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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
Case Number: 24509/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE : 31/01/2025
SIGNATURE
FIRSTRAND BANK LIMITED Plaintiff
and
TEBOGO BATISTA GEORGE MOKONE Defendant
This judgment was prepared and authored by the Judge whose name is reflected
herein 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.
JUDGMENT
ELLIS AJ
1. On 11 March 2024, having heard argument in an opposed summary judgment
application and Rule 46A application , I made the following order:
1. Payment of the sum of R2 161 872.42 (TWO MILLION ONE HUNDRED AND
SIXTY -ONE THOUSAND EIGHT HUNDRED AND SEVENTY -TWO RANDS
AND FORTY -TWO CENTS );
2. Payment of interest on the above amount at the rate of 8.75% (EIGHT POINT
SEVEN FIVE) percent per annum calculated and capitalised monthly in
advance in terms of the mortgage bond, from the 20/02/2022 until date of
payment.
3. An order declaring the Defendant’s Immovable property;
ERF 1[...] B[...] EXTENSION 113 TOWNSHIP
Registration Division I.R
Province of GAUTENG
Measuring 357 (THREE HUNDRED AND FIFTY -SEVEN) Square Meters
Held by Deed of Transfer No. T32696/2014
(Situated at UNIT 1[...] V[...] C[...] , 1[...] E[...] ROAD, BARTLETT EXTENSION
113) mortgaged under Mortgage Bond No. B[...] to be specially executable for
the said sum plus costs.
4. The Registrar is authorised to issue a Warrant of Execution for the attachment
of the Defendant’s Immovable property.
5. The Sheriff of the above Honourable Court is authorised to execute the
Warrant of Attachment.
6. The immovable property to be sold at auction at a set reserved price of
R1 725 578.10.
7. Costs on the scale as between party and party.
8. The execution of this order is suspended for a period of 3 (three) months from
the date of this order.
9. The Defendant’s attention is drawn to the provisions of section 129(3) and (4)
of the National Credit Act, 34 of 2005: In terms of this section, Defendant is
entitled to reinstate the agreement by paying to the credit provider all overdue
amounts ( this is the rear amount on the instalments and not the full balance
outstanding), together with the credit provider’s prescribed default
administration charges and reasonable costs of enforcing the agreement up to
the time the default was remedied. Such payment is to be made before any
sale in execution of the subject property to revive the credit agreement.
2. The reasons for my aforesaid order follow hereinbelow.
REASONS:
3. Plaintiff’s cause of action is premised on a loan agreement and mortgage bond
concluded between the parties in 2014. As at date of summons, the arrears on the
bond account were an amount of R154 057.86 representing 6.75 months.
4. Defendant does not dispute the conclusion of the loan agreement, registration of
the mortgage bond , the terms of both the agreement and the mortgage bond as
well as the arrears on the bond account .
5. It is trite that a defendant in a summary judgment application should advance his
or her defence with sufficient degree of clarity in order to enable the court to
ascertain whether he or she has deposed to a defence which, if proved at trial,
would constitute a good defence to the action1 and with reference to the plea that
was delivered.2
6. In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture ,3 the
Supreme Court of Appeal discussed summary judgment proceedings and held as
follows:
“[31] … the summary judgment procedure was not intended to ‘shut (a
defendant) out from defending’, unless it was very clear indeed that he had
no case in the action. It was intended to prevent sham defences from
defeating the rights of parties by delay, and at the same time causing great
loss to plaintiffs who were endeavouring to enforce their rights.
[32] The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable issue or a
sustainable defence of her/his day in court. After almost a century of
successful application in our courts, summary judgment proceedings can
hardly continue to be described as extraordinary. Our courts, both of first
instance and at appellate level, have during that time rightly been trusted to
ensure that a defendant with a triable issue is not shut out. In the Maharaj
case at 425G -426E, Corbett JA, was keen to ensure that first, an
examination of whether there has been sufficient disclosure by a defendant
of the nature and grounds of his defence and the facts upon which it is
founded. The second consideration is that the defence so disclosed must
be both bona fide and good in law. A court which is satisfied that this
threshold has been crossed is then bound to refuse summary judgment.
Corbett JA also warned against requiring of a defendant the precision
apposite to pleadings. However, the learner judge was equally astute to
ensure that recalcitrant debtors pay what is due to a creditor.
