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[2018] ZAGPJHC 94
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Absa Bank Limited v Njolomba and Another, Firstrand Bank Limited v Mbale, Firstrand Bank Limited v Kiwanuka and Another, Firstrand Bank Limited v Thomas, Changing Tides 17 (Proprietary) Limited N.O. v Wesley and Another, Changing Tides 17 (Proprietary) Limited N.O. v Lundberg, Changing Tides 17 (Proprietary) Limited N.O. v Getrude and Another, Changing Tides 17 (Proprietary) Limited N.O. v Ntombifuthi and Another (20321/2017, 39655/2017, 40453/2017, 00435/2018, 24653/2017, 41765/2017, 44904/2017, 45113/2017) [2018] ZAGPJHC 94; [2018] 2 All SA 328 (GJ); 2018 (5) SA 548 (GJ) (5 March 2018)

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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:
YES
DATE:
05/03/2018
Case
number
20321/2017
In
the matter between:
ABSA
BANK LIMITED
Applicant
And
RICHARD
CHINYAMA
NJOLOMBA
First  Respondent
(Identity
Number: [...])
KAMONA
MULANGESA NJOLOMBA
Second Defendant
(Identity
Number: [...])
Case
number:
39655/2017
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
And
BRIGHT
MBALE
Respondent
Case
Number:
40453/2017
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
And
KABITO
BAKER KIWANUKA
First
Respondent
ANISHA
BABIRYE KIWANUKA
Second
Respondent
Case
Number:
00435/2018
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
And
MARRION
THOMAS
Respondent
Case
Number:
24653/2017
In
the matter between:
CHANGING
TIDES 17 (PROPRIETARY) LIMITED N.O
Applicant
(Registration
No. 2001/009766/07)
And
FOURIE,
JODY WESLEY
First
Respondent
(Identity
Number: [...])
FOURIE,
MELLISA
CELESTE
Second
Respondent
(Identity
Number: [...])
Case
Number:
41765/2017
In
the matter between:
CHANGING
TIDES 17 (PROPRIETARY) LIMITED N.O
Applicant
(Registration
No. 2001/009766/07)
And
HAYLEE
GAENOR LUNDBERG
Respondent
(Identity
Number: [...])
Case
Number:
44904/2017
In
the matter between:
CHANGING
TIDES 17 (PROPRIETARY) LIMITED N.O
Applicant
(Registration
No. 2001/009766/07)
And
NKETLE,
TIISETSO GERTRUDE
First
Respondent
(Identity
Number: [...])
YONANA,
SIMPIWE
SAMUEL
Second Respondent
(Identity
Number: [...])
Case
Number:
45113/2017
CHANGING
TIDES 17 (PROPRIETARY) LIMITED N.O
Applicant
(Registration
No. 2001/009766/07)
And
SANGWENI,
PORTIA NTOMBIFUTHI
First
Respondent
(Identity
Number: [...])
SANGWEN,
SIPHIW
E
BRANDON
Second
Respondent
(Identity
Number: [...])
SUMMARY:   Interpretation:
National
Credit Act 34 of 2005
—
section 129(
3
>
4)
-
relates specifically to enforcement of that type of credit agreement
that has a movable assets as its subject matter.
The section does not
preclude reinstatement or revival of a mortgage agreement in terms of
section
129(3)
JUDGMENT
FISHER J
[1] These matters all
came before me in the unopposed motion court. Each is for default
judgement in terms of
rule 31(5).
They have in common that they
relate to credit agreements which are subject to the National Credit
Act (NCA) and are all in respect
of loans where the indebtedness is
secured by means of a mortgage bond over immovable property. In each
case the applicants concede
that it must be assumed that the
mortgaged property is the primary residence of the debtor. They are
thus all what are commonly
known as “
home
loans
”.
Furthermore each credit agreement – as is usual for this type
of loan, has a provision which allows for what is known
as the
“
acceleration”
of the indebtedness under the loan in the event of the debtors
default. Put simply, this means that the loan provides for all
periodical payments under the loan agreement to become immediately
payable in one lumpsum in the event of default.
[2]
None of the agreements have been cancelled by the applicants. Each of
the applicants seeks a money judgement in respect of the
accelerated
debt in each instance. The applicants do not seek, at this stage,
that the properties be declared executable. There
is an
acknowledgment on behalf of each applicant that they are not, for one
reason or another, entitled at this stage to such an
order. They each
contend however that they are entitled to a money judgment for the
debt owing under the agreement given the default
in each instance and
given that all the legal and contractual requirements for such
judgment have been met.
[3]
There have, of late, been salutary moves in the statutes, case law,
rules, and practice directives to introduce a measure of
flexibility
into the execution process where it is sought to execute against the
home of a debtor.  These laws and rules emanate
from an accepted
need to promote the objects of our Bill of Rights and especially the
requirement that all relevant circumstances
be considered before
depriving a person of his or her home. They include the requirement
that immovable property not be executed
against without judicial
oversight being brought to bear thereon
[1]
and the recent introduction of rule 46A into the Uniform Rules which
requires that the court “
consider
alternative means of satisfying the judgment debt, other than
execution against the judgment debtor’s primary residence”
The cases have required stringent adherence to notice and service
requirements and the furnishing of details in relation to the
steps
taken to manage the indebtedness of the debtor. Recent amendments to
rule 46 of the Uniform Rules require the consideration
by the court
of alternative means of satisfying the judgment debt. These changes
impose an even more rigorous investigative function
on a court faced
with an application for a declaration of executability and require
still more information to be forthcoming in
relation to the debtor’s
circumstances and the value of the property. This assists in setting
appropriate reserve prices
and other sale conditions in the event of
execution against the property becoming necessary.  However, the
process has, as
its main endeavour, to maintain the mortgage loan and
the rehabilitate the debtor if at all possible.
[4]
Pivotal to the court’s function in preserving the credit
agreement and thus the debtor’s home, is section 129(3)
of the
NCA, which affords to the debtor rights that he did not have before
the advent of the NCA. It provides that notwithstanding
that a debtor
has fallen into arrears he
“
may
at any time before the credit provider has cancelled the agreement,
remedy a default in such credit agreement by paying to the
credit
provider all amounts that are overdue, together with the credit
provider’s prescribed default administration charges
and
reasonable costs of enforcing the agreement up to the time the
default was remedied.
”
Thus, even after judgment, the debtor is entitled to remedy any
default by paying the arrear amounts together with default
charges
and reasonable costs of enforcing the credit agreement
[2]
.
Indeed, in relation to immovable property this right endures until
the proceeds from the sale have been realised.
[3]
A debtor experiencing financial difficulties is thus given greater
leeway in relation to the maintenance of the agreement.
[5] Moseneke DCJ writing
for the majority in
Nkata
, had the following to say in
relation to this new dispensation created by the NCA
:
“
The Act seeks to infuse
values of fairness, good faith, reasonableness  and
equality in the manner actors in the credit
market relate. Unlike in
the past, the sheer raw financial power difference between the credit
giver and its much-needed but weaker
counterpart, the credit
consumer, will not always rule the roost. Courts are urged to strike
a balance between their respective
rights and responsibilities. Yes,
debtors must diligently and honestly meet their undertakings towards
their creditors.  If
they do not, the credit market will
not be sustainable. But the human condition suggests that it is not
always possible —
particularly in credit arrangements that run
over many years or decades, as mortgage bonds over homes do. Credit
givers serve a
beneficial and indispensable role in advancing the
economy and sometimes social good. They too have not  only
rights
but also responsibilities. They must act within the
constraints of the statutory arrangements. That is particularly so
when a credit
consumer honestly runs into financial distress that
precipitates repayment defaults. The resolution of the resultant
dispute must
bear the hallmarks of equity, good faith, reasonableness
and equality. No doubt, credit givers ought to be astute to recognise
the imbalance in negotiating  power between themselves and
consumers. They ought to realise that at play in the dispute
is not
only the profit motive, but also the civilised values of our
Constitution
”
.
[4]
[6] An
applicant who has not yet been able to comply with the requirements
for obtaining a declaration of executability in terms
of rule 46,
(which requirements it must be acknowledged have become increasingly
onerous) but who has in terms of its agreement
the right to seek
judgment, will generally seek to obtain judgment for the accelerated
indebtedness and to postpone the declaration
of executability so that
the processes set out in rules 46 and 46A can be undertaken in due
course if this becomes necessary. The
courts, in this and other
divisions, have adopted different approaches in relation to the
granting of such relief. Some judges
have granted the money judgment
as a matter of course and, in the same vein, others have refused it.
Some have granted it with
conditions which relate to staying
execution in respect of movables.  These varying approaches have
been undertaken on the
basis of the assumption of discretion in
relation to the granting or declining of such relief at that stage.
[7] In
Firstrand
Bank Ltd v Zwane
and two other matters,
[5]
Van der Linde J found that the court has discretion to postpone such
a claim for judgement where a declaration of executability
is still
to be considered. He reasoned, on the basis of
ABSA
Bank Ltd v Lekuku
,
[6]
that the practice manual that proposed personal service on the debtor
in the event of execution being sought in respect of a primary

