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: 97703/2015
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
DATE 31 JANUARY 2024
SIGNATURE
In the matter between:
THE BODY CORPORATE SILVER STREAM Applicant
and
NOMVULA FREDA MATHIBELA
(Identity No: 4[...]) Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 31 January 2025.
JUDGMENT
INTRODUCTION
[1] The body corporate of Silverstream [the applicant] brings an application to
declare an immovable property specifically executable and for an order authorising
the issuing of a writ of execution against such immovable property in accordance
with the provisions of rule 46 and 46A of the Uniform Rules of Court. The property
is known and described as Unit 1[...] in the Sectional Title Scheme Silver Stream,
Scheme No. 854/2004, Halfway Gardens, Extension 23, 1270, Registration
Division IR, Gauteng Province , held by deed of transfer ST 5127/2009 [the
property] [attachment and execution relief] .
[2] This application is brought for the respondent’s failure to pay her monthly
levies in respect of the property to the applicant. Default judgment for the judgment
debt was sought and granted in terms of Uniform Rule 31(5) on the 22 July
2016 .This is almost a decade ago. J udgment was granted for the capital sum of
R81 396.95 [capital], together with interest at a rate of 9% per annum from the
date of the summons to date of final payment and costs of R200.00 plus Sheriff’s
fees. The applicant, prior to launchi ng this attachment and execution relief sought
to sequestrate the respondent ’s estate. However, Fourie J discharged the
provisional order based on an argued point in limine raised by the respondent’s
daught er, Ms Pearle Mathibela , a lack of authority point . Notwithstanding this
outcome, the respondent has to date not attempted to rescind the default
judgment, nor to stay and set aside the warrant of execution against her movable
assets nor has the full outstanding capital , let alone the accrued interest and costs
been settled . In consequence , the default judgment and the fact that the
respondent did not possess sufficient cash or movables to pay the judgment debt
stands . These jurisdiction al facts remain undisturbed .
[3] As a result of the litigious history, this application was both served on the
respondent’s erstwhile attorneys Sambo -Mlahleki Attorneys [ respondent’s
attorneys] and on Ms Pearl Mathibela . Out of an abundance of caution it too was
served on the respondent personally via sheriff on the 9 February 2024. Both the
Local Municipality and Standard Bank , the preferential creditor , received notice of
the application in July 2022 via Sheriff . All the parties received notice of the date
of the hearing.
[4] The respondent did not appear at the date of the hearing, but her daughter,
Ms Pearl Mathibela’s appeared acting in person.
THE PROCEDURAL LANDSCAPE OF THE APPLICATION BEING PLACED ON
THE OPPOSED ROLL
[5] The notice of motion initiating this application, indicated that if no intention
to oppose the application was received, the matter would be enrolled on the
unopposed roll for the 22 August 2022 . On the 18 August 2023, two (2) days prior
to the matter being heard on the unopposed roll , the respondent attorneys formerly
delivered a notice to oppose the application . Such notice, indicated to the
applicant that they were acting on behalf of the respondent and that, all further
documents and pleadings relating to this application, could be served at their
offices . Other than this procedural step, the record demonstrates that the
respondent ’s attorneys only authored an email to the applicant’s attorneys in which
they stated the follow ing:
“We refer to the above matter and transmit herewith our client’s notice of
intention to oppose (the respondent only -own emphasis).
Given the history of this matter and the serious consequences of the order
sought, it has taken longer than initially anticipated to finalise the opposing
papers. Nonetheless we expect to be in a position to deliver the papers by
the end of the week or at the beginning of next week (own emphasis). We
trust that in the meantime you will remove the application from the
unopposed roll .”
[6] The respondent attorneys did not, as a fact, file opposing papers at all , let
alone on behalf of the respondent. Nor were any opposing papers delivered by the
end of the that week (22 August 202 2) nor the beginning of the following week by
them . This email appears to be the last step taken by the respondent’s attorneys in
the furtherance of the respondent’s interests in this application. Notwithstanding no
formal withdrawal has been served , no a practice note , joint minute nor heads of
argument were served in accordance with this Divisions directive . By design or by
instruction the respondent herself failed to depose to any evidence pertaining to
the subject matter of this application. This would include deposing to a
confirmatory affidavit to support any other evidence that may pertain to her, and
which would be relevan t. Notwithstanding , the applicant ’s attorney served all the
papers relating to this matter on the ir offices , including the notice of set down for
the date of the hearing of this application. This procedural inaction requires further
enquiry.
