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[2021] ZAGPJHC 74
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Nedbank Limited v Pettitt and Another (24418/2019) [2021] ZAGPJHC 74 (4 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case No.:
24418/2019
In
the matter between:
NEDBANK LIMITED
Plaintiff
and
PETTITT, NICOLE PIA
First Defendant
PETTITT, JEREMY
ROSS
Second Defendant
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down upon such circulation.
Gilbert AJ:
1.
The plaintiff seeks summary judgment against the
defendants based upon a home loan which is secured by a mortgage bond
registered
over the defendants’ immovable property situated in
Bryanston Ext 8, Sandton. The loan agreement was initially
concluded
on 4 November 2020 pursuant to which the plaintiff
advanced the defendants an amount of R2 030 700.00
repayable
over 240 months.
2.
From at least November 2013 the defendants
experienced difficulties in meeting their obligations under the loan
agreement and which
over the years resulted in a series of written
“
Distressed Restructure Agreements
”
which
inter alia
restructured
the period over which the loan was to be repaid. The most recent
distressed restructure agreement was concluded in
November 2018 and
provides for repayment of what was then the loan amount of
R1 908 489.97 by way of 324 months.
3.
Notwithstanding the restructuring of the home
loan under this distressed restructure agreement, the defendants were
unable to meet
their commitments.
4.
On 11 July 2019 the plaintiff issued a combined
summons money judgment on the home loan together with an order
declaring their primary
residence specially executable.
5.
The defendants defended the action and on
21 February 2020 the plaintiff applied for summary judgment.
6.
Uniform Rule 32 providing for summary judgment
was substantially amended with effect from 1 July 2019. As the
summons in this
matter was issued after that date, rule 32 as amended
applies. Affidavits were exchanged between the parties as envisaged
in amended
rule 32 and the summary judgment application was
ultimately enrolled for hearing on an opposed basis and came before
me.
7.
The application for summary judgment contains a
prayer that the court in terms of rule 46A(8) and (9) after
considering all
the relevant factors in relation to the sale in
execution of the immovable property set a reserve price. The
plaintiff’s
affidavit supporting summary judgment provides in
paragraph 18:
“
It is
apparent from the particulars of claim that the plaintiff has
accommodated the defendants on numerous occasions, particularly
by
restructuring their home loan debt. The plaintiff has assisted the
defendants as far as it possibly could. If a consumer can
no longer
afford to live in a particular home, it is, with respect, the duty of
the consumer to take the responsibility to rearrange
his or her
lifestyle in accordance with his or her affordability. The
defendants’ case is no different. The Court will see
from the
papers that the defendants owe R115 596.44 in rates and taxes as
at to the City of Johannesburg 02 December 2020
(see “SJ2”
hereto). This is a substantial sum. According to the plaintiff the
market value of the property is R2 600 000.00.
The
defendants are clearly living in a luxurious home. It is also a large
erf. There is no reason why the defendants could not
have disposed of
the property in the open market to prevent execution now sought by
the plaintiff. The court should also take into
account that the
property is situated in Sandton, an upmarket area, which reinforces
the fact that the defendants are, with respect,
holding on to a
lifestyle they can no longer afford. The Constitution does not
warrant or promote luxurious housing, but simply
a right to
fulfilment of one’s basic housing needs.
”
8.
The plaintiff in its heads of argument dated
20 July 2020 appreciated that “
Rule 46A
requires the Court to consider additional relevant facts for purposes
of determining the reserve price, if any, at
which the property may
be sold. These facts are set out in a separate affidavit
”
9.
Attached to the plaintiff’s practice note
dated 20 October 2020 is an exchange of correspondence between
the respective
attorneys in which the plaintiff’s attorneys
confirm that “
we have recently received
the updated rates and taxes figure and will accordingly serve the
Rule 46 affidavit (for executability
purposes) shortly
.”
10.
Although specific reference was made by the
plaintiff to the rule 46A affidavit, it did not file the affidavit.
Neither did the
plaintiff file the affidavit required in terms of
Chapter 10.17 of the Practice Manual of this Division relating
to foreclosure
proceedings.
11.
Some of the facts that would have to be
considered by a court when deciding whether to order a property
specially executable and
whether to set a reserve price and what that
reserve price should be can be gleaned from the combined summons and
the affidavit
in support of summary judgment, such as in paragraph 18
set out above. But much of the required information is not before the
court.
12.