residence had previously survived a validity attack and that this
meant that the same flexibility should maintain in respect of

judgments being sought in respect of mortgage loans. He also had
resort to the Constitution and specifically section 26
[7]
and section 173
[8]
.
The learned judge was however careful to emphasize, in this context,
that for a court to decline to give judgment should not be
seen as a
signalling of inroads into the principle that contracts should be
honoured and enforced.
[9]
The approach taken was, in essence, based on the assumption that the
right to reinstatement of the agreement is negatively
affected by an
order for a money judgement under the agreement.
[8]
The practice manual at paragraph 10.17 as recently amended
[10]
now contains a directive that is to be read in conjunction with the
amended rule 46A
[11]
.
The directive expressly precludes the granting of a default judgment
for a money claim where it is necessary to postpone the claim
for a
declaration of executability.
[9]
The central reason given in the practice manual for this approach, is
that if a money judgment is given and the judgment debtor’s

movables executed against, section 129(4)(b) of the NCA will preclude
the debtor from reinstating the credit agreement by paying
the
arrears.
[12]
[10]
Were this construction of section 129(4)(b) correct, there would
indeed be compelling reasons to avoid piecemeal execution
as a matter
of general practice. As stated above, the right to reinstate the
agreement is essential to the preservation of the
mortgaged property
and the operation of rule 46A. If this right is lost, the process
contemplated in rule 46A would be rendered
nugatory.
[11]
In all these applications, the applicants argue that, whilst the
court is expressly given a discretion to postpone the declaration

