is
actually to take place.

(8)
(a) The conditions of sale shall, not less than
20 days prior to the date of the sale, be
prepared by the execution creditor as near as
may be in accordance with Form 21 of the
First Schedule, and the said conditions shall
be submitted to the sheriff to settle them.  The
execution creditor shall thereafter supply the

sheriff with two copies of the conditions of
sale, one of which shall lie for inspection by
interested parties at his office.

(b) Any interested party may, not less than 10
days prior to the date of the sale, upon twenty-
four hours= notice to the execution creditor
and the bondholders apply to the magistrate of
the district in which the property is to be sold
for any modification of the conditions of sale
and the magistrate may make such order
thereon, including an order as to costs, as to
him may seem meet.

. . .

(11) If the purchaser fails to carry out any of his
obligations under the conditions of sale the sale may be
cancelled by a judge summarily on the report of the sheriff
after due notice to the purchaser, and the property may
again be put up for sale, and the purchaser shall be
responsible for any loss sustained by reason  of his default,
which loss may, on the application of any aggrieved
creditor whose name appears on the sheriff=s distribution
account, be recovered from him under judgment of the
judge pronounced summarily on a written report by the
sheriff, after such purchaser shall have received notice in
writing that such report will be  laid before the judge for
such purpose; and, if he is already in possession of the
property, the sheriff may, on 10 days= notice, apply to a
judge for an order ejecting him or any person claiming to

hold under him therefrom.
. . .
. . .
(14) (a) The sheriff shall not pay out to the creditor
the purchase money until transfer has been
given to the purchaser, but upon receipt
thereof he shall forthwith pay into the deposit
account of the magistrate of the district all
moneys received in respect of the purchase
price.

(b) The sheriff shall as soon as possible after
the sale prepare in order of preference, as
hereinafter provided, a plan of distribution of
the proceeds and shall forward a copy of such
plan to the registrar of the court.  Immediately
thereafter the sheriff shall give notice by
registered post to all parties who have lodged
writs and to the execution debtor that the plan
will lie for inspection for 15 days from a date
mentioned at his office and at the office of the
registrar, and unless such parties shall signify,
in writing, their agreement to the plan, such
plan shall so lie  for inspection.

(c) After deduction from the proceeds of the

costs and charges of execution, the following
shall be the order of preference:
(i)
the claims of preferent
creditors
ranking
in
priority in their legal order
of
preference;
and
thereafter
(ii)
the
claims
of
other
creditors whose writs have
been lodged with the
sheriff
in
order
of
preference appearing from
sections ninety-six and
ninety-nine
to
one
hundred
and
three
(inclusive)
of
the
Insolvency Act, 1936 (Act
No 24 of 1936) as
amended.

(d) Any interested person objecting to such
plan shall, within five days of the expiry of the
period referred to in paragraph (b) of this sub-
rule give notice in writing to the sheriff and all
other interested persons of the particulars of
his objection and shall bring such objection
before a judge for review on 10 days= notice to
the sheriff and the said persons.
(e)   The judge on review shall hear and
determine the matter in dispute and
may amend or confirm the plan of
distribution or may make such order

including an order as to costs as to him
seems meet.
(f) If -
(i)
no objection be lodged to such
plan, or
(ii)
the interested parties signify their
concurrence therein, or
(iii)
the plan is confirmed or amended
on review,
the magistrate shall, on production of a
certificate from the conveyancer that transfer
has been given to the purchaser and on the
request of the sheriff, pay out in accordance
with the plan of distribution.  If the address of
a payee is not known the amount due to him
shall be paid into the Guardian=s Fund
established under any law relating to the
administration of estates.

. . .

[8] By  amendment in 1996 a further  subrule  was added, reading
as follows:

A(16) In this rule, the word >days= shall have the same
meaning as >court days= as defined in rule 1 of the Rules.@

That can,  of course, have no bearing on the present issue and  the

ensuing discussion proceeds on the basis of  the pre-amendment position.