Summary judgment proceedings are no different in
requiring substantive compliance with rule 46A as well as
Chapter 10.17,
subject to allowances being made procedurally to
accommodate such compliance in the context of foreclosure
proceedings.
13.
In
ABSA Bank Limited v
Sawyer
[2018] ZAGPJHC 662 (14 December
2018) the plaintiff sought summary judgment in terms of rule 32
as it was before its amendment.
As rule 32 had not yet been amended,
the only affidavit that the plaintiff was permitted to file in the
summary judgment proceedings
was the verifying affidavit required in
terms of the then rule 32(2) and in which the plaintiff was
limited to swearing positively
to the facts verifying the cause of
action and the amount, if any, claimed and stating that in its
opinion there was no
bona fide
defence
to the action and that notice of intention to defend had been
delivered by the defendant solely for the purposes of delay.
14.
This posed the procedural challenge as to how the
plaintiff was to go about complying with rule 46A and chapter 10.17
of the Practice
Manual as it was not permitted in summary judgment
proceedings to adduce any further evidence. Nonetheless compliance
was required
notwithstanding that the proceedings were for summary
judgment. Chapter 10.17 takes particular cognisance of
foreclosure
proceedings in the context of default judgment in terms
of rule 31(5) but it does not follow that the chapter is
applicable
only to default judgment proceedings
15.
Van Eeden AJ in
Sawyer
in paragraph 7 found a solution as
follows:
“
When the
application for summary judgment was enrolled the plaintiff’s
attorney had to comply with chapter 10.17 of this
division’s
Practice Manual. The heading of this chapter reads ‘Foreclosure
(and execution when property is, or appears
to be, the defendant’s
primary home)’. The rule states that chapter 10.17 is
applicable to all applications for
foreclosure. The directive must be
read in conjunction with the amended rule 46A which came into
operation on 22 December
2017. In every matter where a judgment is
sought for execution against immovable property, which might be the
defendant’s
primary residence or home, an affidavit is
required. The affidavit shall be attached to the Notice of Set Down.
Where action proceedings
have been instituted and the provisions of
rule 31(5) are appliable, the registrar shall refer the application
for the money judgment
and the declaration that the property is
executable, to open court. The affidavit shall contain details of
attempts made by the
plaintiff to contact the defendant in order to
negotiate terms of settlement to prevent foreclosure. The plaintiff
must also, in
the affidavit, provide the information referred to in
rule 46A(5) and (9)(b).
”
16.
In
Sawyer
,
the plaintiff did file an affidavit in terms of chapter 10.17
setting out the required information but did not bring a separate
rule 46A application. The defendant delivered a supplementary
affidavit in terms of rule 46A(6)(a)(ii) making submissions which
were relevant to the making of an appropriate foreclosure order. The
court understandably permitted the filing of such a supplementary
affidavit by the defendant, reasoning that a defendant in opposed
summary judgment proceedings should not only put facts before
the
court pertaining to the money judgment but is also to deal with the
desirability of declaring the property executable. This
was
especially so as the defendant had not had an opportunity in her
affidavit resisting summary judgment to deal with the plaintiff’s
averments on this issue in its chapter 10.17 affidavit as that
affidavit had only been filed after the defendant’s resisting
affidavit.
17.
The defendant in
Sawyer
argued that the procedure that had been adopted by the plaintiff
could not be countenanced and that what was required was a separate
application in terms of rule 46A and that an affidavit filed in
terms of chapter 10.17 was insufficient for the court
to grant
the order of executability. The defendant further submitted that in
any event the chapter 10.17 affidavit was not
properly before
the court in the context of rule 32 proceedings. This is because
rule 32, as then formulated, did not
permit the filing of such
further affidavits by a plaintiff.
18.
Van Eeden AJ rejected the argument:
“
14.
… A plaintiff pleading its cause of action in a combined
summons is compelled to plead both circumstances
entitling it to the
money judgment and circumstances entitling it to an order of
executability. Although the order of executability
is ancillary to
the money judgment, the latter relief forms an integral part of the
cause of action. It follows that when summary
judgment is applied for
and the cause of action is verified, the deponent verifies both the
money judgment and the order of executability.
The chapter 10.17
affidavit is a separate affidavit not falling foul of rule 32, which
supports the relief sought in respect of
executability. A court is
eventually faced with a hybrid procedure requiring adherence to rule
32, rule 46A and the Practice Manual.
15.