that the immovable property may be executed upon, it does not have
discretion to postpone the granting of the money judgment sought
by
the applicants. They rely in this regard on the abiding principle
that they are entitled to enforce their contractual rights.
This was
the finding by this court
(
per
Lamont
J)
in
Firstrand
Bank Limited t/a First National Bank v Stand 949 Cottage Lane
Sundowner (Pty) Ltd and Another.
[13]
The learned judge stated
as follows in this regard:
“
As far as
the first defendant is concerned, the fact that the registrar has no
power to declare immovable property executable in
no way impacts on
the rights of the plaintiff to judgment for the money claim. The
plaintiff is in the same position as any commercial
creditor.
[14]
”
[12]
The
learned judge continued in this vein categorically as follows:
“
There is
accordingly no question of judicial oversight of the right of a
plaintiff to payment of the money due to it
[15]
.”
[13]
The point was made in this case that a creditor who lends money and
does not obtain security in the form of a mortgage could
not have
been intended by the rule maker to be in better position than a
secured creditor.
[16]
It is, with respect, difficult to argue against this assertion.
[14] The meaning of
section 129(4) of the NCA and especially the effect of section
129(4)(b) is thus pivotal to the relief sought
by the applicants.
[15]
The proper approach to the
interpretation of documents is as set out in summary by Wallis JA
in
Natal Joint Municipal Pension
Fund v Endumeni Municipality
:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation
to
substitute what they regard as reasonable, sensible or businesslike
for the words actually used. To do so in regard to a statute
or
statutory instrument is to cross the divide between interpretation
and legislation; in a contractual context it is to make a
contract
for the parties other than the one they in fact made. The “inevitable
point of departure is the language of the
provision itself”,
read in context and having regard to the purpose of  the
provision and the background to the
preparation and production of the
document
.”
[17]
(Footnotes omitted.)
[16] This approach was
succincly stated by Unterhalter AJ (as he then was), in
Betterbridge
(Pty) Ltd v Masilo and others NNO
,
as “
a
unitary endeavour requiring the consideration of text, context and
purpose
.
[18]
[17]
In these matters before me, it is argued on behalf of all the
applicants that rules 46 and 46A, far from militating against
the
granting of a judgement before a declaration of excecutability, in
fact, envisage a procedure where a money judgement has already
been
taken.  In terms of rule 46(1)(a), a return of process against
movable property, is to be a first step of execution against

immovable property. It is argued thus, that this could not be in
contemplation if the taking of a money judgement separately should

not to be entertained. Furthermore on a linguistic and sensible
reading thereof, rule 46A proceeds from the assumption that a
“
judgment
debt
”
already exists. Rule 46A(1) provides: “
This
rule applies whenever an execution creditor seeks to execute against
the residential
immovable
property of a judgment debtor
.”
Rule 46A(2)(a)(ii) enjoins a court to consider alternative means of
“
satisfying
the judgment deb
t”.
Reference is pertinently made to “
judgment
debtor
”
and “
judgement
creditor
”
throughout the rule. All this strongly conveys that it is
contemplated that judgment has been taken under the credit agreement

before the process set out by the rule is implemented.
[18]
Indeed the interpretation of section 129(4)(b) posited by the
practice manual is irreconcilable with rules 46 and 46A and the

common law and leads to the difficulties of law and logic which are
referred to in 949 Cottage Lane (
supra
).
[19]
Access to credit is a vital part of any modern commercial system.
Central to the national credit system are instalment agreements
[19]
,
secured loan agreements,
[20]
leases
[21]
,
credit facility agreements
[22]
with banking institutions, such as those which allow for credit
transactions using credit cards and electronic payment functions
to
operate, and mortgage agreements
[23]
.
[20]
Understanding the purposes of the NCA is vital to the interpretative
process. Such purposes are set out in some detail in section
3 of the
NCA and, importantly for present circumstances, include
“
ensuring
consistent treatment of different credit products and different
credit providers”
[24]
and “
providing
for a consistent and harmonised system of debt restructuring,
enforcement and judgment, which places priority on the eventual