[7] Now, that it has been established that the respondent’s attorneys were not ,
as they maintained, finalising opposing papers on behalf of the respondent , what
did transpire during their inaction ? On the 20 August 2022, Ms Pearl Mathibela.
deposed to an affidavit which headed “RESPONDENT’S EXPLANATORY
AFFIDAVIT (REMOVAL OF THE APPLICATION FROM THE UNOPPOSED ROLL
TO THE OPPOSED ROLL )”. The affidavit was uploaded without proof of service.
Be that as it may, a lthough the explanatory affidavit is headed “ RESPONDENT’S
EXPLAN ATORY AFFIDAVIT ”, the heading is misleading in that the content was
not confirmed by the respondent under oath in so far as its content related to her.
It therefore simply was an affidavit by Ms pearl Mathibela.
[8] At this juncture it is important to note that the respondent’s attorney have
never come on record and do not act for Ms Pearl Mathibela. In the explanatory
affidavit, Ms Pearl Mathibela states that she is a duly admitted Advocate in private
practice and the daughter of the respondent. The purpose of the explanatory
affidavit was set out and three reasons were provided, therefore. The first reason
proffered was to confirm that the application was opposed, and reference was
made to the notice to oppose. The second reason proffered was to confirm that
the process of finalising the opposing papers was currently underway , implying
underway as at the 20 August 2022, ostensibly placing the applicant at ease that
the notice to oppose by the respondent was not a ruse and that an answer to the
claim would be forthcoming. Lastly, Ms Pearl Mathibela stated that she wished to
safeguard her mother’s rights specifically as they related to the costs of the Court
appearance on the unopposed roll for Monday, 22 August 2022 . No further rights
of the respondent were alluded to. In this way , Ms Pearl Mathibela requested that
the cost be reserved for the determination of the main application. The importance
of this affidavit lies therein that the ownership of the property is confirmed as being
that of the respondent, and that Ms Pearl Mathibela merely occupie d the property.
In paragraph 5 of the explanatory affidavit she states :
“5. The home sought to be declared specifically executable is in fact my
home – although registered in my mother’s name (own emphasis - the
respondent) as I have said, my mother has never had any dealings
with the cited applicant or its managing agent, Pretor Group. I am
responsible for all levies and charges lawfully raised by the Body
Corporate and have been so responsible since 2009.”
[9] Curiously, Ms Pearl Mathibela who confirms that she is liable for the levies,
ostensibly as a result of an inter partes arrangement with the respondent, never
acted in the respondent’s interests by challeng ing the default judgment taken in
her mother’s absence based on her admission of liability nor, did she attempt to
entered into any payment arrangement with the applicant through their attorneys
to pay , at least , the capital in full nor, has she tried to provide movable s or
disposable property of her own for realisation to satisfy the warrant to assist the
respondent, her mother. This inaction to pay a debt she states she is responsible
for, at the cost of the respondent, her mother speaks to her bona fides .
[10] Further foreshadowed in paragraph 8 of this affidavit , Ms Pearl Mathibela
states that s he will depose to the opposing affidavit and the necessary
condonation in the matter as she possesses the personal knowledge relating to
the facts arising. Unfortunately, an affidavit opposing the attachment and
execution relief was only uploaded onto CaseLines the following year in June
2023 . No proof nor manner of service was forthcoming . However as appears , the
objective to have the application removed from the unopposed roll to the opposed
roll and not at the respondent’s cost, was achieved.
UNIFORM RULE 7 NOTICE
[11] The applicant contended in argument that the uploading of the of the
opposing papers triggered it to file a Uniform rule 7 notice [rule 7 notice] on the
respondent . Counsel for the applicant submitted that if the date of the opposing
papers, the 4 June 2023 is considered then , the applicant had complied with the
provisions of rule 7(1). The veracity of th is submission must borne out on the
papers. The difficulty the Court has is that the rule 7 notice is dated the 1 June
2023, a date prior to the 4 June 2023. As no other date was provided for the
applicant’s knowledge of the opposing papers, the 4 June 2023 was accepted by
this Court. In consequence the submission can ’t be correct.