[33] Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and/or ‘drastic’ for a defendant who
has no defence. Perhaps the time has come to discord these labels and to
concentrate rather on the proper application of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case at 425G -
426E .”4
6. Defendant in his plea and a ffidavits filed in opposition to the summary judgment
application and Rule 46A application, essentially raised the following defences ,
namely:
6.1 that Defendant and his dependants’ right to housing in terms of section 26
of the Constitution will be infringed, as the mortgage property is their
primary residence;
6.2 that Plaintiff failed to comply with the provisions of section 129 of the
National Credit Act 34 of 2005 (“ NCA ”) as Defendant never received the
section 129 notice and as such Defendant was unable to respond to or act
in terms of such notice;
6.3 that there are alternative and satisfactory remedies available, other than
execution and/or declaring the property specially executive , to recover the
monies owing.
7. The defences raised by Defendant must therefore be analysed in order to
determine whether they are bona fide and good in law.
First Defence: Section 26 of the Constitution
8. It is trite that the Constitution of South Africa provides for justifiable socio -
economic rights and this includes the right to have access to adequate housing
which is enshrined in section 26 of the Contribution.
9. In Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others ,5 the
Constitutional Court stated that s ection 26 of the Constitution must be seen as
making a decisive break from the past. I t emphasises the importance of adequate
housing and in particular the security of tenure in our new constitutional
democracy. The indignit y suffered as a result of evictions from homes, forced
removals and relocation to land often wholly inadequate for housing needs has to
be replaced with a system in which the state must strive to provide access to
adequate housing for all and, where that exist s, refrain from permitting people to
be removed unless it can be justified .6
10. The construction and the order in Jaftha recognised that the sale in execution of a
person’s home limit the right to housing, and such limitation must be justifiable in
terms of section 36 of the Constitution. Thus, judicial oversight was an essential
element of the application for the sale of execution of a residential home .
11. However, the Constitutional Court in Gundwana v Steko Development CC and
Others ,7 clarified that the Jaftha decision applies not only in ex ceptional cases but
also in typical mortgage foreclosure cases, i.e. the matter at hand.
12. Rule 46A of the Uniform Rules of Court was introduced to impose procedural rules
to give effect to the right enshri ned in section 26 of the Constitution and must be
interpreted purposively against that backdrop.
13. The aim of Rule 46A is to assist the court in considering whether the section 26
rights of a judgment debtor would be violated if his/her house is sold in execution
and th erefore requires judicial oversight and consideration by a court of various
factors to determine whether there is good cause to order execution against the
immovable property concerned. The factors include whether the immovable
property which the execution creditor intends to execute against is the primary
residence of the judgment deb tor and whether there are alternative means by
which the judgment can satisfy the debt other than execution against the judgment
debtor’s primary residence.
14. In casu , Defendant merely raised his section 26 rights without indicating how his
constitutional right to adequate housing might be impacted . At no stage during the
hearing of the matter did Defendant, who appeared in person, suggested that he
and his family will as result of indigence be left vulnerable to homeless ness if the
property in question be sold in execution . On the contrary, Defendant himself
valued the property in the amount of R2 300 000.00 and submitted during the
hearing hereof that the full outstanding amount should be set as the reserved
price at the sale of execution , without proffering any other means by which
Defendant’s indebtedness could be satisfied. Defendant suggested , as set out in
his papers , that he be allowed to continue to pay a monthly amount of R2 000.00
(which was increased to R4 000.00) , towards his instalment of nearly R30 000.00
a month, until such time that he gets a job or recover s financially , losing count of
the fact that his indebtedness towards Plaintiff continues to escalate .
15. In my view , there is no substance in Defendant’s reliance on section 26 of the
Constitution in opposing the summary judgment application or the Rule 46A
application . It appears from the facts and the submissions made that it was raised
purely as a dilatory defence, which is not good in law.
Second Defence: Defendant did not receive the section 129 notice:
16. In Sebola and Another v Standard Bank of South Africa Ltd and Another ,8
Cameron J, writing for the majority, held the following in respect of the proper
meaning of section 129 of the NCA, namely:
‘[86]…I conclude that the obligation section 130(1)(a) imposes on a credit
provider to “deliver” a notice to the consumer is ordinarily satisfied by proof
that the credit provider sent the notice by registered mail to the address
stipulated by the consumer in the credit agreement, and that the notice was
delivered to the post office of the intended recipient for collection there.