satisfaction of all responsible consumer obligations under credit
agreements
[25]
.”
[21] The NCA is aimed at
regulating the operation of the debtor/creditor relationship
throughout the life of the agreement. The
NCA thus deals with the
management and preservation of credit agreements so as to meet the
purposes of the NCA. Its focus is not
on the execution process after
judgment has been taken. The statutory and regulatory processes after
judgment are well entrenched
generally and in relation to the
preservation of residential mortgaged property, and the purpose of
the NCA is not to re -traverse
this territory.
[22] The larger
proportion of credit  agreements occur in the consumer sectors
where vehicles and household goods are purchased
on credit or credit
card facilities are extended by banks. The aim of the NCA  is to
keep these agreements in place, if at
all possible, and, if not, to
bring the agreement to an end in a manner that is as fair as possible
to the parties with reference
to the type of agreement in issue.
[23]
In keeping with the purpose of
ensuring
consistent treatment of different credit products and different
credit providers
special
recovery provisions are set out in relation to the various types of
credit facility. Chapter 6 of the NCA deals with “
Collection,
Repayment, Surrender, and Debt Enforcement
”
.
It
is divided into three parts: Part A which deal with
Collection
and repayment practices’( sections 124 – 126B
);
part B which deals with “
Surrender
of Goods” (sections 127 and 128
);
and part C which deals with “
Debt
Enforcement by Repossession or  Judgment” ( sections 129 –
133).
[24] Section 129
deals with the preliminary notice and demand procedures which must be
undertaken before a creditor can embark on
any debt recovery process.
Sections 129(1) and (2) deal with notifications which must be given
to the debtor in the case of his
default.
[25] Section 129(3) gives
to all consumers the right to maintain the agreement’s force
by paying the arrears and wasted
costs at any time up to
cancellation. In the case of agreements which involve the acquisition
of movables, the reinstatement would
involve the restoration of the
movables. It stands to reason then, that if the movable has been
disposed of as part of the enforcement
and recovery process, the
credit agreement cannot be reinstated.  Section 129(4) must be
read in this context. It bears repetition
here:
“
A
credit provider may not reinstate or revive a credit agreement after-
(a) the
sale of any property pursuant to-
(i)
an
attachment order; or
(ii) surrender
of property in terms of section 127;
(b)
the
execution of any other court order enforcing that agreement
;
or
(c)   the
termination thereof in accordance with section 123.
[26] The agreement which
may not be reinstated or revived by the credit provider in terms of
this section is one pursuant to which
property has been repossessed
by attachment order or surrendered and then sold by the credit
provider. The agreement contemplated
is thus of a type where movable
property has been acquired. It is not a reference to a mortgage
agreement.
[27] Section 129(4)(b),
on the construction provided for in the practice manual, is assumed
to relate to all credit agreements and
thus to a mortgage agreement.
This has led to the assumption being made that section 129(4)(b) has
the effect that, whenever any
form of execution is levied pursuant to
a judgment debt which arises from any credit agreement, no matter how
paltry the recovery,
this will trigger a situation where the rights
afforded by 129(3) are no longer available to a debtor.
[28] This construction in
the context of mortgage loans is anomalous. The purpose of section
129(3) is to allow for a reinstatement
of the agreement at any time
up to cancellation provided this has not in the interim become
legally impossible. The purpose of
section 129(4) is to describe the,
somewhat obvious, position that where the subject movable has been
legally repossessed and sold
to a third party, the agreement can no
longer be reinstated on its terms. It goes no further than this.
[29] We know however that
a different position has been prescribed where immovable property is
acquired under a mortgage agreement.
In this case the maintaining of
the mortgage agreement will only become impossible when the immovable
property has been sold and
transferred to the third party
purchaser.
[26]
If execution takes place in respect of movable property of the
judgment debtor, this will not create a situation where the mortgage

