REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE No:7270/2023 and 7516/2023
( 1)
(2)
(3)
In the matter between:
NEDBANK
and
LUCAS AND ANDRE
VAN DER WESTHUIZEN (PTY)L TO
LUCAS AND LOUIS
VAN DER WESTHUIZEN (PTY)L TD
LUCAS MARTHINUS
VAN DER WESHUIZEN
JUDGMENT PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
THIRD RESPONDENT
Page -2
DIAMOND A J:
[1] The two above applications were all simultaneous since the two
applications deal with substantially the same questions of fact and
law.
[2] The Plaintiff, NEDBANK extended finance to the First and Second
Defendants and the this Defendant entered into suretyship for the
indebtedness of the first and Second Defendants towards
Nedbank.
[3] There were various loan agreements entered into at various dates
and the specific details thereofare not important. What is important
is that the indebtedness of the First and Second Defendants are
properly secured by way of mortage bonds over several portions
of farms, and relevant for purposes of this judgement several
portions of the farm called Mooiwater Estates 145, K.R. Limpopo.
[4] It is common cause that the First and Second Defendants fell into
arrears with their repayment obligations in terms of the loan
agreements .
[5] The Plaintiff issued summons against the Defendants for
judgement of the amounts outstanding in terms of the loan
agreement as well as an order that the immovable properties
securing the indebtedness in terms of the loan agreement , are to
be declared executable .
Page -3
[6] The Defendant entered appearance to defend the action and filed
a plea whereupon the Plaintiff applied for summary judgement.
[7] It appears from the papers that the parties tried to come to some
kind of an understanding regarding the arrears, however the
attempts failed, and the summary judgement proceedings
proceeded on 5 March 2025.
[8] The Plaintiff also filed an application in terms of rule 46(1) and
Rule 46A.
[9] The Plaintiff relied on the usual certificates of indebtedness , which
in terms of the contract between the Plaintiff and the Defendants
served as prima facie evidence.
[1 O] In defence to the certificates of indebtedness , the Defendants
pointed very vaguely to an alleged uncertainty on the
certificates and stated that the Plaintiff needed to clarify these
aspects and that consequently reliance cannot be placed on
the certificates.
[11] On the date of the hearing counsel for the Defendants
abandoned reliance on this ground of defence. In my view, this
abandonment was well justified. There is a wealth of authority
that such an approach to trying to resist the prima facie status
is ill-conceived. In the light of this abandonment , I do not
elaborate on this aspect any further in this judgement.
Page -4
[12] Counsel for the Defendant indicated that the opposition to the
summary judgement and the applications in terms of rule 46
and 46A, are opposed based on the fact that in terms of
authority, an application for summary judgement as well as an
application for rule 46 and 46A, have to be enrolled and
adjudicated upon simultaneously, that application for both
should be dismissed , since the properties cannot be declared
executable based on the fact that the farm Mooiwater is the
primary residence of the son of the third Plaintiff as well as some
farmworkers .
[13] In its application to declare the immovable property executable,
and in its attempt to comply with the stipulations of rule 46A, the
Plaintiff states that despite attempts to establish whether any of
the portions of properties served as the primary residence of
the type of person/s who is/are protected by rule 46A, they
could not establish that and they simply were unable to play
such facts before the court.
[14] In response to this allegation, the Defendants states that it is
simply not sufficient for the Plaintiff stated they could not
establish the section 46A status of the farms.
[15] The Defendants allege that the farm Mooiwater serves as the
primary residence of a number of farmworkers as well as the
son of the third Defendant and his family.
Page -5
[16] Now, to start with the allegation that the farm serves as primary
residence of the farmworkers: This allegation cannot assist the
Defendants. In my view the same considerat ions apply in this
case as the considerations referred to in Bestbier and others v
Nedbank Limited1. In terms of that Constitutional Court
judgement , in circumstances like these, the security of residents
of farmworkers is a secured by Extension of Security of Tenure
Act, 1997 (Act 62 of 1997). The court stated that an order to
declare immovable property executable does not infringe on
any constitutional rights to housing of farmworkers.
[ 17] That leaves the allegation with regard to the fact that relatives
of the third Plaintiff use the form Mooiwater as residence.
[18] In my view this allegation does not assist the Defendants either.
The Plaintiff alleges explicitly that they tried to establish the
section 46A status of the properties but was unable to do so.
[19] In response to this statement of the Plaintiff, the Defendants
simply state that the relative of the Third Defendant use the farm
Mooiwater as residence . This statement is a very vague
statement , given the fact that there are several portions of
Mooiwater and there is no explanation as to which portion the
claim is made.
1 [ IJ [2024] JOL 64354 (CC) P. 84 -87.
Page -6
[20] As is also clear from the Supreme Court of Appeal decision of
Petrus Johannes Bestbier and Others v Nedbank Limited2• in
which the court indicated that Rule 46A, was not applicable to
that case because the Defendants failed to show that they fall
under the category of persons whose interests are protected by
section 46A. I do not understand this remark necessary to mean
that the Defendant has an onus to prove that Rule 46A is
applicable , however, it means at the very least that given the
status of allegations before the court, there can be an
evidentiary duty on the Defendants to produce credible
evidence that would point to a conclusion that Rule 46 A is
applicable and that its stipulations should be complied with.
[21] In this case, the Defendants failed to place such evidence
before this court, and I am of the view that Rule 46A is not
applicable to this case.
[22] I consequently order as is prayed for in the prayers of the
summons of the Plaintiff.
G DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT,
2 (Case No. 150/2021) L2022J ZASCA 88(13 June2022) Par 32.
APPEARANCES :
FOR THE PLANTIFF
INSTRUCTED BY
FOR THE DEFENDANT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT Page -7
LIMPOPO DIVISON: POLOKWANE
ADV. J.P. MORTON
BALOY SWART & ASSOCIATES
INCORPORATED
ADV. Z.A. TEPERSON
JJ JACOBS ATTORNE YS
05 MARCH 2025
14 MARCH 2025