[9] 
The relevant reasoning in the First Consolidated Leasing
case is contained in the following passage (at 246 in fine):
ANow it is true that in Rule 1 which defines Acourt days@
it is said that only court days shall be included in the
computation of the number of days for which the Rules
make provision, but that definition is subject to the context
in which the word Adays@ is used.   I think that in the
context of Rule 46 (7)(d) calendar days were intended and
not court days.  Rule 46 has nothing to do with procedural
steps connected with a law-suit, and the considerations
which prompted the draftsman of the Rules to exclude
Saturdays, Sundays and public holidays in computing the
number of days allowed for procedural steps in litigation,
could not have applied to the steps required to be taken
when property is sold in execution.@

[10] That statement was endorsed by Mynhardt J in the
unreported case of Manrim (Pty) Ltd and Another v Bank of Lisbon
International and Others (Transvaal Provincial Division case 17464/95,
judgment having been delivered on 27 September 1995).  In elaborating
upon the above-quoted reasons in the First Consolidated Leasing case,

Mynhardt J considered that the expressions Aone month@ in subrule (7)(a)
and Atwo weeks@ in subrule (7)(c) signified C
A[t]he clear intention of the rule . . .  that in this particular
instance there is no need to read the reference to  days as a
reference to court days as one ordinarily would do in the
context of other rules . . .@ (At 4 of the typed judgment).

[11] The Court below agreed with the reasoning of Eloff J and
Mynhardt J and added that it was unlikely that the legislature would in
the same subrule have provided for the computation of time by reference
to different standards.
[12] By contrast, Coetzee J held in Röntgen (at 185 G - H) that
there was nothing in Rule 46 which in any way indicated a meaning of
Adays@ other than court days and that there was therefore no contextual
basis for departing from the defined meaning.   To reach that conclusion
the learned Judge commenced with one of the Oxford English Dictionary
meanings of Acontext@.   It is:  Athe parts which immediately precede or
follow any particular passage or >text= and determine its meaning@.   On

the strength of this he continued (at 184 H) C

AIn my view this time-honoured phrase which appears in
the definition sections of legislation (>unless the context
otherwise indicates=) means that another meaning is to be
given to the particular word or phrase so defined only if the
parts which precede or follow that particular word or phrase
indicate that it is used in a different sense or with a different
meaning.   One therefore has to examine the language used
in the particular sections to determine whether the defined
word is used clearly in a different sense in any related
passage which  precedes or follows the one that falls to be
interpreted and, if so, whether contextually the same
meaning is intended in the passage in question.@

However, the learned Judge then proceeded (at 185 A - G) to draw, and
enlarge upon, what he considered was a crucial and self-evident
distinction between language and context on the one hand and legislative
intention on the other.   The case before him, so he considered, only
concerned the former because

A(w)hen one deals with a word, as defined, in the same Act,

it becomes a matter of language and context, in its strict
sense.   There is then very little scope for legislative
intention as an aid to interpretation as it is normally applied
in the construction of statutes, because in that very piece of
legislation its meaning is irrebuttably fixed.   Only if the
context in a particular passage or section of that Act
contradicts that meaning, may it be departed from for the
purpose of that section@  (At 185 F - G).

Finally, to emphasise his view of the minimal role of legislative intention
in the case before him, Coetzee J viewed Eloff J=s observation that rule
46 had nothing to do with procedural steps in litigation as irrelevant,
being speculation about legislative intention and unconnected with
context (at l85 H).
[13] These, then, are the competing dicta which must be
considered in deciding the essential issue.
[14] In my view, with due respect, the reasoning and the
conclusion in First Consolidated Leasing were wrong.   In the first place,
it is not correct that the rule has nothing to do with procedural steps

connected with a law suit.   Quite plainly the rule deals with procedural
matters and execution is undoubtedly connected with litigation.   It is the
process whereby the successful litigant seeks to exact payment of the
judgment debt in which the litigation has culminated.   Not only that.
Subrules (11) and (14) clearly provide for proceedings before a judge, in
connection with which time limits are set which are stated in days, and
which proceedings can terminate in orders for various forms of relief.
This being so, there is as much reason for Adays@ in those subrules to
mean court days as there is in the rules dealing with litigation.
[15] Secondly, even assuming that the rule applies only to
matters unconnected with litigation,  that cannot justify the adoption of a
meaning of Adays@ other than the defined meaning.   The definition is
expressly to apply to Aany time. . . prescribed by these rules@ i e whether
the rules pertain to litigation or not.
[16] Thirdly, the defined meaning has to apply also to periods
fixed in days Aby any order of court@.   Therefore Adays@ in any such

period laid down by an order under subrule (11) will obviously have to
mean court days.   If  Eloff J were right,  Adays@ would then have
different meanings in one and the same  rule depending on which subrule
was under consideration.   That cannot have been the drafter=s intention.
It would lead to confusion and uncertainty.
[17] In the fourth instance, there is no justification for the view
expressed by Eloff J that the reason for stipulating court days in relation
to litigation cannot also apply to execution.   If Adays@ mean calendar
days then the minimum three  day period in subrule (7) (c) could include
a long weekend occasioned by a public holiday.   Interested parties,
particularly the judgment debtor and potential purchasers, would have no
business days in which to try to make necessary financial arrangements.
Here, once again, is as much reason for Adays@ to mean court days as
there is in the rules concerning litigation.
[18] Finally, and most importantly, it is not enough to warrant
departure from the defined meaning that the subject matter of the rule or

section under examination differs from the subject matter of provisions
in which the defined meaning clearly does apply.   That is not the test.
There is a line of cases, including decisions of this Court, in which the
true approach is stated.   The inference is compelling that none of them
was drawn to the Court=s attention in either the First Consolidated
Leasing case or in the Röntgen matter.   They are collected in Canca v
Mount Frere Municipality 1984 (2) SA 830 (TkSC) at 832 B - G in a
passage which in my opinion sets out the position correctly.   It reads:
AThe question whether a word in a particular section of a
statute should be given its statutory definition or the
ordinary meaning has come up for decision in a number of
cases.   Mr Findlay, for respondent, cites as an example the
case of Limbada v Principal Immigration Officer 1933
NPD 146 at 150, and amongst the cases to which I have
also had reference are Town Council of Springs v Moosa
and Another 1929 AD 401 at 417; Commissioner of
Customs and Excise and Another v Officer Designated
under Act 24 of 1936, s 39 (2) and Another N O 1958 (1)
SA 86 (W) at 88; Commissioner for Inland Revenue v

Simpson 1949 (4) SA 678 (A) at 692 and Brown v Cape
Divisional Council and Another 1979 (1) SA 589 (A) at
600.   In some of these cases the Court was concerned with
a definition section which expressly provided (as here) that
the definition should be applied Aunless inconsistent with
the context@, and in others the definition section did not
contain those qualifying words.   In all cases, however, the
same basic approach was adopted, albeit that such approach
was formulated in different ways.   Strictly the Acontext@ of
a word or passage in a text would consist of Athe parts
which immediately precede or follow@ that word or passage
(see in this regard the definition of Acontext@ in the Shorter
Oxford English Dictionary) but in no case to which I have
had reference did the Court confine itself to so narrow an
examination of the Act in determining the question in issue.
The principle which emerges is that the statutory
definition should prevail unless it appears that the
Legislature intended otherwise and, in deciding whether the
Legislature so intended, the Court has generally asked itself
whether the application of the statutory definition would
result in such injustice or incongruity or absurdity as to lead
to the conclusion that the Legislature could never have
intended the statutory definition to apply.@

[19] Adopting the correct test,  it is plain that the application of

the defined meaning of Adays@ in rule 46 cannot lead to any injustice,
incongruity or absurdity.   Counsel for appellant properly conceded as
much.   It is therefore that meaning which must govern.   The
consequence is that the newspaper publications in the present case
complied with the subrule.   The appeal must accordingly fail.
[20] Although, therefore,   the conclusion in the Röntgen case
was correct,    it is nevertheless necessary to say two things about the
reasoning underlying it.   The above-quoted passage at 184 H in that
judgment, relying as it does on the cited dictionary definition of
Acontext@, might tend to convey that Acontext@ is confined to parts of a
legislative provision which immediately precede and follow the
particular passage under examination.   If that was what the learned
Judge did mean then, with respect, he defined context too narrowly.
AContext@  includes the entire enactment in which the word or words in
contention appear: Re Evans [1891] 1 QB 143 and in its widest sense
would include enactments in pari materia and the situation, or

Amischief@, sought to be remedied: Attorney-General v Prince Ernest
Augustus of Hanover, [1957] AC 436 (HL), [1957] 1 All ER 49.   That is
the first point.  The second is that there is no justification for the
distinction, so heavily relied on by the learned Judge, between linguistic
context and legislative intention.   The moment one has to analyse
context in order to determine whether a meaning is to be given which
differs from the defined meaning one is immediately engaged in
ascertaining legislative intention.   One remains so engaged until the
interpretation process is concluded.   It is only concluded when
legislative intention is established.   As remarked by E Cameron in
LAWSA, 27, 207 par 229:
A. . . context does no more than reflect legislative meaning
which in turn is capable of being expressed only through
words in context@.

The appeal is dismissed with costs.

______________________
C T HOWIE

MAHOMED     CJ)
OLIVIER          JA)
FARLAM        AJA)     CONCUR
MADLANGA AJA)