agreement in respect the debtor’s home cannot be reinstated.
This would be contrary to the stated purposes of the NCA. Indeed
it
may arise that a debtor has immovable property other than his home.
There is, to my mind, no reason why this property should
not be
executed on before and in the stead of resort to the residence of the
debtor, provided the provisions of rule 46(1) are
met. This surely
cannot have the result that that the right to reinstate the agreement
will be lost.
[30] The language used in
section 129(4) accords with this interpretation. It confines its
applicability to a specific enforcement
and debt recovery process
which is peculiar to instalment agreements, secured loans, and leases
– i.e to transactions which
involve dealing with movable
property. That 129(4)(b) relates to this specific type of agreement
and does not pertain generally
to credit agreements, is conveyed by
the use of the qualifier “
other
”
– i.e the “
execution
”
contemplated by subsection (b) is in respect of relief other than the
sale of the goods surrendered or attached. This train
of meaning is
further clarified by the use of the identifier “
that
”
which serves to restrict the agreement to that which is referred to
in the antecedent subclause (4).
[31] Thus the whole of
section 129(4)(b) relates to only one type of agreement – i.e.
one which relates to the particular
enforcement procedures which
entail recovery of  goods by way of specific attachment or
surrender procedures as a first stage;
the sale of the goods as a
second; and finally the obtaining of an order in terms of the
agreement to recover the balance of the
amount due under that
agreement.
[32] This meaning is
fortified when one moves to section 130, which makes specific mention
of instalment sales, secured loans and
leases, and especially by
section 130(2) which provides for the enforcement of the remaining
obligations of the consumer under
the credit agreement after the
repossessed movable property has been sold and the proceeds are
insufficient to discharge the debt
under that agreement.  has
court order of the remaining provisions  of such an agreement
after the sale of the movable
in issue if the proceeds of the sale of
such goods were insufficient to discharge the consumers obligations
under the agreement.
Section 130(2) reads as follows:
“
In addition to the
circumstances contemplated in subsection (1), in the case of an
instalment agreement, secured loan, or lease,
a
credit provider may approach the court for an order enforcing the
remaining obligations of a consumer under a credit agreement
at any
time if-
(a)
all
relevant property has been sold pursuant to-
(i)
an
attachment order; or
(ii)
surrender
of property in terms of section 127; and
(b)
the
net proceeds of sale were insufficient to discharge all the
consumer's financial obligations under the agreement
.”
(Emphasis added)
[33] It is clear when
sections 129(4) and 130(2) are read together, that the order referred
to in section 130 is that which is contemplated
in 129(4)(b) –
i.e
“
the
execution of any
other
court order enforcing
that
agreement
.”
[34] Thus, properly
construed with reference to its language and purpose, section
129(4)(b) relates exclusively to the instalment
sale, secured loan,
and lease variety of credit agreement which are singled out for debt
enforcement by sale of the movable property
which is their subject
matter and further resort to judgment for the balance remaining after
the sale of such property. Section
129(4) does not touch on the
process of general execution against other assets of the debtor after
judgement and it finds no application
in the case of a mortgage
agreement
[27]
.
[35] The right to
reinstate a credit agreement at any time up to cancellation which is
afforded all debtors – including those
subject to mortgage
loans -  is thus not limited by section 129(4) should judgement
be taken under a mortgage loan and executed
on.
[36] Even if section
129(4) were ambiguous and capable also of the interpretation which
the practice manual attributes to it, the
process of
determining its meaning activates the constitutional duty to promote
the spirit, purport and objects of the Bill of
Rights
[28]
. Clearly
the meaning attributed to section 129(4)(b) by the practice manual is
in conflict with the Bill of Rights:
it sets up an unnecessary
impediment to maintaining the right to housing (section 26) and
trammels free access to courts by credit
providers seeking to enforce
their rights. (section 34)
[37] In
Nkata (supra)
Moseneke DCJ was careful to deal with the fact that, in the case of
mortgage loans, the right to reinstate is, as a natural incidence
of
the execution process, limited to when the proceeds of a sale in
execution of the mortgaged property have been received. It
stands to
reason that it will be at this stage that the property has officially
been registered into the name of the new purchaser.
In this regard
the learned judge, writing for the majority held as follows:
“
The
High Court was correct that the barrier to a revival of the credit
agreement applies only when proceeds from a sale in execution
have
been realised.
Only then would
the revival be of no use to either party
.
”
[29]
(Emphasis added.)
[38] It seems the same
position does not maintain in the enforcement provisions which are
the subject of section 129(4)(b). Because
this process involves the
sale of the repossessed goods to third parties it appears that the
usual legal principles pertaining
to transfer of ownership to the
purchasers of such goods would apply and it would not be necessary
for the proceeds to have been
received by the judgment debtor for the
right to reinstatement to be at an end.
[39]
It must be borne in mind that in
Nkata
the inquiry was what was required of a consumer to reinstate a
contract.
Nkata
is not authority for the proposition that section 129(4) applies to
mortgage loans.
[40]
The construction which is placed on section 129(4) in the judgment,
creates no tension between sections 129(4) on the one hand
and the
Constitution; rules 46 and 46A and the common law on the other. It
furthermore allows for a creditor to seek payment otherwise
than by
resort to executing against the debtors residential property if there
are substantial alternative assets to be had. Why,
for example,
should a creditor not have the right to execute against valuable
shares, vehicles, or cash reserves of a debtor merely
because there
is a mortgage loan in place? Furthermore, different considerations
apply to immovable property owned by the debtor
which is not his
place of residence. There seems to be no reason why the court’s
should not declare this property to be executable
in the interim to
the consideration of the application against the primary residence.
Also, if the judgment debtor has access to
funds or assets of value,
it would seem to be in accordance with general principle and
ultimately to his advantage and that of
his family that he is put to
employing those funds to meet the important indebtedness under the
mortgage loan so that his home
can be preserved.
[41]
Conversely, It would seem to be an exercise in futility for a
creditor to sell by auction household goods that have little
value. I
am advised by way of affidavit by FirstRand, that at least in
relation to the larger financial institutions, the sale
of movables
is not generally resorted to.  If, however, resort is had, by an
unscrupulous judgment creditor, to putting the
movables of a clearly
impecunious person on sale purely for the purpose of intimidation or
the frustration of  measures which
may be devised to avoid the
sale of the debtors home – there are  remedies available
to curb this conduct
.
Such circumstances would indeed be a proper matter for  a court
to exercise the discretion it is given to suspend execution
under
rule 45A.
[42]
In Jaftha
v
Schoeman and Others, Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005
(2) SA 140
(CC) at para
[40]
Mogoro J stated:
“
It
is
difficult to see how the collection of trifling debts in this case
can be sufficiently compelling to allow existing access to
adequate
housing to be totally eradicated, possibly permanently
,
especially where other methods exist to enable recovery of the debt
.”
(Emphasis added.)
[43]
There is however, in the absence of cogent circumstances that could
translate into the rendering of a debtor homeless, no reason
to delay
giving judgment in relation to an indebtedness to which a judgment
creditor is entitled in terms of substantive law. Such
an approach
cannot, with respect, serve the stated aims of the NCA or the Rule of
Law. With respect, I do not believe that it can
simply be assumed, as
a general proposition, that the fact that the money judgment is taken
against a debtor will ineluctably lead
to the debtor becoming
homeless or even that this event will be more likely.  The court
will, in any event, seek to avoid
this result in its ultimate inquiry
as contemplated by rules 46 and 46A, which expressly is in no way
affected by the fact that
there is a judgment. Indeed, the execution
process is such that it can yield valuable information for the court
as to the true
circumstances of the respondent for the purposes in
due course of the rule 46A process. This is implicitly recognised by
rule 46(1)(a),
which provides for the issue of a return of process
against the movable property of the judgment debtor from which it
appears that
there is insufficient property to satisfy the writ.
Whilst this measure ensures that the immovable property is not
executed upon
without a resort to the movables, it also has the
effect that it elicits a return from the sheriff and also perhaps an
opportunity
to seek some form of engagement or co-operation if it has
not previously been forthcoming from the debtor.
[44] To my mind,
Lekuku
also does not present any implicit or express impediment to these
findings. This case deals in essence with service provisions in

