SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 52390 /2023
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: YES
DATE: 22/1/25
SIGNAT URE
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LTD Applicant
and
ARMAND DE LANGE First Respondent
MELANI DE LANGE First Respondent
CP WESLEY AJ
JUDGMENT DELIVERED ON 22 JANUARY 2025
1. This is an application for default judgment, which is made in circumstances
where the respondent’s plea and defence was struck out on 20 May 2022 .
2. On 19 February 2014 the respondents concluded a loan agreement with the
applicant in terms of which the applicant lent and advance d an amount of
R685 700.00 to the respondents, for purposes of purchasing an immovable
property described as a unit consisting of -
(a) Section N o. 1 as shown and more fully described on Sectional Plan No.
SS9/1982, in the scheme known as GELRIA in respect of the land and
building situate at THE REMAINING EXTENT OF ERF 8[...] K[...]
EXTENSION 1 TOWNSHIP, LOCAL AUTHORITY: CITY OF
TSHWANE METROPOLITAN MUNICIPALITY of which section the floor
area, according to the said sectional plan, is 98 (NINETY -EIGHT)
SQUARE METRES in extent; and
(b) An undivided share in the common property in the scheme apportioned
to the said section in accordance with the participation quota as
endorsed on the said sectional plan .
(“the property”)
3. As security for the loan a continuing covering mortgage bond was registered
over the property in favour of the applicant , for the due and proper
performance by the respondents of their duty to repay the loan.
4. The mortgage bond provided, inter alia , that if res pondents fail ed to pay any
sum which was legally claimable from them by the applicant, then all amount
secured by the bond would become due and payable in full on demand, and the
bank would retain the right to institute proceedings for the recovery thereof and
for an order declaring the property executable.
5. The respondent s have defaulted on their payments towards the applicant . As at
6 November 2023 , the respondents were in arrears in the amount of
R638 964.26, which amount ed to 39.42 months of missed monthly instalments.
The arrears amount had increased considerably by the time that the application
was heard.
6. The applicants seek default judgment for payment of the amount of
R1 048 416.05 ; interest on that amount; that the property be declared
executable ; that a writ of execution is authorised in terms of Rule 46 as read
with 46A for the attachment of the property and the sale thereof in execution,
subject to a reserve price set by the court, and for payment of the costs of suit.
7. Notwithstanding that their plea and defence were struck out, the
respondents filed an opposing affidavit . In opposition to the application the
raised two purported defences, namely, first, that the court’s jurisdiction to
hear the matter is ousted by clause 13.1 of the mortgage bond, and second,
that the Terms and Conditions of the loan agreement were not attached to
the particulars of claim.
8. Clause 13.1 of the mortgage bond provides that if the Magistrates’ Court
has concurrent jurisdiction with the High Court over any dispute in terms of
the mortgage bond, then the mortgagors consent to the jurisdiction of the
Magistrate’s Court having jurisdiction. Contrary to what the respondent’s
assert, clause 13.1 does not oust this court’s jurisdiction. What the clause
does is to give the applicant an election to institute proceedings in the
Magistrates’ Court as opposed to the High Court .
9. Apart from the fact that the respondents’ plea and defence were struck out,
the fact that the Terms and Conditions of the loan agreement may not have
been attached to the particulars of claim is not a defence to the applicant’s
claims as they stand. It is a procedural issue that could have should have
been raised at an earlier point in time.
10. At the hearing of the matter the court specifically invited the first respondent,
who appeared in person for himself and on behalf of the second
respondent, to make any other submissions that he wished to make. The
first respondent had no other submissions to make.
11. Having regard to all of the facts and circumstances, default judgment falls to be
granted in favour of the applicant.
12. The forced sale value of the property is R650 000.00. The applicant has
proposed that a reserve price of R700 000.00 would be appropriate. The court
agrees.
13. Costs should follow the cause, on the party and party scale and on Scale A in
terms of Rule 69.
14. In the result I make an order in terms of the draft which is annexed hereto
marked “X”, which is dated and signed by me.
15. I must unfortunately record the following. On 22 January 2025 I received an
email from my erstwhile Registrar who informed me that she had not received
my judgment in this matter, which had been reserved . After I search ed my
records I found the judgment that I had prepared on 18 June 2024 , but I could
find no evidence that I had in fact forwarded it to my Registrar on that date or
any other date . This was my oversight for which I must tender my apologies to
the parties. The present judgment and the order attached constitute my
judgment and order in this matter.
CP WESLEY
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For applicant: Adv C Barreiro
instructed by Strauss Daly Attorneys
For the respondent s: In person
Date heard: 24 May 2024
Date of Judgment: 22 January 2025