Can alleged unlawful transfers delay eviction?

Ex-mortgagors of immovable property who are faced with eviction following execution sales often allege that they are in the process of applying to rescind the judgment in respect of which the subject property was sold in execution. They then apply for a postponement of the eviction application in the Magistrate’s Court to give them an opportunity to launch an application in the High Court to rescind the judgment. The Respondent also alleges that it will be possible to rescind the judgment, the execution sale and subsequently transfer of the subject-property.

Postponements of eviction applications may be granted in such cases leading to long delays. If the respondent raises the possible setting aside of the judgment and the transfer, the principles governing the setting aside of a transfer of immovable property are applicable. Our law follows the abstract system of transfer of real rights as opposed to the causal system. The abstract system does not require a valid underlying agreement for the valid transfer of immovable property.

Considerations of fraud and illegality are also relevant, as well as the rights of bona fide third parties. In most instances where transfer has been effected following an execution sale, the transfer cannot be set aside, even if the judgment underlying the sale in execution is set aside. These principles will be explained in detail during the eviction seminars to be held during November.