foreclosure matters and not, as in the practice directive in issue
here, with the blanket refusal of relief to creditors under

circumstances where a case is made out and where there is no danger
of foreclosure at this stage of the proceedings.  In
Lekuku
the court
dealt with the issue of service thus:
“
The
introduction of a
procedural
step
in the service of process in our constitutional milieu
serves as a safeguard that primary residences are not lost through

inadequate service. It does not undermine the domicilium clause
as that address remains the central point where the creditor
and the
Deputy Sheriff must find the debtor.
The
question to be answered is whether the introduction of a procedural
requirement running parallel with the domicilium clause
is
permissible.
This
issue should be analysed using the paradigm referred to in Brisley
v Drotsky
2002 (4) SA 1
(SCA). The starting point is not whether
the court has a discretion to refuse to enforce the domicilium clause
but whether
the introduction of such a procedural step concerning the
domicilium clause offends the commercial transaction in an
unduly
trammelled manner. No case has been made out that defining the
service of process in foreclosure matters by way of Practice
Directive
restricts commercialism or results in a court assisting a
party to go back on the express provisions of the contract.”
[30]
(Emphasis
added)
[45] Thus, in
Lekuku,
there was the clear and, with respect, correct finding that the the
issue of service was procedural and remained so notwithstanding
the
contractual choice of a
domiclium
address. In these matters it is submitted by the applicants that the
direction that judgment may not be granted until the declaration
of
executability is granted is substantive law which cannot be displaced
by a practice directive. I am inclined to agree with this
submission.
[46]
In
Universal
City Studios Inc and Others v Network Video (Pty) Ltd
[31]
Corbett JA in dealing with a High Court’s power to regulate its
own process dealt with the distinction between procedure
and
substantive law thus:
“
There is no doubt that the
Supreme Court possesses an inherent reservoir of power to regulate
its procedures in the interests of
the proper administration of
justice (see Stuart v Ismail
1942 AD 327
; Republikeinse Publikasies
(Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773
(A) at 783A -G; also Ex parte Millsite Investment Co (Pty) Ltd
1965
(2) SA 582
(T) H at 585 - 6; Moulded Components and Rotomoulding
South Africa (Pty) Ltd v Coucourakis and Another
1979 (2) SA 457
(W)
at 461F - 462H). It is probably true that, as remarked in the Cerebos
Food case (at 173E), the Court does not have an inherent
power to
create substantive law, but the dividing line between substantive and
adjectival law is not always an easy one to draw
(cf Minister of the
Interior and Another v Harris and Others
1952 (4) SA 769
(A) at 781C
- H; Botes v Van Deventer
1966 (3) SA 182
(A) at 198H; Yew Bon Tew v
Kenderaan Bas Mara
[1982] 3 All ER 833
(PC) at 836B; Salmond
Jurisprudence 11th ed at 503 - 4; Paton Jurisprudence 4th ed para
127). Salmond (op cit at 504) states that:
"Substantive law is
concerned with the ends which the administration of justice seeks;
procedural law deals with the means
and instruments by which those
ends are to be attained
. It
is difficult to compose a closer definition of the distinction than
this”
[32]
[47]
To attach the right to enforce contractual terms to the discretionary
question of whether the mortgaged property should be
declared
executable, creates an uncertainty as to when or even if judgment can
ever be granted for the indebtedness under the contract.
In effect,
it seeks to create adiscretion in relation to the application of the
substantive law where none exists. This strikes
at the very heart of
these commercial contracts. It is not merely a procedural regulation
of process. What is posited is that a
postponement of uncertain
duration and effect be given across the board in each instance where
the debtor’s residence is
the security for the debt and without
consideration of any other factor. This fails to draw a distinction
between the right to
judgment on the one hand and the right to
execute on the other.
[48] Whilst the NCA aims
to correct imbalances by providing additional rights and protections
to the consumer, it also aims to ensure
that South Africa’s
credit market becomes and remains “
competitive,
sustainable, responsible [and]
efficient
”.
[33]
This
must not be forgotten in the navigation of the special considerations
which must, of necessity, apply to the execution
process where the
homes of creditors are in jeopardy of forclosure.
[49]
I
find that the applicants, in each instance, are entitled to the
orders that they seek in relation only to the money judgements.
I
respectfully agree with Lamont J in
949
Cottage Lane
that there is no reason to dictate that there be judicial oversight
in relation to these matters as there is no danger of foreclosure
at
this stage.  This said, even if it could be argued that the
court has discretion to postpone the judgment sought, there
is, to my
mind, no basis made out for such relief in each of the cases before
me.
[50]
In relation to the costs in each matter, attorney and client costs
have been awarded where provided for in the agreement and
pressed for
on behalf of the applicant.
[51]
In each instance an advisory recordal which serves to inform the
respondent of the fact that the agreement may be reinstated

