REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER : A3114/20 22
In the matter between:
SIBONISO CALEB SITHOLE Appellant
and
THE BODY CORPORATE OF BONDI Respondent
This judgment was handed down electronically by circulation to the parties' and/or the parties'
representatives by email and by being uploaded to Case lines. The date and time for hand -
down is deemed to be 10h00 on 24 January 2025
___________________________________________ ______________________________
JUDGMENT
_________________________________________________________________________
WANLESS J (Bhengu AJ concurring)
Introduction
[1] This is an appeal by Siboniso Caleb Sithole (“ the Appellant ”) against an order (“the order”)
made on the 1st of September 2022 by M Nair (“the Magistrate”) in the Magistrates ’ Court for
the District of Johannesburg West, held at Roodepoort (“the court a quo”). The order w as
made pursuant to the court a quo having heard an opposed application (“the application”) on
the same day . Thereafter , on the 16th of February 2023, the Magistrate provided written
reasons (“the reasons”) for the order.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. YES
…………..…
BC WANLESS 24 January 2025
[2] In the application in the court a quo the Appellant was the Second Respondent; one
Sibusiso Derrick Ndebele (“Ndebele”) was the First Respondent and The Body Corporate of
Bondi (the Respondent in this appeal) was the Applicant. Only t he Appellant opposed the
application and there was no opposition thereto by Ndebele. In this Court , only the Appellant
has appealed against the order of the court a quo and Ndebele is not a party to these appeal
proceedings. The parties in this judgment shall be referred to as they are cited her ein, namely
the Appellant and the Respondent.
The order of the court a quo
[3] The order under case number 5293/2019, reads as follows :
“1 Applicant is granted leave to execute against the immovable property of which the
First and Second Respondents are the registered owners namely, Section 7 (being
door number 7), Bondi, Van Der Kloof Street, Roodepoort, in terms of the provisions of
section 66(1)(a) of the Magistrates’ Court Act 32 of 1944 (read with Rule 43A(8)(d) of
the Magistrates’ C ourt Rules.
2. The sale of execution referred to in paragraph 1 herein of the immovable property
of which the First and Second Respondents are the registered owners, namely, Section
7 (being door number 7), Bondi, Van Der Kloof Street, Roodepoort is suspended for 3
(three) months until 1 December 2022 to allow the First and Second Respondent’s (sic)
an opportunity to sell the said property or to obtain a bank approved buyer alternatively
for the First and Second Respondents to jointly or severally pay the judgment deb t,
together with the interests (sic) and costs as granted in favour of the Applicant, the one
paying the other to be absolved.
3. That the First and Second Respondents pay the costs of this application on a party
and party scale including the costs of the execution and sale of the immovable property
situated at Section 7 (being door number 7), Bondi, Van Der Kloof Street, Roodepoort.
4. This order is corrected in terms of section 36(1)(c) of the Magistrates’ Court Rules
postea at 13h25 in that it was omit ted to mention that a reserve price is set at
R1 150 000.00 (one million one hundred and fifty thousand rands) in terms of Rule
43A(8)(e) of the Magistrates’ Court Rules. ”
The grounds of appeal.
[4] As a result of the Appellant being unrepresented during the appeal process, both in the
court a quo and in this Court, there is no document clearly setting out the grounds relied upon
by the Appellant in this appeal. In passing, it should be noted that the Respondent, in light of
the fact that the Appellant was unrepresented as aforesaid, did not (corre ctly in the opinion
of this Court) oppose the matter on the basis that the Appellant had failed to comply with any
of the formal requirements involved in the prosecution of a civil appeal from the Magistrates’
Court to the High Court. Arising therefrom, th is Court , in the interests of justice and in
accordance with the principle of finality, condoned any such failures and the matter
proceeded before this Court on appeal.
[5] When ascertaining the Appellant’s grounds of appeal, this Court relied upon, inter alia ,
an affidavit deposed to by the Appellant in the Appellant’s “application for leave to appeal” in
the court a quo ; the reasons of the court a quo (“the reasons”) ; the Heads of Argument filed
on behalf of both parties in this Court and the viva voce argument placed before this Court
during the hearing of the appeal.