[12] The rule 7 notice was served personally on the respondent. The content of
the notice challenged Ms Pearl Mathi bela’s authority to act on behalf of the
respondent and called upon Ms Pearl Mathibela to provide proof of her authority to
act on behalf of the respondent. Considering the heading of the opposed papers
being referred to as “ THE RESPONDENT’S OPPOSING AFFIDAVIT ” and due to
the absence of any affidavit concerning a response by the respondent to the
attachment and execution relief, one understands the confusion caused by the
papers filed.
[13] However , Ms Pearl Mathibela does not state under oath that she acts on
behalf the respondent but that the facts are in her personal knowledge and that
she deposes to the same as a party affected. Uniform rule 6 makes provision for
any person to file papers.
[14] The respondent nor Ms Pearl Mathibela answered the rule 7 notice. Having
regard to the above the challenge cannot be su stained and must fail.
CONDONATION
[15] As foreshadowed in the explanatory affidavit, Ms Pearl Mathibela seeks
condonation for the late filing of the opposing papers in terms of uniform rule
46A(8)(c). Moving from th e allegations she made under oath in the explanatory
affidavit that opposing papers “ would be filed shortly ”, shortly translated into
approximately 10 (10) months before the papers were delivered . The reasons for
the delay and explanation set out to enable this Court to understand how it really
came about, during that time and to assess the conduct and motive of Ms Pearl
Mathibela, alternatively the respondent, was set out and explained in a single
paragraph , paragraph 89. The thrust of the explanation, being the time, she spent
to “– unearth the deceptive accounting employed by Pretor Group ”, the time it took
to respond to both the summons and a summary judgment application in the
Randburg Regional Court , a matter too relating to outstanding levies of the same
property and , on loadshedding . Notwithstanding, she stated under oath that the
process, the process of responding to the summons and the summary judgment
as well as the process relating to the deceptive unearthing of the Pretor Group ,
was completed in September 2022. No further explanation is set out to explained
the further and continued delay from September 2022 to June 2023, let alone with
any particularity. This failure not only makes it impossible to ascertain , with any
certainty whatsoever what the reason for the delay was. It also, precludes the
Court of being in a position to exercise its discretion based on any facts for that
period . A period of delay for approximately 9 (nine) months therefore remains
unexplained. The unexplained delay period is an unreasonable period .
[16] Condonation is not for the taking and the reasons must be properly
explained with sufficient particularity , covering the entire period of delay1. It is
further trite that good cause must be shown for the question of prejudice to arise.2
To ascertain whether good cause has been demonstrated this Court considered
the content the opposing papers as a whole to ascertain whether a triable defence
existed which Ms Pear Mathibela wished to prosecute in earnest and found that ,
notwithstanding the many aggrievances raised by Ms Pearl Mathibela and
accepting her own version, her aggrievance was with the Pretor Group and their
accounting methods. Notwithstanding during that period of 9 (nine) months, Ms
Pearl Mathibela , who all eged under oath that she was an admitted advocate and
in consequence not a layman at sea in a litigation had not joined the Pretor Group
nor herself as an interested party. The Court finds that that such inaction
demonstrates a lack to bring this matter to finality.
1 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008
(2) SA 472 (CC) at 477E -G.
2 Standard General Insurance Co Limited v Eversafe (Pty) Ltd 2000 (3) SA 87 (W).
[17] Furthermore , none of the jurisdictional facts entitling the applicant’s
entitlement to the attachment and execution relie f was disturbed. As to the
authority point raised in limine from the bar, such was ill conceived as the oral
submissions did not deal with the point of authority but rather possible hearsay
evidence. Be that as it may, the deponent to the founding papers clearly stated
under oath that she possessed personal knowledge of the facts, unless otherwise
expressed. Such ‘otherwise expressed’ was by reference to phrases like, “I have
been advised …”. It too , is common cause that that only the following payments
were made by Ms Pear Mathibela subsequent to the default judgment being
granted since default ju dgment being granted, namely :
17.1. 8 December 2016 R 4,000.00
17.2. 9 December 2016 R 5,000.00
17.3. 4 July 2017 R 500.00
17.4. 26 July 2018 R10,272.92
totalling payments R19,772.92
[18] In consequence, as at the date of the hearing the undisputed fact that the
outstanding capital sum claimed by the applicant was still outstanding and that the
veracity of Ms Mathibela’s submissions in the record that she could not make
payments to Pretor due to their accounting system was highly diluted , particularly
by on her own concessions. Considering all the facts no triable defence to the
attachment and relief application was demonstrated as against the unreasonable
and unanswered delay. This Court furthermore took into account that Ms Pearl
Mathibela nor the respondent ha d made any further payment arrangements with
the applicant’s attorneys nor did either one of them tender payment into an y
attorney’s trust account to show any good faith and or a willingness to at least pay
the judgment debt. Considering all the fa cts and taking all the oral submissions
into account, condonation was not granted. This Court made the ruling, read
certain of the reasons into the record at that time so that the matter could proceed .