notwithstanding the taking of judgment is recommended to be included
in each order.
I
thus grant the following orders under each of the following cases:
Case
Number: 20321/2017
1.
The
respondents are jointly and severally liable  to the applicant
in the amount of R725 423.21 together with interest
thereon at
the rate of 9.10% per annum, capitalized monthly, from 29 March 2017
to date of payment;
2.
The
respondents are to pay the costs of suit on an attorney and client
scale such liability to be joint and several.
3.
The
balance of the relief sought is postponed
sine
die.
4.
The
respondents are hereby advised that if they pay the arrear amounts
owing under the agreements ( i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was remedied) which amounts can
be obtained from the applicant, the respondents
can resume paying the
usual instalments under the agreement in the normal course of such
agreement.
Case
Number: 39655/2017
1.
The
respondent is liable to the applicant in the amount of R941 981.86
together with interest on this amount at the rate of
11.70% per annum
calculated daily and compounded monthly from the 10
th
of October 2017
2.
The
respondent is to pay the cost of suit.
3.
The
balance of the relief sought is postponed
sine
die.
4.
The
respondent is hereby advised that if he/she pays the arrear amounts
owing under the agreement (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was so remedied - which amounts
can be obtained from the applicant) the respondent
can resume paying
the usual instalments under the agreement in the normal course of
such agreement.
Case
Number: 40453/2017
1.
the
respondents are liable to the applicant in  the amount of
R1 454 248.00 together with Interest on this amount
at the
rate of
12.50%
per annum calculated  daily and compounded monthly from the
4
th
of October 2017;
2.
The
respondents are to pay the cost of suit which liability is to be
joint and several.
3.
The
balance of the relief sought is postponed
sine
die.
4.
The
respondents are hereby advised that if they pay the arrear amounts
owing under the agreements (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was remedied) which amounts can
be obtained from the applicant, the respondents
can resume paying the
usual instalments under the agreement in the normal course of such
agreement.
Case
number: 00435/2018
1.
The
respondent is liable to the applicant for the amount of R1 357,148.50
together with interest on this amount at the
rate of 10.70% per
annum calculated  daily and compounded monthly from the 27
th
of December 2017;
2.
The
respondent is to pay the costs of suit.
3.
The
balance of the relief is postponed
sine
die.
4.
The
respondent is hereby advised that if he/she pays the arrear amounts
owing under the agreement (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was so remedied - which amounts
can be obtained from the applicant) the respondent
can resume paying
the usual instalments under the agreement in the normal course of
such agreement.
Case
Number: 24653/2017
1.
The
respondents are liable jointly and severally to the applicant for the
amount of R449 624.58 together with interest on this
amount at
the rate of 11% per annum, compounded monthly in arrear from 1 May
2017 to date of payment.
2.
The
respondents are to pay the cost of suit which liability is to be
joint and several.
3.
The
balance of the relief sought is postponed
sine
die.
4.
The
respondents are hereby advised that if they pay the arrear amounts
owing under the agreements (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was remedied) which amounts can
be obtained from the applicant, the respondents
can resume paying the
usual instalments under the agreement in the normal course of such
agreement.
Case
Number: 41765/2017
1.
The
respondent is liable to the applicant for the amount of R621 693
together with Interest thereon at the rate of 8.80% per
annum,
compounded monthly in arrear from 1 October 2017 to date of payment;
2.
The
respondent is to pay the costs of suit.
3.
The
balance of the relief is postponed
sine
die.
The
respondent is hereby advised that if he/she pays the arrear amounts
owing under the agreement (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was so remedied - which amounts
can be obtained from the applicant) the respondent
can resume paying
the usual instalments under the agreement in the normal course of
such agreement.
Case Number:
44904/2017
1.
The
respondent is liable to the applicant for the amount of R1, 974,
928.13 with Interest thereon at the rate of 10.90% per annum,

