The Judicial Attachment

Removal and Sale in Execution or Auction

The first phase in the execution process is the actual attachment of the goods or movable property.
The sheriff or deputy sheriff will demand payment of the judgment debt, if the debt is not paid, the sheriff or deputy sheriff will make an inventory and valuation of the goods or movable property of the debtor to satisfy the warrant and all costs.

The second phase is taking possession of the attached goods or movable property, the actual removal of the attached goods or movable property.
The sheriff or deputy will remove from the possession of the debtor the attached goods or movable property to a place of safe-keeping.
The goods will remain in storage up to the day of sale, unless released from attachment prior to the sale in execution.

The third phase in the execution process is the sale in execution or auction..
The sale in execution or auction is the most essential phase in the entire process, as the attachment puts nothing in the pocket of the creditor and does not make available to him/her the fruits of his/her judgment .
All warrants lodged with the sheriff one day prior to the sale in execution or auction will share pro rata in the proceeds of the sale.
Hence a sale in execution can be stopped only when the amount reflected in all such warrants has been reached.
All such amounts must be covered before any balance or surplus may be paid back to the debtor.

Rules of Auctions - Sheriff sales in execution

Sheriff’s sales in execution are conducted strictly subject to the terms and conditions of the High Court Act, Act 59 of 1959, Magistrates Court Act, Act 32 of 1944, Sheriffs Act, Act 90 of 1986 and the Consumer Protection Act, Act 68 of 2008 and the Rules promulgated there under.
If in the opinion of the Sheriff the value of the movable property attached exceeds R 5000, the Sheriff 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 execution / auction.
The execution creditor shall publish a notice prepared after consultation with the Sheriff once in a newspaper circulating in the district in which the immovable (fixed) property is situated, not less than 5 days and not more than 15 days before the date of the sale / auction.
When property or goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, regarded to be subject of a separate transaction.
Property or goods on auction may be inspected prior to the commencement of the auction.
The Sheriff is the holder of a Fidelity Fund Certificate issued annually by the South African Board for Sheriffs and holds a Trust Account where all monies collected at Sheriffs’ auctions are deposited.
The property shall be sold by the Sheriff or deputy sheriff to the highest bidder.
The purchaser will pay in cash and/ or bank guaranteed cheque or by electronic transfer, immediately after the fall of the hammer, or upon the final lot being sold on completion of the auction.
Goods sold on the Sheriff’s auction do not carry the mandatory quality warrantees and are sold “VOETSTOOTS”
No goods will be removed from the auction premises unless full payment is affected.
The sale in execution shall be for rands.
A bidder must register prior to the commencement of the auction.
The sheriff as auctioneer must ensure that every prospective bidder must prior to the commencement of an auction register his / her identity in the bidder's record, and such registration must with the necessary changes meet the requirements of Chapter 1 of the regulations in terms of the Financial Intelligence Centre Act, 2001, published in Notice No. R. 1595 in Gazette No. 24176 of 20 December 2002, in respect of establishment and verification of identity, and sign that entry.
No bid will be taken from an unregistered bidder.
A bid taken from an unregistered bidder is invalid.
Sheriff’s sales in execution are auctions without reserve and mean the property or goods are sold to the highest bidder without a reserve price.
Immovable (fixed) property shall be sold by the Sheriff or deputy sheriff to the highest bidder subject to such reserve price, if any, as may be stipulated by a preferent creditor in terms of the rules of court.
The movable property auction does not require a minimum bid.
The movable property auction does not allow competing bids of any type by the seller or an agent of the seller.
The immovable (fixed) property auction allows banks or financial institutions to bid on execution auctions of property they have repossessed, as a bank is at that moment not the auctioneer or the owner of the repossessed property.
The property or goods cannot be withdrawn from the auction after the auction is opened by calling for bids; however every lot is a separate transaction.
A sale in execution shall be stopped as soon as sufficient money has been raised to satisfy the said warrant / order of court and the costs of the sale or auction.
The attorneys for the execution creditor shall be entitled to cancel the sale in execution or withdraw lots at any stage before the auction has commenced.
If any dispute arises about any bid, the property may immediately again be put up for auction.
If the Sheriff or deputy sheriff makes any mistake such mistake shall not be binding, but may be rectified.
If the Sheriff or deputy sheriff suspects that a bidder is unable to pay the purchase price, he/she may refuse to accept the bid of such bidder, or accept it provisionally until the bidder shall have satisfied the Sheriff or deputy sheriff that he/she is in a position to pay such amount.
A sale by auction is complete when the Sheriff or deputy sheriff announces its completion by the fall of the hammer, and until that announcement is made, a bid may be retracted.
Sheriff’s sales in execution will commence at the time published or the announced time and will not be delayed to enable any specific person or more persons in general to take part in the auction.
A person who attends at the auction to bid on behalf of another person must produce a letter of authority meeting the requirements of the regulations in order to bid on behalf of that person.

General Information on Sales in Execution or Auctions

Frequently asked questions (FAQ’s)

May a sale in execution be cancelled or stopped?
Yes. An execution creditor or his/her attorney can stop a sale in execution or auction by written instructions but not by oral or telephonic instructions

May the sheriff stop a sale without any instructions?
No. It would be irregular, even if the instructions were forthcoming from the execution creditor, unless in writing.

What is the position of the sheriff where bidding had already commenced?
In a sale in execution without a reserve price, once an article has been put up for bidding, the bidder may not withdraw its bid.

What if there are various lots or articles?
Each article or lot is auctioned off separately.

When is the agreement concluded?
The knocking down or fall of the hammer is merely a declaration by the seller or auctioneer that the suspensive condition is fulfilled and the contract is complete.

Are there rules for sales in execution or auctions?
Yes. The rules are the conditions of sale and will be available at the auction and announced prior to the commencement of the sale in execution. An auction is a form of competitive bargaining with the object of a contract of sale resulting and carried out in accordance with certain rules. The conditions of sale are so to speak the rules of the game and they bind all parties.

Does the sheriff act as agent?
No. The sheriff is not an agent of anyone, but does so as an executive of the law.

How can payment be effected at the sale in execution or auction?
In cash, bank guaranteed cheque or Electronic Funds Transfer (EFT)

Is there a facility to effect payment by EFT?
Yes. A computer with internet facility is available on the premises.

Is VAT payable?
Yes. However the sheriff will announce it prior to the commencement of the sale in execution.

Does the purchaser have to pay commission to the sheriff as auctioneer in sales in execution of movable property?
No.

Does the purchaser have to pay commission to the sheriff as auctioneer in sales in execution of immovable (fixed) property?
Yes. 6% on the first R30, 000.00 and 3.5% on the balance subject to a maximum of R9655.00 and a minimum of R485.00 excluding VAT