Such reasons are amplified by th e reasons in this judgment. Ms Pearl Mathibela
immediately required reasons for the ruling. The Court explained that the reasons
were read into the record and that a copy of the record would be transcribed. The
court encouraged Ms Pearl Mathibela as a person affected by the attachment and
execution relief to remain in Court and explained that she could make further
submissions to assist the Court with the adjudication of the relief. She remained in
Court and made further submissions at the relevant time.
[19] An application to strike certain paragraphs of such opposing affidavit for
want of relevance, was brought by the applicant . As a result, that such affidavit
was not admitted into evidence due to late filing, the need to entertain the
application was absent . This Court now consider s the attachment and execution
relief having regard to the founding papers, the explanatory affidavit and the oral
submissions made by both the applicant and Ms Pearl Mathibela , including further
documents called for .
ATTACHMENT AND EXECUTION RELIEF
[20] On the common cause facts, the property is residential property and as
such the provisions of U niform R ule 46 A (1). It is an undisputed fact that the
judgment debtor, the respondent is the register ed owner of the property and that
the property is not her primary residence. The respondent resides in Groblersdal,
a property owned by Ms Pearl Mathibela . Such fact submitted into the record
during argument by Pearl Mathibela. The property is occupied by Ms Pearl
Mathibela who considers the property her home . Flowing from the respondent ’s
ownership ,3 section 3(1)(f) of the Sectional Titles Schemes Management Act, 8 of
2011 [Title Schemes Act] applies. The application of the section was not disputed.
3 In terms of the Sectional Titles Schemes Management Act, 8 of 2011, an “owner” means, “ in
relation to a unit or a section or an undivided share in the common property forming part of such
unit, means, subject to subsection (5), the person in whose name the unit is registered at the deeds
registry in terms of the Sectional Titles Act or in whom ownership is vested by statute, including the
trustee of an insolvent estate, the liquidator of a company or close corporation which is the owner,
the executor of an owner who has died, or the representative of the owner, who is a minor or of
unsound mind, recognised by law, and ‘‘owned’’ and ‘‘ownership’’ shall have the corresponding
meaning .”
In consequence, the applicant is entitlement to raise levies and the owner’s
statutory obligation to pay undisputed. This is stated notwithstanding any inter
partes arrangement the respondent may have with Ms Pearl Mathibela.
[21] Applying the reasoning of the Constitutional Court’s [CC] in the Bestbier
matter4 in respect of residential property when the judgment debtor is the owner
but does not occupy the property the Court’s enquiry in respect of rule 46A does
not include sub -rule 46A(2)(a)(i), 46A(2)(b) and 46A( 8)(d)5. The CC further re -
iterated that the remaining provisions apply including, sub -rule 46A(3)(b) . It is for
this purpose that this Court considered the submission of Ms Pearl Mathibela, as a
party that may be affected by the sale in execution . At this juncture this Court
records that it was a grave pity that the voice of the respondent was not
specifically heard as she , notwithstanding personal service of the application, in
that she did not: prosecute her opposition in any way nor by confirming any
evidence proffered by Ms Pearl Mathibela , nor did she provide any evidence in
terms of sub -rule 46A(6) , nor did she make any submissions in respect of the Rule
46A relief to assist this Court and, nor did she attempt to bolster the submissions
made by her daughter, including the terms of the inter partes agreement relating to
her of her daughter’s right to occupy the property . The respondent’s voice in
respect of this application remains silent .
[22] Be that as it may for clarity the relevant provisions of Uniform rule 46A are
repeated:
“(1) This rule applies whenever an execution creditor seeks to execute
against the residential immovable property of a judgment debtor.