I do not read rule 46A as excluding a plaintiff’s right to
apply for summary judgment, nor that the plaintiff
must institute a
further application under rule 46A in order to follow Form 2A. In my
view the summary judgement application and
affidavit filed in
compliance with chapter 10.17 constitute substantial compliance by
the plaintiff of its obligations contained
in rule 46A. Together they
allow the court to discharge its duties imposed by rule 46A and to
strike a balance between the competing
interests of the plaintiff and
defendant in a matter where the executability of a primary residence
is at stake. In this matter
the defendant also availed herself of the
opportunity to place a supplementary affidavit before court after
receipt of the chapter
10.17 affidavit. In my view nothing would be
achieved by insisting that the plaintiff should follow the motion
procedure prescribed
by rule 46A. All the information required by
rule 46A is already before court.
16.
In the premises I find that the plaintiff was fully entitled to apply
for both orders in summary judgment proceedings
in terms of rule 32.
The summary judgment application, read with the affidavit filed in
terms of chapter 10.17, constitute substantial
compliance with the
provisions of rule 46A. Rule 46A does not exclude action proceedings
for an order declaring a primary residential
property executable, but
the requirements of rule 46A must still be complied with before the
primary residence of the defendant
can be declared executable.
”
19.
The court in
Sawyer
found that in light of the averments that had been made in the
combined summons which were subsequently verified in the verifying
affidavit in the summary judgment proceedings coupled with the
separate chapter 10.17 affidavit that had been filed, there
was
no need for a separate application in terms of rule 46A.
20.
The court accepted that when the defendant fails
to place facts before the court in relation to execution, it was
nevertheless bound
to determine the matter without the benefit of the
defendant’s input. Notably the court found that all the
information required
in terms of rule 46A had been placed before it
by the plaintiff and so it was in a position to consider whether upon
a consideration
of all relevant factors a foreclosure order should be
granted and to determine an appropriate reserve price.
21.
Sawy
er was
subsequently applied by Strydom AJ in
Changing
Tides 17 (Pty) Limited NO v Rademeyer and others
[2019]
ZAGPPHC 165 (13 May 2019). In that matter both a chapter 10.17
affidavit as well as a separate rule 46A application
had been filed
by the plaintiff, which contained all the required information
relevant to the factors to be taken into account
before declaring the
residential property specially executable. Both the rule 46A and the
summary judgment application were enrolled
for simultaneous hearing.
22.
The court, in rejecting that the defendant’s
argument that the rule 46A application could not be heard
simultaneously with
the summary judgment application, found in
paragraph 20 that “
in short, in a
summary judgment application a court is not only entitled but also
obliged to consider the rule 46A application and
an accompanying
affidavit to determine whether the order in the summary judgment
application should include an order to declare
the immovable property
executable
”. This was especially so,
the court reasoned, as the full court of this Division in
ABSA
Bank Ltd v Mokebe and related cases
2018 (6)
SA 3492
(GJ) had found that the money judgment and issue of
executability should be dealt with simultaneously.
23.
Both
Sawyer
and
Rademeyer
were
applied by Brauckmann AJ in the Local Seat of the Mpumalanga
Division, Middelburg in
ABSA Bank Limited v
Makola
[2019] ZAMPMHC26 (3 December
2019). In that matter too a separate rule 46A application had
been launched by the plaintiff
which the court found could be heard
simultaneously with the summary judgment application.
24.
The
writers in
Van Niekerk
Summary
Judgments – A Practical Guide
(LexisNexis,
service issue 20, March 2021) in paragraph 3.7.3 citing
NPGS
Protection & Security Services CC and another v FirstRand Bank
Limited
2020 (1) SA 494 (SCA)
[1]
opine
that :
“
Regarding
the question of judicial oversight in the grant of an execution order
against immovable property which is the debtor’s
primary
residence, one should distinguish between applications for default
judgment and applications for summary judgment. In an
application for
default judgment the court should be possessed of adequate
information in order to grant the remedy of execution.
In an
application for summary judgment, however,
provided
that the plaintiff has complied with the requirements of rule 46A
,
there is an onus on the defendant to provide the court with
information about whether a property is her or her personal
residence,
whether it is a primary residence, whether there are other
means available to discharge the debt and whether there is a
disproportionality
between execution and other possible means to
exact payment of the judgment debt. If this is not addressed in the
affidavit resisting
summary judgment, mere submissions by the
defendant’s counsel cannot avoid the grant of summary judgment
in respect of the
prayer for an order declaring the property
executable.
” (My emphasis).
25.