[6] From the aforegoing, it can be determined that the Appellant relies on two principal
grounds of appeal, namely:
6.1 that the Magistrate erred when finding that , having regar d to the facts of the matter,
it was appropriate to grant an order, inter alia , declaring the immovable property
specially executable in terms of the provisions of subsection 66(1) of the Magistrates’
Court Act 32 of 1944 (“the Act” ) read with the provisions of rule 43A of the Magistrates’
Court Rules (“the rules”) ; and
6.2 the Magistrate erred by failing to properly consider section 26 of the Constitution
and that the granting of the order by the court a quo would render the Ap pellant
homeless.
The reasons provided by the court a quo for the order granted.
[7] In the reasons the Magistrate found a number of facts to be proven by the Respondent .
This Court agrees with the factual findings of the court a quo and also finds that those facts
were largely (if not solely) common cause and/or could not be seriously disputed by either of
the parties in the application.
[8] Those facts , are, inter alia , the following, namely:
8.1 Ndebele and the Appellant are the registered co -owners of Section 7 (being door
number 7), Bondi, Van Der Kloof Street, Roodepoort (“the immovable property”) ;
8.2 the immovable property was purchased for R 609 000.00;
8.3 the Respondent in stituted an action against Ndebele and the Appellant for arrear
levies incurred during the period 22 October 2018 to 21 May 2019 in the sum of
R50 974,31 . Ndebele and the Appellant failed to defend the said action, and on the 10th
of October 2019 , the Resp ondent was granted default judgment in the sum of
R43 783,19, together with interest and costs ;
8.4 pursuant to the Respondent obtaining judgment by default the Respondent
obtained a writ of execution against the movable property of Ndebele and the Appell ant;
8.5 thereafter , on the 29th of September 2019 the Sheriff effected personal service of
the warrant of execution in respect of Ndebele’s movable property, The return of service
was one of Nulla Bona ;
8.6 on the 27th of August 2021 the Sheriff once again effected personal service of a
warrant of execution in respect of Ndebele’s movable property. As was the case on
the 29th of September 2019 , the return was one of Nulla Bona ;
8.7 also on the 27th of August 2021 the Sheriff effected personal service of a warrant
execution in respect of the Appellant’s movable property. As was the case in respect
of the two returns of service for Ndebele, the return in respect of the Appellant was
also one of Nulla Bona ;
8.8 on the occasions when the Sheriff was able to question both Ndebele and the
Appellant, as reflected in the various returns of service, both debtors advised the
Sheriff that they owned no movable assets which could be attached and sold in
execut ion in order to reduce their indebtedness to the Respondent;
8.9 the Appellant resides at the immovable property and t he immovable property is the
Appellant’s primary residence. Ndebele does not reside at the immovable property. In
the premises, the immovable property is not his primary residence;
8.10 neither Ndebele nor the Appellant have paid to the Respondent any amounts in
respect of the judgment debt. Further, no amounts have been received by the
Respondent from either of them in respect of le vies for the immovable property . The
amount in respect thereof continue s to accrue;
8.11 it has never been denied by the Appellant that, as at the 10th of October 2019
(the date of default judgment), he and Ndebele are liable to the Respondent in respect
of the judgment debt, together with interest and costs. Further, it is not in dispute that
the indebtedness of Ndebele and the Appellant to the Respondent continues to
increase as a direct result of non -payment of levies due to the Respondent. The only
“defence” proffered in the Appellant’s Answering Affidavit in this regard was that the
Appellant wished to be given an opportunity to settle the outstanding debt;
8.12 further and in this regard, the Appellant, in his Answering Affidavit , offered to pay
an amount of R 2 000.00 per month to settle the entire indebtedness. This offer was
made despite the fact that neither the Appellant nor Ndebele have made any payments
whatsoever, as set out above. It was also never seriously disputed and n o
documentary evidence was ever placed before the court a quo by the Appellant to
show otherwise , that, as at 1 April 2022 , the outstanding debt had increased to the
sum of R222 154.24;
8.13 when the court a quo granted the order on the 1st of September 2022 the
outstanding mortgage bond in respect of the immovable property was R 631 890.31;
the estimated market value of the immovable property was R1 400 000.00 and the
amount owing to the municipality was (as at the 7th of October 2020) the sum of
R77 088.06 .
The law
[9] Subsection 66(1) of the Act reads as follows:
“66. Manner of execution
(1) (a) Whenever a court gives judgment for the payment of money or makes an
order for the payment of money in instalments, such judgment, in case of failure
to pay such money forthwith, or such order in case of failure to pay any instalment
at the time and in the manner ordered by the court, shall be enforceable by
execution against the mov able property and, if there is not found sufficient
movable property to satisfy the judgment or order, or the court, on good cause
shown, so orders, then against the immovable property of the party against whom
such judgment has been given or such order ha s been made . “ (Emphasis added).
