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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 010183 /2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE : 2/3/2025
SIGNATURE
In the matter between:
FIRST RAND BANK LIMITED Plaintiff
And
MEYER ENGELBRECHT First Defendant
(ID NO.: 8[...])
LORRAINE ENGELBRECHT Second Defendant
(ID NO.: 8[...])
TOLMAY J
INTRODUCTION
1. The plaintiff issued summons against the defendants after they defaulted on
the mortgage payment towards their home loan with the plaintiff . The JUDGMENT
defendants entered appearance to defend and filed their plea. which included
a special plea. The plaintiff filed a summary judgment application within the
15-day time period prescribed by Rule 32 of the Uniform Rules of Court . An
affidavit opposing summary judgment was filed by the defendants. The
plaintiff then filed an application in terms of Rule 46A, no response was
received from the defendants in relation to the Rule 46 A application.
2. The following issues to be determi ned by the Court:
a) The special plea raised by the defendants that the plaintiff failed to set out
the requirements for Rule 46 A in the particulars of claim.
b) Whether the alleged payment holiday the defendants insist was granted
to them constitutes a pactum de non petendo and whether that would be
a bar against plaintiff proceeding with the claim.
c) Whether the defendants ’ constitutional right to housing as envisaged by
s26 of the Constitution will be affected should the order be granted.
d) Whether there was compliance with the provisions of s 129 of the
National Credit A ct as the defendants allege that they did not receive the
s129 notice.
THE SPECIAL PLEA
3. The special plea is raised alleging that the plaintiff failed to comply with the
provisions of Rule 46A in that the plaintiff failed, in the particulars of claim, to
provide any evidence of the market value of the property, local authority
valuation as well as the other information usually contained in the affidavit
supporting the Rule 46A application. The simple question is whether the
averments required in a Rule 46A application should be incorporated in the
particulars of claim already.
4. The Full Court in ABSA Bank Ltd v Mokebe and Related Cases1 (Mokebe) ,
had to pronounce on the desirability of the practice of first granting a money
judgment for the outstanding balance under a mortgage loan and then
postponing the declaration of executability , held that the foreclosure
1 (2018 (6) SA 492 (GJ) .
application must be brought in conjunction with the monetary claim .
Previously , the execution process formed part of the administrative process
which was controlled by the judgment creditor with the assistance of the
Sheriff and the Registrar2. This led to abuse largely as financial institutions
could sell debtor’s residences for amounts far below the ir market level, a
process that was prejudicial to homeowners. This led to the i ntroduction of
Rule 46 A which contain s provisions to enable oversight of the courts when
exercising its discretion on whether an execution order should be granted and
whether a reserve price should be set for the sale of execution. In Mokebe , it
was said that the “executionary relief has become an integra l part of the
lender’s cause of action and is required to be set out when it makes its claim,
or at least, it forms part of the relief when it makes a claim3”. Mokebe
continues to say that “..the money judgment is an intrinsic part of the cause of
action and inextricably linked to the in rem claim for an order for execution,
the latter which is non -existent without the money judgment. The default of the
debtor and the money judgment are a precondition for the entitlement of the
mortgagee to foreclose4”.
5. It was argued on be half of the defendants that Mokebe provides support for
the argument that the particulars of claim should contain informati on required
by Rule 46A , if not , the summary judgment application should be dismissed.
6. I was also referred to the unreported judgment of ABSA BANK Limited v
Sawyer5 where Van Eeden AJ said that “a plaintiff is compelled pleading its
cause of action in a combined summons, both circumstances entitling it to a
cause of actio n to the monetary judgment and the circumstances entitling it to
an order of executability6”. This conclusion is based on what was said in
Mokebe in relation to the fact that the executionary relief form s an integral part
of the order of executability. The learned Acting Judge proceeded to conclude
2 Ibid at para 12.
3 Ibid.
4 Ibid at para 14.
5 Case no.: 2018/17056 Gauteng Local Division (Johannesburg) .
6 Ibid at para 14.
that Rule 46 A does however not exclude a plaintiff’s right to summary
judgment, nor that a further application in terms of Rule 46A is required.
7. Reference was also made to another unreported decision Munsami v
Standard Bank and Others7 where an application for the setting aside the
sale in execution of an immovable property. The basis for the application was
the alleged non -compliance of the bank with the provisions of Rule 46A prior
to the sale and transfer. I n that matter , the Rule 46A requirements and orders
formed part of the particulars of claim. The Court in that case inter alia
concluded that it was not necessary for the Bank to have launched a separate
Rule 46A application as was contended for by the applicant8. The Court
continued to say the following:
“There is precedent in this division to the effect that, as long as appropriate
steps are taken “by the lawyers drafting the pleadings in the matter effectively
to marry the summary judgment procedure with that of rule 46”, nothing in
principle prevents a party seeking and obtaining orders in terms of Rule 46A
in the course of a summary judgment application. As long as the relevant
allegations are made in the particulars of claim and verified on oath in the
summary judgment affidavit or in 36 -32 36 -32 another affidavit, there is no
need for a separate Rule 46A application .9”
8. It is important to note that the purpose of particulars of claim is to set out a
cause of action and to make out the averments which is necessary to sustain
a cause of action. The particulars of claim does that. The Rule 46A application
sets out the requirements to assist the court in exercising its discretion on
whether an execution should follow. The summary judgment and Rule 46A are
decided simultaneously as was held to be required in Mokebe . The defendant
chose not to file an opposing affidavit in the Rule 46A application and
therefore the Court should accept the content thereof. The special pleas must
be dismissed .