What is clear from these decisions is that in
summary judgment proceedings it nevertheless remains necessary to
comply substantively
with rule 46A and chapter 10.17 and
that procedurally this was achievable in the context of rule 32 as it
then was, as
the plaintiff did successfully in all three of those
cases.
26.
Rule 32 as amended now requires a plaintiff since
1 July 2019 to file a more substantive affidavit in support of
summary judgment.
Uniform Rule 32(2)(b) as amended provides
that:
“
The
plaintiff shall, in the affidavit referred to in subrule (2)(a),
verify the cause of action and the amount, if any, claimed,
and
identify any point of law relied upon and the facts upon which the
plaintiff’s claim is based, and explain briefly why
the defence
as pleaded does not raise any issue for trial.
”
27.
This more expansive affidavit may give more scope
for a plaintiff to comply with rule 46A and chapter 10.17 than
was previously
the case with the considerably more circumscribed
verifying affidavit that the plaintiff was required to filed under
rule 32 in
its previous form. But I need not determine that this is
so because in the present instance the plaintiff’s supporting
affidavit
does not in any event go far enough in placing before the
court the information required in terms of rule 46A and
chapter 10.17.
28.
The upshot is that in the present instance the
plaintiff has not substantively complied with the obligatory
requirements of rule 46A
and chapter 10.17. The plaintiff
has filed neither a separate rule 46A application (although it
specifically stated
that it had or would do so) nor a chapter 10.17
affidavit. This can be contrasted to
Sawyer
and
Rademeyer
where
all the relevant facts had been placed before the court.
29.
I
therefore do not find myself in a position where I am able to make an
order authorising execution against the defendants’
immovable
property which is their primary residence as I do not have before me
the relevant factors that I am enjoined to consider.
[2]
30.
Shortly before the matter was to be heard before
me, the plaintiff emailed to my registrar a supplementary practice
note in which
the plaintiff stated that the parties had agreed that
an order be granted against the defendants and that the defendants’
immovable property be declared executable but that the operation of
the execution against the immovable property be suspended for
a
period of six months until 30 November 2021, presumably to
enable the defendants to settle all sums due as provided for
in
section 129(3) of the National Credit Act and so enable the
agreement to be reinstated. This supplementary practice note
also
sets out that what remains for determination is the reserve price and
the scale of costs. Simultaneously with the practice
note a copy of
the latest municipal invoice from the City of Johannesburg reflecting
the latest municipal value and the current
arrear rates and taxes was
emailed to my registrar.
31.
When the matter was called, there was appearance
only for the plaintiff. I was informed that because of the agreement
reached and
although the matter had been enrolled as an opposed
basis, there would be no appearance on behalf of the defendants. I
requested
my registrar to contact the defendants’ legal
representatives seeking that there be an appearance on their behalf.
Unfortunately,
this was unsuccessful.
32.
Notwithstanding what I was told was the
settlement agreement that had been reached with the defendants, the
position remained that
I required information in terms of rule 46A
and chapter 10.17 which was not before me to enable me to apply
myself to
whether an order of execution should be granted, and if so,
whether a reserve price should be set and what amount. The
submissions
that were made on behalf of the plaintiff were that in
light of the settlement agreement that had been concluded, a court
should
not be over-technical and that, as I understood the
submissions, compliance with the provisions of rule 46A and
chapter 10.17
fell away, or at least could be considerably
relaxed. Further, the plaintiff submitted that there was relevant
material before
the court, such as in the affidavit in support of
summary judgment, albeit that it was outdated, to enable the court to
declare
the property executable.
33.
I have several difficulties in accepting these
submissions in the present instance.
34.
The first is that there was no evidence before
the court that the defendants had agreed to what had been set out in
the plaintiff’s
supplementary practice note. As stated, there
was no appearance on behalf of the defendants. Nor was there anything
on record emanating
from the defendants or their attorneys confirming
the settlement. Given the seriousness of ordering execution against a
debtor’s
home, I was reluctant to accept without more that the
defendants were agreeable to their property being sold in execution
and in
the paucity of the ordinarily relevant factors.
35.
The second difficulty is that a debtor’s
acceding to an execution order does not necessarily absolve the court
from its responsibility
to make the necessary enquiry whether it is
appropriate having considered all the relevant factors that execution
should be ordered
against the debtor’s home.
36.