[87] To sum up. The requirement that a credit provider provide notice in
terms of section 129(1)(a) to the consumer must be understood in
conjunction with section 130, which requires delivery of the notice. The
statute, though giving no clear meaning to “deliver”, requires that the credit
provider seeking to enforce a credit agreement aver and prove that the
notice was delivered to the consumer. Where the credit provider posts the
notice, proof of registered despatch to the address of the consumer,
together with proof that the notice reached the appropriate post office for
delivery to the consumer, will in the absence of contrary indication
constitute sufficient proof of delivery. If in contested proceedings the
consumer avers that the notice did not reach her, the court must establish
the truth of the claim. If it found that the credit provider has not complied
with section 129(1), it must in terms of section 130(4)(b) adjourn the matter
and set out the steps the credit provider must take before the matter m ay
be resumed .’9
17. Although the aforesaid conclusions reached in the Sebola -matter , quite clearly
describe the interplay between the provisions of sections 129 and 130 of the NCA,
culminating in the finding that section 129(1)(a) must be interpreted as requiring
the credit provider to prove that the notice was indeed provided to the consumer,
and if posted, proof of registered despatch to the address of the consumer,
together with proof that the notice reached the appropriate post office for delivery
to the consumer, the broad statement made by Cameron J following the findings
(the underlined portion in the quotation above), required clarification.
18. In Kabyana v Standard Bank of South Africa Ltd ,10 the Constitutional Court
clarified the broad statement in the Sebola -matter, more particularly in relation to
the misinterpretation of “contrary indication”, which was understood to mean that a
consumer may simply aver that he or she did not receive the notice , in order to
invoke the provisions of section 130(4)(b) . To this end, Mhlantla AJ, referred to the
statement made in Sebola , namely that “ [T]he statute does not demand that the
credit provider prove that the notice has actually come to the attention of the
consumer, since tha t would ordinarily be impossible ”11, before clarifying the
misreading of “contrary indication” in the following terms:
‘[52]… The “contrary indication” requirement applies to two inferences that a
court may make: the inference that the notification from the Post Office
(indicating that a registered item is available for collection) reached the
consumer and the inference that a reasonable consumer would have
responded to that notification and retrieved the notice. The first inference is
based on the reasonable assumption that when a credit provider has
dispatched a notice by means of registered post, has specified the correct
addre ss for the consumer and has insured that the notice is delivered to the
correct branch of the Post Office, the notification calling on the consumer to
collect a registered item will be delivered to her address. A contrary
indication would be a factor showing that, in the circumstances and despite
the credit provider’s efforts, the notification did not reach the consumer’s
designated address. The second inference is based on the assumption that
a consumer acting reasonably would, having received the notifica tion from
the Post Office to retrieve a registered item, proceed to collect the notice. In
these circumstances a contrary indication would be a factor showing that
the consumer acted reasonably in failing to collect or attend to the notice,
despite the delivery of the notification to her address.
[53] Once a credit provider has produced the track and trace report
indicating that the section 129 notice was sent to the correct branch of the
Post Office and has shown that a notification was sent to the consumer by
the Post Office, that credit provider will generally have shown that it has
discharged its obligations under the Act to effect delivery. The credit
provider is at that stage entitled to aver that it has done what is necessary
to ensure that the notice reached the consumer. It then falls to th e
consumer to explain why it is not reasonable to expect the notice to have
reached her attention if she wishes to escape the consequences of that
notice. And it makes sense for the consumer to bear this burden of
rebutting the inference of delivery, for the information regarding the
reasonableness of her conduct generally lies solely within her knowledge.
In the absence of such an explanation the credit provider’s averment will
stand. Put differently, even if there is evidence indicating that the section
129 notice did not reach the consumer’s attention, that will not amount to
an indication disproving delivery if the reason for non -receipt is the
consumer’s unreasonable behaviour.’12
19. Mhlantla AJ concluded that proof of delivery of a section 129 notice (when delivery
occurs through the postal service), entails proof that:
(a) the section 129 notice was sent via registered mail and was sent to the correct
branch of the Post Office, in accordance with the postal address nominated by
the consumer. This may be deduced from a track and trace report and the
terms of the relevant credit agreement;
(b) the Post Office issued a notification to the consumer that a registered item was
available for collection;
(c) the Post Office’s notification reached the consumer. This may be inferred from
the fact that the Post Office sent the notification to the consumer’s correct
postal address, which inference may be rebutted by an indication to the
contrary; and
(d) a reasonable consumer would have collected the section 129 notice and
engaged with its contents. This may be inferred if the credit provider has
proven (a) -(c), which inference m ay, again, be rebutted by a contrary
indication: an example of why, in the circumstances, the notice would not have
come to the attention of a reasonable consumer.13
20. In casu , Plaintiff indeed sent the section 129 notice per registered post to
Defendant’s nominated postal address as depicted on the credit agreement. The
nominated postal address is situated in Boksburg , and the track and trace report
confirmed that it was duly dispatched and received at the correct Post Office.
Moreover, the track and trace report confirm that a first and second notification
were sent to Defendant, without any collection. In this regard, Plaintiff in my view
satisfied the requirements of subparagraphs (a) -(c) referred to in the immediately
preceding paragraph. Defendant did not dispute the aforesaid, but instead argued
that Plaintiff failed to prove that De fendant collected the notice, which is not a
rebuttal to the requirements set out above. Notably, Defendant’s submission in
this regard is premised on the exact misreading of “contrary indication” in the
Kubyana -matter, which the Constitutional Court rejected out of hand. There is
therefore no merit in Defendant’s second defence.
Third defence: alternative and satisfactory remedies available, other than
execution
21. The facts adduced by Defendant indicate that Plaintiff has since 2021 actively
assisted Defendant through means of financial relief assistance, offering a holiday
period on his loan account and the Quick Sell option, and even pended legal
action in August 2022 upon receipt of a distressed application from Defendant.
None of these measure managed to ensure that the arrears are settled and the
account reinstated.
22. The summary judgment and Rule 46A applications were therefore brought after
numerous attempts by Plaintiff to obtain payment from Defendant has failed, whilst
Defendant did not dispute the debt. I therefore conclude that execution is the only
remedy available in the circumstances of this matter, in view of the fact that all
other remedies yielded no satisfactory outcome.
23. Notwithstanding the fact that I could not uphold any of the defences raised by
Defendant, I deemed it appropriate to set a reserve price in this matter. To this
end I allow ed an updated valuation report of the property in terms of Rule 46A(8) ,
which was submitted by Plaintiff in a supplementary affidavit. The updated
valuation report indicat ed that the market value of the property is R2 250 000.00
and that a forced sale of the property will yield an amount of R1 800 000.00.
24. During the hearing of this matter counsel for Plaintiff graciously suggested that the
valuation of the property put forward by Defendant , namely R2 300 000.00 should
be considered in determining a reserve price , taking into account that Defendant
has continued to pay amounts into his account, albeit insubstantial to eradicate
the arrears to the account. I have already referred to this issue upfront and confirm
that the reserve price was determined in accordance with the amounts proffered
by Defendant .
25. In order to further afford Defendant every opportunity to remedy the situation, I
suspended execution of the order for three (3) months and directed Defendant’s
attention to the provisions of section 129(3) and (4) of the NCA , wherefore I issued
the order in paragraph 1 above.
ELLIS AJ
ACTING JUDGE OF THE
GAUTENG DIVISION OF THE HIGH
COURT OF SOUTH AFRICA
APPEARANCES:
For Plaintiff : Adv J Minnaar
Instructed by: Hammond Pole Attorneys
For Defendant: In person
Date of hearing: 11 March 2024
Date Delivered: 31 January 2025
1 Breitenbach v Fiat SA (Edms) Bpk 1972 (2) SA 226 (T) at 228.
2 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) at [22], [24] and
[26]-[27].
3 2009 (5) SA 1 (SCA).
4 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at [31] -
[33].
5 2005 (2) SA 140 (CC).
6 Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) at [29].
7 2011 (3) SA 608 (CC).
8 2012 (5) SA 142 (CC).
9 Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) at [86] -
[87]. My own emphasis added.
10 2014 (3) SA 56 (CC).
11 Sebola and Another v Standard Bank of South Africa Ltd and Another supra at [61].
12 Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) at [52] -[53].
13 Kubyana v Standard Bank of South Africa Ltd supra at [54].