[10] Subrules 43A(2)(a)(i) and (ii), in dealing with the execution against residential immovable
property , states:
“(2)(a) A court considering an application under this rule must —
(i) establish whether the immovable property which the execution creditor
intends to execute against is the primary residence of the judgment debtor;
and
(ii) consider alternative means by the judgm ent debtor of satisfying the judgment
debt, other than execution against the judgment debtor's primary residence .
(Emphasis added). ”
[11] Section 26 of the Constitution reads:
“Housing : - (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 hom e, or have their home demolished, without an order of court
made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions. (Emphasis added).
[12] Subrule 43A( 8) states:
“(8) A court considering an application under this rule may—
(a) of its own accord or on the application of any affected party, order the inclusion in
the conditions of sale, of any condition which it may consider appropriate;
(b) ………………………………………………….
(i) …………………………………………………..
(ii) ………………………………………………….
(c) ………………………………………………….
(i) …………………………………………………..
(ii) ………………………………………………….
(d) order execution against the primary residence of a judgment debtor if there is no
other satisfactory means of satisfying the judgment debt;
(e) set a reserve price;
(f) ……………………………………………………
(g) refuse the application if it has no merit;
(h) make an appropriate order as to costs, including a punitive order against a party
who delays the finalisation of an application under this rule; or
(i) make any other appropriate order .
(Emphasis added) “
Discussion
[13] Was it appropriate for the court a quo to grant an order, inter alia , declaring the
immovable property specially executable in terms of the provisions of subsection
66(1) of the Act read with the provisions of rule 43A of the rules?
[14] It was submitted , on behalf of the Respondent , that despite subrule 43A(1) stating that
the rule (rule 43A) , in general and very broad terms, is applicable to all matters in which
execution against residential immovable property is sought, the real enquiry which this
Court should make , in determining whether the court a quo erred in granting the
executability order that it did, which necessitates the applicability of the rule, starts with the
provisions of subrule 43A(2)(a). The enquiry which the court must undert ake is as set out in
subparagraphs (i) and (ii) of that subrule (See paragraph [10] ibid).
[15] In this regard, it is common cause that the immovable property against which the
Respondent intends to execute is the primary residence of the Appellant but is not the primary
residence of Ndebele . It was further submitted by the Respondent that upon a proper
interpretation of the aforesaid rule (rule 43A) a clear distinction is drawn between residential
properties which are the primary residence of the judgment debtor and those which are not.
This Court is in agreement therewith. Not only is this clear from a simple reading thereof but
is clear also from the various authorities relied upon by the Respondent’s Counsel during
argument before this Court .( ABSA Bank Limited v Kobe; ABSA Bank Ltd v Vokwani; and
Standard Bank of South Africa Ltd v Colombick and Another (2018/00612; 2017/48091;
2018/1459; 2017/35579) [2018] ZAGPJHC 485; 2018 (6) SA 492 (GJ) (12 September 2018)
). In addition thereto, this was never dispu ted by the Appellant, either in the court a quo or
during the hearing of this appeal. These authorities, whilst they mainly deal with the provisions
of rule 46A in the High Court, are equally applicable to matters being decided in terms of rule
43A in the Magistrates’ Court.
[16] Further, the Respond ent (correctly in the opinion of this Court), citing in support thereof
the matter of Standard Bank of South Africa Ltd v Hendricks and various other matters 2019
(2) SA 620 (WCC), submitted that the primary test is whether a person will lose his or her
home, meaning losing his/her security of tenure. In the premises, it was submitted ( once
again correctly in the opinion of this Court) that rule 43A was promulgated in order to protect
individual homeowners , who may lose their primary residences/their securi ty of tenure and
not judgment debtors who have investment properties which are not occupied by them.
[17] Following thereon, it is clear that rule 43A does not find application insofar as Ndebele
is concerned and the order declaring the immovable property s pecially executable was
properly gra nted against him. This is simply because, as is abundantly clear from the
application papers and as set out both in the reasons and in this judgment, the Respondent
has obtained judgment against Ndebele and has not been able to execute on the judgments
(evidenced by the two Nulla Bona returns obtained against Ndebele, dealt with above) and/or
the fact that the judgment has not been satisfied (also dealt with above). It is also imperative
to note that not only d id the Respondent make out a proper case for the relief sought in the
court a quo in respect of Ndebele but Ndebele elected not to oppose the granting of that relief.