(2)
(a) A court considering an application under this rule must –
(i) …….; and
4 Bestbier and Another v Nedbank Limited [2024 ] ZACC 2 .
5 Supra at [76].
(ii) consider alternative means by the judgment debtor of
satisfying the judgment debt, other than execution
against the judgment debtor’s primary residence (own
emphasis) .
(b) …...
(c) The registrar shall not issue a writ of execution against the
residential immovable property of any judgment debtor unless
a court has ordered execution against such property.
(3) Every notice of application to declare residential immovable property
executable shall be –
(a) ...
(b) on notice to the judgment debtor and to any other party who
may be affected (own emphasis) by the sale in execution,
including the entities referred to in rule 46(5)(a): Provided
that the court may order service on any other party it
considers necessary.
(c) supported by affidavit which shall set out the reasons for the
application and the grounds on which it is based; and
(d) served by the sheriff on the judgment debtor personally:
Provided that the court may order service in any other
manner.
(6)
(a) A respondent (own emphasis ), upon service of an application
referred to in subrule (3), may –
(i) oppose the application; or
(ii) oppose the application and make submissions which
are relevant to the making of an appropriate order by
the court; or
(iii) without opposing the application, make submissions
which are relevant to the making of an appropriate
order by the court.
(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) order the furnishing by –
(i) a municipality of rates due to it by the judgment debtor;
or
(ii) a body corporate of levies due to it by the judgment
debtor.
(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) postpone the application on such terms as it may consider
appropriate.
(g) refuse the application if it has no merit;
(h) make an appropriate order as to costs, including a punitive
order against a party (own emphasis) who delays the
finalisation of an application under this rule; or
(i) make any other appropriate order.
(9)
(a) ...
(b) 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) ...
(ii) ...
(iii) ...
(iv) ...
(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 in 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 likelihood 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 .”
[23] Considering Ms Pearl Mathibela’s circumstances of occupancy and her
Constitutional right to adequate housing in terms of section 26 of the Constitution,
this Court again turns to paragraph 64 of the Bestbier matter, in which the C C
reminded litigants that :
“[64] When one has regard to the facts of Jaftha6 and Gundwan a7 and the
reference of the Court to section 26 of the Constitution, it must be accepted
that rule 46A aims to protect and entrench the right of access to adequate
housing. This Court in Jaftha has concluded that section 26(1) is not
triggered in every execution against immovable property. The Supreme
Court of Appeal in Saunderson8 endorsed this principle and further
expanded on the adequacy aspect of the right:
‘But Jaftha did not decide that the ownership of all residential property is
protected by section 26(1); nor could it have done so bearing in mind that
what constitutes ‘adequate housing’ is necessarily a fact -bound enquiry.
One need only postulate executing against a luxury home or a holiday
home to see that this must be so, for there it cannot be claimed that the
process of execution will implicate the right of access to adequate housing
at all. ’”
6 Jaftha v Schoeman, Van Rooyen v Stoltz [2004] ZACC 25;2005 (2) SA 140 (CC) ;2005 (1)
BCLR 78 (CC).
7 Gundwana v Steko Development CC [2011] ZACC 14, 2011 (3) SA 608 (CC); 2011 (8)
BCLR 792 (CC).
8 Standard Bank of South Africa v Saunderson [2005] ZASCA 131; (2006) 2 SA 264 (SCA);
2006 (9) BCLR 1022(SCA).
[24] Ms Pearl Mathibela on her own submissions is a legal practitioner who
owns another property in Groblersdal. She is therefore not an indigent litigant and
on the facts . This matter therefore does not concern the deprivation of adequate
housing f or the poor . Applying the facts of this case and the submissions made,
Ms Pearl Mathibela , other than referring to her rights enshrined in section 26 ,
failed to advance any reasons or provide any facts to this Court to substantiate
why her right to adequate housing would be infringed by the attachment and
execution relief. It was almost as if , by mere reference to the Court’s Constitutional
obligation to consider the provisions of section 26, the protect ion bec ame
established by her. This is not the case as considered by our Courts. Both the
respondent and Ms Pearl Mathibela who had received notice of the application
would have been made aware of their right in terms of section 26 as the founding
papers make extensive reference thereto.
[25] Ms P earl Mathibela may have made the property her home , as one does ,
but this does not translate into her ability not to have access to adequate housing
whether factually or financially. Factually she possesses access to another home ,
her own property in Groblersdal and she possesses the ability to afford adequate
housing elsewhere , if need be, as no other evidence to the contrary was
presented. The respondent who does not reside on the property too, will not be
deprived of housing. No other submissions or facts were presented to consider.