As observed by Makgoka JA
in his minority judgment in
NPGS
Protection
:
[3]
“
[28]
The
object of judicial oversight was emphasised in
Mkhize
v Umvoti Municipality and Others
2012 (1) SA 1
(SCA)
([2011]
ZASCA 184) para 26 as being to determine whether rights in terms of s
26(1) of the Constitution are implicated. This court
went on to
explain:
'In the
main a number of cases grappling with Jaftha sought to
arrive at that determination without accepting that judicial
oversight was required in every case. How, it must be asked, can a
determination be made as to whether s 26(1) rights are implicated,
without the requisite judicial oversight? We are unable to understand
the difficulty of applying the principle
that it is necessary in
every case
to subject the intended execution to judicial
scrutiny to see whether s 26(1) rights are implicated. To not
undertake such
an enquiry would in fact render the procedure
unconstitutional.'
37.
This
is not to find that in all instances a court must go behind the
debtors’ agreement that his or her home be sold in execution
as
the debtors may be best placed to decide what is in their interests
and it may amount to an infringement of their constitutional
right to
dignity in the context of contractual autonomy to second-guess
them.
[4]
But in the present
instance, in the absence of an appearance on behalf of the defendants
to confirm the last minute settlement
agreement or any evidence of
the circumstances giving rise to this last minute settlement
agreement, I am not in a position to
ascertain to what extent the
defendants were appreciative of the settlement to which they
have apparently agreed.
38.
As
also held in the minority judgment in paragraph 44 in
NPGS
Protection
,
“
[a]
court must always be reluctant to deprive a judgment debtor of the
right and protection of s 26(3), except in the clearest case
that the
judgment debtor has waived that right.”
[5]
The
emphasis by the majority decision in
NGPS
Protection
on the onus being on the debtor who is legally represented to place
certain information before the court relating to execution
against
his or her property is distinguishable as in that matter the debtor
remained legally represented in court throughout, including
on
appeal, and still did not place any evidence before the court. In
contrast, in the present matter, there was no appearance on
behalf of
the defendants before me and so more circumspection is required.
39.
On a practical level, the defendants have not
agreed to a reserve price, and which was specifically stated in the
plaintiff’s
supplementary practice note as being an outstanding
issue to be determined by the court.
40.
Rule 46A(5) expressly provides that every
application made in terms of the rule:
“
shall be
supported by the following documents, where applicable, evidencing:
(a)
the market value of the immovable
property;
(b)
the local authority valuation of the
immovable property;
(c)
the amounts owing on mortgage bonds
registered over the immovable property;
(d)
the amounts owing to the local authority
as rates and other charges;
(e)
the amounts owing to a body corporate as
levies; and
(f)
any other factor which may be necessary to
enable the court to give effect to subrule 8.
”
41.
Rules 46A(8) and (9) deal
inter
alia
with the setting of a reserve price. In
particular, rule 46A(9)(b) provides that:
“
In
deciding whether to set a reserve price and the amount at which the
reserve is to be set, the court shall take into account –
(i)
the market value of the immovable
property;
(ii)
the amounts owing as rates or levies;
(iii)
the amounts owing on registered mortgage
bonds;
(iv)
any equity which may be realised between a
reserve price and the market value of the property;
(v)
reduction of the judgment debtor’s
indebtedness on the judgment debt and as contemplated in subrule 5(a)
to (e), whether or
not equity may be found in the immovable property,
as referred to subparagraph (iv);
(vi)
whether the immovable property is
occupied, the persons occupying the property and the circumstances of
such occupation;
(vii)
the likelihood of the reserve price not
being realised and the livelihood of the immovable property not being
sold;
(viii)
any prejudice which any party may suffer
if the reserve price is not achieved; and
(ix)
any other factor which in the opinion of
the court is necessary for the protection of the interests of the
execution creditor and
the judgment debtor.
”
42.
Such information as is to be found in the papers
before is on a piecemeal basis and was largely outdated.
43.
For example, as appears above, the plaintiff
alleges in paragraph 18 of its affidavit in support of summary
judgment that:
43.1.
the defendants are indebted to the City of
Johannesburg as at 2 December 2020 in an amount of R115 596.44.
But the document
that is attached to the affidavit in support of the
averment is a municipal invoice from the municipality that is much
older, of
November 2019. Although the plaintiff sought to
address that difficulty by simultaneously emailing a more recent
municipal
invoice dated May 2021with its supplementary practice note
shortly before the matter was to be heard, this evidence needs to be
properly and timeously placed before court and not by way of an
attachment to a practice note by the plaintiff alone just before
the
application is to be heard;
43.2.
the plaintiff states that “
according
to the plaintiff the market value of the property is R2.6 million”.