Moreover, he has elected not to appeal the decision of the court a quo .
[18] Insofar as the Appellant is concerned the provisions of rule 43A clearly apply in light of
the fact that it is common cause that the immovable property is the Appellant’s primary
residence. The principal (if not sole) reason as to why the Appellant avers that the Ma gistrate
erred in granting the order (the first and very broad/general ground of appeal as ascertained
by this Court above) was that the Appellant allegedly signed the Nulla Bona return on the 27th
of August 2021 on behalf of Ndebele. Arising therefrom, it was submitted by the Appellant
that it could not be held that all alternative means had been considered by the Respondent
of “satisfying the judgment debt other than execution against the judgment debtor’s primary
residence” as set out in subrule 43A(2)(a)(ii) (See paragraph [10] ibid).
[19] This submission was rejected by the Magistrate for various reasons. Firstly, the
Magistrate noted (correctly) that the Appellant had failed to make any averments whatsoever
in respect of this submission in his Answering Affidavit in the application before the court a
quo. In the premises, the Respondent was not provided with the opportunity to deal with same
in its Replying Affidavit . At no stage whatsoever did this allegation, later made by the Appellant
in argument and unsupported by any evidence by way of affidavit, constitute an issue to be
decided by the court a quo . It therefore cannot be said that the Magis trate erred when deciding
that the Respondent had considered means of satisfying the indebtedness of the Appellant
other than execution against the Appellant’s primary residence .
[20] In addition to the aforegoing it is also clear that , insofar as the Appellant wishes to
base his submission that the failure of Ndebele to allegedly sign the Nulla Bona return of the
27th of August 2021 personally, somehow results in a failure by the Respondent to comply
with the provisions of subrule 43A(2)a)(ii), completely ignores the existence of the earlier
warrant of execution against the movable assets of Ndebele giving rise to the Nulla Bona
return dated 29th of September 2019. Th e validity of the 2019 Nulla Bona return was also not
disputed by the Appellant in his Answering Affidavit.
[21] As to whether or not Ndebele signed the 2021 return or not has no impact whatsoever
in this matter. It is not a requirement (and it was never submitted by the Appellant that it was)
of either the Act or the rules that a warrant of execution, or a return of service in respect
thereof, be signed by th e judgment debtor. What is of relevance is the return itself. In all
instances the returns as dealt with in the Respondent’s Founding Affidavit and attached as
annexures thereto, not only contain the Sherrif’s remarks that the warrants of execution in
respect of the movable assets of both Ndebele and the Appellant were personally served
upon both but also that both had stated that they did not own sufficient movable assets to
satisfy the judgment debt. It is trite that the Sheriff’s returns of service are prima facie proof
thereof. If the Appellant wished to seriously challenge the correctness thereof the Appellant
bore the onus (or, at the very least, an evidentiary burden) to do so. As dealt with above, this
issue was never dealt with, at all, in the Appel lant’s Answering Affidavit. In the premises, the
Appellant failed to discharge the onus/evidentiary burden incumbent upon him and the court
a quo was entitled to accept the contents of the various returns when deciding that the
Respondent had considered alternative means of satisfying the judgment debt other than
execution against the judgment debtor’s primary residence . Finally, as dealt with abov e, the
application was not opposed by Ndebele.
[22] In addition to the aforegoing and with regard to other factors which gave rise to the
decision of the Magistrate to grant the order, it should be noted that :
22.1 the Appellant was and remains in what ma y best be described as a “precarious
financial position”. No evidence was placed before the court a quo that any “lucrative
agreements with local and international donors” ever came to fruition or on what basis
he would be entitled to the proceeds thereof;
22.2 arising from, inter alia , the Appellant continuing to be in arrears with the levy
payments and no payments having been made by him or Ndebele in respect thereof (or
in respect of the judgment debt) the tender made by him to pay R 2 000.00 per month
not only amount s to a “puff” but also, considering the amount of the total indebtedness
to the Respondent (which had continue d to grow) of R 222 154.24, there was no
possibility of the Appellant being able to discharge that indebtedness as at 1 September
2022 or at any stage in the reasonably near future;
22.3 on the Appellant’s own version there was no available movable property which the
Respondent could attach, and which could be sold in order to satisfy the judgment debt,
and the Respondent ha d alread y executed on the movable pr operty belonging to the
Appellant;
22.4 it is clear from the application papers (subparagraph 8.13 ibid) that there is
substantial equity in the immovable property which would ultimately result in the
Appellant receiving a fairly substantial amount of money should the immovable property
be sold in execution;
22.5 once again, on the Appellant’s own version, whilst he states that he can afford to
pay R 2 000.00 per month (in respect of arrear levies only), he fails to disclose what he
is presently paying in respect of “loan finance” or what income he is actually receiving;
[23] In the premises, this Court finds that the Magistrate did not err when finding that,
having regard to the facts of the matter, it was appropriate to grant an order, inter alia ,
declaring the immovable property specially executable in terms of the provisions of
subsection 66(1) of the Act read with the provisions of rule 43A of the rules. On the common
cause and proven facts of this matter the Magistrate, in the exercise of the court a quo’s
discretion, was entitled, in terms of, inter alia, subrule 43A(8)(g) , to order execution against
the prima ry residence of the Appellant, as a judgment debtor, since there was no other
satisfactory means of satisfying the judgment debt (See pa ragraph [12] ibid ).