compounded monthly in arrear from 26 October 2017 to date of payment.
2.
The
respondent is to pay the costs of suit.
3.
The
balance of the relief is postponed
sine
die.
4.
The
respondent is hereby advised that if he/she pays the arrear amounts
owing under the agreement (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was so remedied - which amounts
can be obtained from the applicant) the respondent
can resume paying
the usual instalments under the agreement in the normal course of
such agreement.
Case
Number: 45113/2017
1.
The
respondents are liable jointly and severally to the applicant for the
amount of R1 131 885.29 with interest thereon
at the rate
of 10.90% per annum, compounded monthly in arrear from 1 October
2017.
2.
The
respondents are to pay the cost of suit which liability is to be
joint and several.
3.
The
balance of the relief sought is postponed
sine
die.
4.
The
respondents are hereby advised that if they pay the arrear amounts
owing under the agreements (i.e. the total of all
instalments that are
overdue, together with the credit provider's prescribed default
administration charges and reasonable costs
of enforcing the
agreement up to the time the default was remedied) which amounts can
be obtained from the applicant, the respondents
can resume paying the
usual instalments under the agreement in the normal course of such
agreement.
________________________________
FISHER J
HIGH COURT JUDGE
GAUTENG LOCAL DIVISION
Date
of Hearings:
Unopposed
Motion Court :  19 to 23 February 2018
Judgment
Delivered:
05
March 2018
APPEARANCES:
For
the Applicants:
Adv
V Fine in case: 20321/2017.
Instructed
by Tim Du Toit & Co.Inc.
Adv
R Carvalheira in cases: 39655/2017; 40453/2017; 00435/2018.
Instructed
by Glover Kannieappan Incorporated.
Adv
S Van Aswegen  in  cases: 24653/2017; 41765/2017;
44904/2017; 45113/2017  Instructed by Strauss Daly
Inc.
For the Respondent:
Cases
are all unopposed.
[1]
Rule 46
[2]
Nkata v
Firstrand Bank Ltd
2016 (4) SA 257
(CC) at para [1]
[3]
Id at para
[131]
[4]
Id at para
[94]
[5]
Handed down
in this court on 29 July 2016  – cases 18581/2016;
19362/2016; 30634/2015
[6]
(32700/2013)
[2014] ZAGPJHC244 (14 October 2014)
[7]
Section
26:
(1)Everyone
has the right to have access to adequate housing.
(2)The
State must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation
of
this right.
(3)No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all
the relevant
circumstances. No legislation may permit arbitrary evictions.
[8]
Section 173:
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into
account the interests of justice.
[9]
Zwane
(supra) at
[18]
[10]
With effect
from 1 March 2018
[11]
46A came
into effect on 22 December 2017
[12]
10.17 (1)
[1] reads as follows: “
NB:
Default judgment should not be granted for the amount and the order
for execution only postponed as this will defeat the object
of
postponing the matter
i.e. to allow the consumer to take advice and seek to make
arrangements to bring the arrears up to date or purge the default.

(FRB v Various Debtors
2016 (6) SA 400
(GJ) para 46 and Petersen
para 7. See Ntsane. Also see Maleke and Lekuku.) The creditor should
not seek and the court (not registrar)
should not give any money
judgment (either for the accelerated total balance or otherwise)
unrelated to an order declaring the
property executable; if a money
judgment is given and then executed against movables, that precludes
the debtor from reinstating
the bond by paying the arrears: NCA
s.129(4)(b).”  (Emphasis in text)
[13]
(2014/10545)
[2014] ZAGPJHC 117 (4 June 2014)
[14]
Id  at
para [15]
[15]
Id  at
para [17]
[16]
Id  at
para [16]
[17]
2012 (4) SA 593 (SCA)
at [18]. See
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms)
Bpk
[2014] 1
All SA 517
, 2014 (2) SA 494,
[2013] ZASCA 176
[12];
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
[2014]
1 All SA 375
(SCA) [10]–[17];
Kingswood
Golf Estate (Pty) Ltd v Witts-Hewinson
[2014]
2 All SA 35
(SCA) [19].
[18]
[2015] JOL
33113
, 2015 (2) SA 396 (GNP) [8].
[19]
'instalment
agreement'
means
a sale of movable property in terms of which-
(a)   all
or part of the price is deferred and is to be paid by periodic
payments;
(b)   possession
and use of the property is transferred to the consumer;
(c)   ownership
of the property either-
(i)   passes
to the consumer only when the agreement is fully complied with; or
(ii)   passes
to the consumer immediately subject to a right of the credit
provider to re-possess the property
if the consumer fails to satisfy
all of the consumer's financial obligations under the agreement; and
(d)   interest,
fees or other charges are payable to the credit provider in respect
of the agreement, or the amount
that has been deferred.
[20]
‘
Secured
loan”
means an
agreement, irrespective of its form but not including an instalment
agreement, in terms of which a person-
(a)
advances
money or grants credit to another, and
(b)
retains,
or receives a pledge to any movable property
or other
thing of value as security for all amounts due under that agreement;
[21]
‘
lease’
means an agreement in terms
of which-
(a)   temporary
possession of any movable property is delivered to or at the
direction of the consumer, or the
right to use any such property is
granted to or at the direction of the consumer;
(b)   payment
for the possession or use of that property is-
(i)   made
on an agreed or determined periodic basis during the life of the
agreement; or
(ii)   deferred
in whole or in part for any period during the life of the agreement;
(c)   interest,
fees or other charges are payable to the credit provider in respect
of the agreement, or the amount
that has been deferred; and
(d)   at
the end of the term of the agreement, ownership of that property
either-
(i)   passes
to the consumer absolutely; or
(ii)   passes
to the consumer upon satisfaction of specific conditions set out in
the agreement;
[22]
'credit facility'
means
an agreement that meets all the criteria set out in section 8 (3);
[23]
'mortgage
agreement'
means
a credit agreement that is secured by the registration of a mortgage
bond by the registrar of deeds over immovable property;
[24]
Section 3(b)
of the NCA.
[25]
Section 3(I)
of the NCA
[26]
Nkata
(supra)
at  [131]
[27]
A further instance of
special provisions being prescribed for a particular type of credit
agreement is section 123 which
deals with special enforcement
measures for credit facilities.
[28]
Section 39(2) of
the Constitution .
[29]
Nkata
at
[131]
[30]
Lekuku
at
[25]
[31]
1986 (2) SA 734 (A)
[32]
Id at p 754G
[33]
Section 3 of
NCA