This is the
ipse dixit
of
the plaintiff. No attempt is made to place any valuation before the
court as to the market value of the property, whether on
a willing
seller-willing buyer basis or on a fire-sale basis.
44.
In the absence of the necessary evidence to
decide upon an appropriate reserve price, I am unable do so.
45.
The
plaintiff sought that should the court not be inclined to grant the
order declaring the property specially executable, that
the court at
least grant the money judgment, particularly as the defendants
had agreed thereto. The full court of this Division
in
ABSA
Bank Limited v Mokebe
[6]
after
closely examining whether it was appropriate to separate the granting
of the money judgment from the execution order, held
in paragraph 29
that:
“
There is,
therefore, a duty on banks to bring their entire case, including the
money judgment, based on a mortgage bond in one proceeding
simultaneously. Should the matter require postponement for whatever
reason, the entire matter falls to be postponed and piecemeal
adjudication is not competent.
”
46.
The plaintiff further sought that should I not be
inclined to grant any of the orders sought that the application for
summary judgment
be postponed. Presumably the reason for the
postponement would be to enable the plaintiff to get its house in
order insofar as
it is able to do so, in relation to compliance with
the foreclosure requirements in rule 46A and chapter 10.17.
47.
I directed plaintiff’s counsel’s
attention to paragraph 3 of chapter 10.17 of the Practice Manual,
which provides that
“
where arrears are
low, and/or the period of non-payment is a few weeks / months, the
court may, in its discretion, postpone the
matter with an order that
it may not be set down before the expiry of 6 months and that notice
of set down should again be served”
and
that “
[a]t the adjourned date, an
affidavit should be filed setting out what efforts the plaintiff had
made to effect settlement and/or
prevent foreclosure.”
Plaintiff’s counsel submitted that as best as can be
ascertained from the papers, the defendants were some four months in
arrears. It also appears from the settlement apparently concluded on
the steps of the courtroom that the plaintiff in any event
was
prepared not to execute upon the execution order, if it obtained such
an order, for a period of six months and until 30 November
2021,
presumably to afford the defendants an opportunity to settle the
arrears. In the circumstances, I raised with the plaintiff’s
counsel whether it would be appropriate that an order be made that
the matter not be re-enrolled for six months.
48.
Plaintiff’s counsel submitted as the
plaintiff was prepared to delay execution on the basis that it
obtained an execution
order, should such an execution order not be
granted then it would be unfair to the plaintiff to hold it to the
six-month grace
period to which it may otherwise have been prepared
to agree.
49.
Given what would appear to now be the supine
approach adopted by the defendants in relation to the fate of their
property by not
appearing in court, I am disinclined to direct that
the plaintiff be precluded from re enrolling its
application for
summary judgment for a specified period. In any
event, pragmatically, it may be that by the time the application for
summary judgment
can be re-enrolled and heard, a period of six months
in any event would have lapsed and the defendants would have been
afforded
an opportunity to demonstrate that they can settle the
arrears.
50.
Ultimately, the application for summary judgment
is not ripe for hearing as there has not been substantive compliance
with rule
46A and chapter 10.17 and accordingly it is appropriate
that the matter be removed from the roll and that there be no order
as
to costs.
51.
The following order is made:
51.1.
The application for summary judgment is removed
from the roll.
51.2.
No order of costs is made in relation to the
enrolment of and the hearing of the opposed application for the week
of 31 May 2021.
Gilbert AJ
Date of
hearing:
1 June 2021
Date of judgment:
4 June 2021
Counsel for the
plaintiff:
Ms I Oschman
Instructed
by:
Bezuidenhout Van Zyl & Associates Inc
Counsel for the
defendants:
No appearance
Instructed
by:
Shaban Clarke Coetzee Attorneys
[1]
See in
particular paragraph 55.
[2]
See, for
example,
FirstRand
Bank Ltd v Folscher and Another, and Similar Matters
2011 (4) SA 314
(GNP) para 16 and 17, referring to
Jaftha
v Schoeman and others; Van Rooyen v Stoltz and others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) para 67; and as since expressly so stated in
Uniform Rule 46A(1)(b).
[3]
Above.
[4]
See,
for example
Brisley
v Drotsky
2002 (4) SA 1
(SCA), para 94 referring to
Mort
NO v Henry Shields-Chiat
2001
(1) SA 464
(C) at 475B-F.
[5]
[6]
Above.