7 Case no.: 2018/47106 Gauteng Local Division (Johannesburg)
8 Ibid at para 15.
9 Ibid at para 16. See also Standard Bank of South Africa Ltd. V Lamont 2022 (3) SA 537(GJ) paras 3 -
10.
THE PACTUM DE NON PETENDO
9. The defendant s allege that a valid pactum de non petendo exists. The
defendant s rely for this on a payment holiday of 12 months allegedly granted
during the Covid 19 epidemic. No details are provided regarding this
agreement. What is evident from the papers is that the arrears as at date of
summons was the amount of R134 761.18. In terms of the founding affidavit
in support of the Rule 46A -application, the last payment on the account was
made on 29 August 2022 in the amount of R20 000.00. The a rrears in
increased to R186 981. 42. It is trite that sufficient details must be provided to
assist the court in determining whether a bona fide defence exist. This
defence is the e pitomy of bald, vague and sketchy and cannot be accepted by
the Court.
NON -COMPLIANCE WITH SECTION 129
10. It is further alleged that the plaintiff failed to comply with the provisions of
section 129 of the National Credit Act, 34 of 2005 (“the Act”) as the
defendants never received the section 129 notice and as such the Defendants
were unable to respond to, or act in terms of, such notice.
11. The defendants chose as their chosen address 3[...] G[...] S[...] Crescent,
Glen Erasmia, Extension The section 129 notice was dispatched to the
nominated address. It is trite that t here is no obligation on the plaintiff to
ensure actual receip t or service of the section 129 notice, what is needed is
that same be dispatched to the nominated address and be recei ved at the
correct Post Office and these requirements were met. The defendants
importantly fail to state what steps they would have taken had they received
the notice, what their financial position was at that stage and whether they
would have been eligible to exercise their rights in terms of the National Credit
Act.
12. The p laintiff duly complied with the provisions of section 129 of the Act as
dictated in Sebola and Another v Standard Bank of South Africa Ltd and
Another10 and further elaborated in Kubyana v Standard Bank of SA Ltd11.
THE RIGHT TO HOUSING
13. I agree with the argument on behalf of the plaintiff that s ection 26 of the
Constitution provides fo r the right to adequate housing, it could never have
been the intention of the Constitution that such right would include the right to
remain in occupation of a mortgage property where there is a breach.
CONCLUSION
14. The defendants did not raise a ny bona fide defence. The plaintiff met all the
requirements for a summary judgment and complies with Rule 46A . I am
satisfied that the proposed reserve price is fair and reasonable .
The following order is made:
1. Payment in the sum of R 2 840 266.90 (TWO MILLION EIGHT HUNRED AND
FOURTY THOUSAND TWO HUNDRED AND SIXTY -SIX RANDS AND
NINETY CENTS).
2. Payment of interest on the above amount at the rate of 8.5% ( EIGHT POINT
FIVE PERCENT) per annum calculated and capitalised monthly in advance
from 03/07/2022 to date of payment.
3. An order declaring the defendants ’ immovable property:
ERF 1[...] G[...] E[...] 1[...] TOWNSHIP
Registration Division: I.R
Province of Gauteng
Measuring 672 (SIX HUNDRED AND SEVENTY TWO) square meters
Held by Deed of Transfer No. T55179/2016
Subject to the condition herein contained and more especially subject to the
condition imposed in favour of Gleneagles Estate Home Owners Association
NPC Registration Number 2006/008247/08 (situate d at 3[...] G[...] S[...]
10 2012 (5) SA 142 (CC) .
11 2014 (3) SA 56 (CC).
Cresent, Glen Erasmia ext 14) mortgaged under Mortgage Bond No. B[...] to
be specifically executable for the said sum plus costs.
4. Authorising the Registrar to issue a warrant of execution for the attachment of
the Defendants’ immovable property.
5. Authorising the Sheriff of the Court to ex ecute the warrant of attachment.
6. A reserve price in the sum of R 2 658 001.00 is set.
7. Attorney and client costs as provided for in the mortgage bond.
R TOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For Applicant: Adv J Minnaar
For Respondent: Adv V C Viljoen
Date of hearing: 4 February 2025
Date of judgment: