Lapsing attachments

Presently uncertainty prevails as to the lapsing of an attachment order of immovable property, in terms of the Magistrates Court Act 32 of 1944.

Section 66(4) of the Magistrates Court provides as follows:
"If a sale referred to in subsection (3) does not take place or the immovable property concerned is not released from attachment within a period of one year from the date of attachment, such attachment shall lapse." (my underlining)

The question begging an answer is, when is the date of the attachment? For the answer, readers are referred to Rule 43(2)(a) of the Magistrates Court Act, which reads as follows:

"The mode of attachment of immovable property shall be by notice by the sheriff served in like manner as a summons together with a copy of the warrant of execution upon the execution debtor as owner thereof, upon the registrar of deeds or other officer charged with the registration of such immovable property, upon all registered holders of bonds (other than the execution creditor) registered against the property attached and, if the property is in the occupation of some person other than the execution debtor, also upon such occupier, and upon the local authority in whose area the property is situated."

From the above rule, it is thus clear that the writ of execution and the attachment of the immovable property are two distinct and separate issues.

The property will only be deemed attached if same has been served on all of the following parties:

  • The execution debtor (owner);
  • Registrar of Deeds;
  • Registered holders of mortgage bonds registered against the property;
  • The occupier other than the execution debtor;
  • The local authority in whose jurisdiction the immovable property is situated.
Given the above, the one year period will only commence after the writ has been issued and served upon the last person referred to supra.

Registrars of Deeds must thus be wary of merely rejecting deeds without closer perusal. One will first have to ascertain whether same has been served on all interested parties.

It is strongly advised that Registrars do note the date of the writ on their records, but also the date the writ was served on the Registrar.

Readers are also referred to the first issue of this Journal where the late Andre Cockrell from the Bloemfontein Deeds Registry wrote an article in this regard, which article was frowned upon and ignored.

It is trusted that the above has now clarified the matter once and for all and a uniform practice will now prevail.

Republished with permission from SA Deeds Journal

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