Section 26 of the Constitution
[24] Implicit in the finding above is that the Magistrate found that the Appellant’s
constitutional rights in terms of section 26 of the Constitution were not, on the facts of this
matter, in any way infringed. In coming to this finding the Magistrate correctly considered the
relevant factors as set out by the Constitutional Court in the matter of Jaftha v Schoeman &
Others ; Van Rooyen v Stoltz & Others 20 05 (2) SA 140 (CC). The consideration of these
factors and the factual findings made by the court a quo arising therefrom, are clearly set out
in the reasons provided by the Magistrate. In the premises, this judgment will not be burdened
unnecessarily by si mply repeating those facts and the conclusions reached by the
Magistrate. Suffice it to say, this Court agrees therewith.
[25] Whilst our courts recognise that execution against a judgment debtor’s primary
residence should always be a last resort, it has also been held that it should be accepted that
execution in itself is not an odious thing and is part and parcel of normal economic life. (See
Gundwana v Steko Development Corporation & Others 2011 (3) SA 608 (CC) ) .
[26] In addition to the aforegoing, the Magistrate also took into consideration that the
difference between the market value of the immovable property and the amounts owing
towards creditors (including the judgment debt), resulted in a surplus of R724 248,62. At the
same time, as correctly pointed out by the Respondent, the Appellant will no longer be
required to make payments in respect of the mortgage bond over the immovable property
(paid from the proceeds of the sale in execution) or levies in respect of the immovable
property. This sum (or at least a significant amount thereof) could be utilised by the Appellant
towards securing accommodation, thereby relieving any prejudice the Appellant avers he
would suffer if the Respondent executed against the immovabl e property.
[27] Further and in this regard, in order to protect the rights of both parties but with particular
reference to the Appellant and Ndebele, the Magistrate included paragraphs 2 and 4 of the
order (Paragraph [3] ibid). These orders, apart from the procedural safeguards followed by
the Respondent in obtaining the default judgment against Ndebele and the Appellant, further
entrenched the Appellant’s rights in terms of section 26 of the Constitution. In the premises,
the Magistrate, in the exercis e of the discretion vested in the court a quo in terms of subrules
43A(8)(a) and (e), added further conditions to the Respondent being entitled to execute
against the immovable property, thereby further protecting the constitutional rights of the
Appellant (See paragraph [12] ibid).
Conclusion
[28] In light of the aforegoing, it is clear that the Magistrate did not err in finding that the
Respondent had taken all reasonable steps to attempt to receive payment of the judgment
debt before it applied to t he court a quo to execute against the primary residence of the
Appellant; there was no other satisfactory means of satisfying the judgment debt and that the
Appellant’s constitutional right to housing had not been infringed. Arising therefrom, the
appeal should be dismi ssed.
Costs
[29] The principles applicable to the issue of costs are trite. Costs should normally follow the
result unless there are unusual or exceptional circumstances. No such circumstances were
brought to the attention of this Court. In the premises, and in the exercise of its wide and
general discretion in respect of the issue of costs, this Court finds that the Appellant is liable
to pay the costs of this appeal.
Order
[30] This Court makes the following order:
1. The appeal is dismissed.
2. The Appellant is to pay the costs of the appeal.
_____ ____ ________
BC WANLESS
Judge o f the High Court
Gauteng Division, Johannesburg
Heard : 11 June 2024
Judgment : 24 January 2025
Appearances
For App ellant : In person
For Respondent : Adv S McTurk
instructed by Milton Attorneys