The respondent nor Ms Pearl Mathibela r equire the protection of section 26 of the
Constitution.
[26] During the hearing this Court required a more recent valuation of the
property to consider protecting the rights of the respondent. The matter stood
down for such purpose without objection. An updated sworn valuation was
obtained by CMV Valuations. Mr Koop De Vries Styger, an appointed appraiser
was provided. The properties forced sale value was determined at R 900 000.00
and its market value at R 1 100.000.00. Ms Pearl Mathibela handed up a copy of
the rates and taxes owning to the local municipality in th e sum of R 2 894.93. The
applicants did not object to the documents nor the veracity of its content. The
remaining concern was a proper calculation of the interest still outstanding which
has not adequately been tendered into evidence. However, this Court does accept
that such amount maybe substantial having regard to the failure to make payment.
It is for this reason that balancing both the rights of the applicant and the
respondent, a reserve price will be set and the execution of any order to be made
will be suspended for a specific period allowing for a proper calculation to be made
setting out the capital sum, less the payments made and the interest calculation
including recoverable costs as per Court order. The remaining dispute which Ms
Pearl Mathibela may have with the Pretor Group relating to their charges and
interest thereon, is not to be entertained in this matter nor a bar for the execution
of the order.
[27] Having regard to the above a reserve price translating into the forced sale
price at this stage is fair and reasonable , being R 900 000.00 .
[28] The applicant succeeds with its attachment and execution relief.
COSTS
[29] Costs are in a Court’s discretion. The applicant moves for attorney client
costs against the respondent . This Court accepts that the respondent having
received notice of the application and the set down date has elected not to
participate herself. This is evident from her own attorney’s supine inaction. It too is
abundantly clear that Ms Pearl Mathibela did not want to be cited as a party to this
matter as, if she wanted to, she would have. The consequences thereof, is to the
prejudice of the respondent and the applicant. Such is clear as , it is only the
applicant or the respondent who attracts a judgment, whose property is attached
and who attracts an adverse cost order. It is for this reason that the Court is not
inclined to mulch the respondent with a punitive cost order . These reasons must
be consider ed as weighty factor in this matter in respect of further delays at the
cost of both cited parties.
The following order:
1. The application for the condonation of the late filing of “ THE
RESPONDENT’S OPPOSING AFFIDAVIT ” duly commissioned on the 28
March 2023 is dismissed.
2. The immovable property of the respondent, known as:
UNIT 1[...] IN THE SECTIONAL TITLE SCHEME SILVER STREAM
SCHEME NUMBER 854/2004, HALFWAY GARDENS
EXTENSION 23, 1270
REGISTRATION DIVISION J.R.
GAUTENG PROVINCE
IN EXTENT OF112 (ONE HUNDRED AND TWELVE) SQUARE
METRES
HELD BY DEED OF TRANSFER NUMBER ST15127/2009
[“the property”] is declared specifically executable;
3. The Registrar is authorised to issue a writ of execution against the
property in terms of Rule 46(1)(a)(ii) read with Rule 46A(2)(c ).
4. The property of the respondent shall be sold by the Sheriff subject to the
reserve price in the amount of R 900 000.00 (nine hundred thousand
rand).
5. The execution of the property referred to in prayers 3 and 4 is suspended
for a period of 5 (five) months from date of this order so that a proper
debatement of the account in favour of the applicant can be done
reflecting only the outstandin g capital , the payments made, the interest
thereon and recoverable costs as granted on the Court order of the 22
July 2016 and on condition that the full payment of the reconciled
amount is made within such period of 5 (five) months .
6. The respondent to pay the costs of the application on a part and party
scale taxed at scale B .
L.A. RETIEF
Judge of the High Court
Gauteng Division
Appearances :
For the Applicant : Adv Rousseau van Schalkwyk
Cell: 071 549 4013
Email: rvs@rsabar.com
Instructed by attorneys: Kirkcaldy Pereira Inc
Tel: 012 991 6180
Email: lee@kpinc.co.za
Ref: LVDL/MAT 2653
For the Respondent No appearance
Affected person: Pearl Mathibela
Date of hearing 28 January 2025
Date of Judgment 31 January 2025