In essence Sheriffs must comply with Form 21 - Conditions of Sale in Execution of Immovable Property and High Court Rule 46 and the conditions therein. See the summary of the judgment of Absa Bank v The Sheriff of the High Court Simon's Town, Case Number 26018/2010.
It is clear that the Conditions of Form 21 refer to the purchaser who is liable to obtain a Clearance Certificate in terms of Section 118(1) to effect transfer, while the Municipality is entitled to and/or obliged to claim the outstanding debt directly from the proceeds of the Sheriff's sale. However some transferring attorneys and sheriffs are adding in a clause which states that the purchaser is liable for all municipal debts on the property. This clause is unconstitutional because it makes a purchaser liable for the debts of previous tenants and owners which could run into many years.
The landlord/owner however is only responsible for the past two years debts in order to obtain a Clearance Certificate, even if a tenant ran up the debt. In the Supreme Court of Appeal matter between BOE Bank v City of Tshwane Metropolitan Municipality, Case Number 240/2003, it was made clear that the Municipality must issue a Clearance Certificate for the past two years in terms of Section 118 and that they must claim the balance of the outstanding debt directly from the Sheriff.
In City of Johannesburg v Kaplan NO  SCA 45 (RSA) 111/05, the Court sets out a summary of the Municipalities debts and claims [refer to paragraph 25 et seq]. While in City of Cape Town v Real People Housing (77/09)  ZASCA 159, the Court held that it will be unlawful to withhold a Clearance Certificate if the debts for the past two years were paid. It is is interesting to note that the original High Court judgment (Real People Housing (Pty) Limited v City of Cape Town (9692/07)  ZAWCHC 65; 2010 (1) SA 411 (C)) specifically refers to the above judgments [paragraphs 25 - 28, 34, 39].
It is imperative therefore that all Sheriffs comply with their obligations by "settling" the Conditions of Sale as defined in Rule 46(8)(a) which reads as follows:
(8) (a) (i) 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 of sale shall be submitted to the sheriff to settle them,
and not allow themselves to be intimidated by creditors and attorneys. Some of whom are trying to cancel sales to purchasers when they refuse to be held ransom to infinite municipal arrears. This failure to comply is causing unnecessary disputes and tension between the parties.
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