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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA 1
Case Number: 058372/2022
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES NO
(3) REVISED: NO
DATE:
SIGNATURE: JANSE VAN NIEUWENHUIZEN
In the matter between:
THE BODY CORPORATE OF NONSA COURT
and
GAOLATLHE MOTHOAGAE
CITY OF JOHANNESBURG METROPOLITAN CITY
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
Introduction Applicant
First Respondent
Second Respondent
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[1] This is a n application in terms of Rule 46(1) and 46A of the Uniform Rules of
Court for an order declaring the first respondent’s immovable property specially
executable and authorising the Registrar to issue a warrant of execution in
respect of the property.
[2] The application is opposed by the first respondent, who appeared in person at
the hearing of the matter.
Background facts
[3] The first respondent is the registered owner of a unit in Nonsa Court ,
Johannesburg South , Gauteng. According to the records held in Deeds Office,
the first respondent purchased the property on 7 November 2013 at a purchase
consideration of R 800 000, 00. In the result, the first respondent has been the
owner of the property for just over eleven years.
[4] In view of the first respondent’s ownership of the unit, she is a member of the
applicant and is liable to make payment of levies. The first respondent ’s levy
payments fell into arrears during 2019 and on 14 March 2023 the applicant
obtained judgment against the first respondent in the amount of R 111 797, 59.
[5] The first respondent did not pay the judgment amount, and the applicant caused
a warrant of execution against movable s to be issued by the registrar. On 26
September 2023 the Sheriff executed the warrant and issued a nulla bona
return.
[6] The nulla bona return resulted in the present application being launched.
Opposition
[7] The first respondent explained in her answering affidavit that it had always been
her dream to own her own property. At the time of the purchase of the property,
the first respondent was employed at the University of the Witwatersrand
3
(“Wits”). The purchase consideration for the property was financed through a
mortgage bond from Nedbank and, in order to realise her dream, the first
respondent made extra bond payments monthly.
[8] In March 2018 Wits retrenched the first respondent and she utilised the
settlement amount to pay off the Nedbank bond and to continue paying the
monthly levies.
[9] In December 2018, the first respondent applied for and was accepted for a PhD
Fellowship Programme at the Wits School of Public Health. A few months into
the program and during July 2019, the first respondent fell ill and required
surgical intervention. Shortly thereafter , the first respondent was diagnosed
with Stage IV Endometriosis, a severe condition that required major surgery.
The surgery was booked for November 2019.
[10] The first respondent stated that she was, sadly, unfairly dismissed from the PhD
Fellowship Program in September 2019. Although the CCMA has ruled that the
first respondent’s dismissal was, both procedurally and substantively unfair she
could not be reinstated due to the nature of the contract she had signed which
is somehow unique to the Wits School for Public Health.
[11] The first respondent engaged with the University in an endeavour to find an
amicable solution. Her engagements have not borne any fruit to date, and she
has escalated the matter to the Council for Higher Education as well as the
Department of Higher Educat ion and Training.
[12] In the meantime the first respondent has been seeking alternative employment
without success. The first respondent attached proof of her job seeking efforts.
[13] The first respondent stated that she takes full responsibility for the payment of
the levies, but that her current financial situation makes it extremely difficult to
honour her financial commitments. The first respondent has made some
payments towards th e arrear levies, but the amounts she paid did not even
4
equal the monthly levy amount. The first respondent is convinced that her
financial position will change at some point in the f uture and requested that she
be given time to honour her financial obligations towards the applicant.
[14] Finally, the first respondent summarised her opposition to the application as
follows:
14.1 the property is the only property she owns, and it is her primary
residence;
14.2 she lives with her niece who is a first -year student in need of
accommodation;
14.3 she is presently in a period of financial difficulty due to her unfair
dismissal which dismissal is receiving the attention of the CHE and
DHET senior officials ;
14.4 she has on various occasions engaged the applicant and its attorneys to
explain her situation and her intention to settle the debt; and
14.5 she has been paying small amounts towards the debt.
Legislative framework
[15] Rule 46(1) of the Uniform Rules of court provides that a warrant for execution
against immovable property may, subject to rule 46A, only be issued if a
debtor’s movable property is insufficient to satisfy the debt and the immovable
property has been declar ed specially executable by the court or the registrar in
terms of Rule 31 (5).
[16] Rule 46A, in turn, provides for execution against residential immovable
property. In terms of rule 46A(2)(a)(ii), a court must consider alternative means
available to a judgment debtor to satisfy the debt, other than execution against
5
a debtor’s residence. In casu the first respondent on her own version does not
have alternative means to satisfy the debt.
[17] Furthermore and in terms of rule 46A(2)(b) a court shall not authorise execution
against a residential immovable property that is a primary residence, unless the
court, having considered all the relevant factors, considers that the execution
is warranted.
[18] The applicant is a juristic body created in terms of the provisions of the Sectional
Titles Management Act, 8 of 2011. The function of the applicant is to, inter alia,
collect levies payable by the owners of the units in the scheme. The levies
payable by all the owners is for their joint benefit in that, the buildings, garden
and other infrastructure in the scheme is properly maintained. Proper
maintenance in turn, ensures that the value of the properties is enhanced.
[19] Without proper maintenance the scheme will most likely fall in disrepair and will
significantly decrease the value of all the properties in the scheme. The
payment of levies by all the owners of the scheme is to their mutual benefit.
[20] It is against the aforesaid background, that the court must consider whether the
authorisation of execution against the property of the first respondent is
warranted.
[21] Firstly, I wish to state that the first respondent’s financial woes are not due to
any fault on her part. The first respondent has on all accounts worked hard to
achieve her dream of owning a property and, until her dismissal , has promptly
honoured all her financial obligations. In the circumstances, the position the first
respondent finds herself in is most unfortunate.
[22] The high levels of unemployment is a sad reality in our country. There are daily
applications in court to execute against residential property that is a primary
residence. More often than not a debtor’s sudden loss of employment is the
cause for the d ebt.
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[23] The law must, however, be applied equally to the rights of all the parties before
court. Should the court refuse to authorise the execution of the first
respondent’s property, the rights of the other owners in the scheme who is in a
position and does pay levies, will unfairly be infringed.
[24] On the conspectus of the evidence before court, I cannot find that authorisation
to execute against the first respondent’s property is unwarranted.
[25] Lastly, the first respondent relied on her constitutional right to adequate housing
as envisaged in section 26(1) of the Constitution of the Republic of South Africa,
Act 108 of 1996. The first respondent submitted that her aforesaid right will be
infringe d should the court authorise execution against her property.
[26] In this regard, Mr Louw, counsel for the applicant, referred to the matter of
Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264
(SCA), in which the court held that the right “obliges private parties not to
infringe unjustifiably with any person’s existing access to adequate housing ’’.
[27] The first respondent’s property is unencumbered and a sale in execution will in
all likelihood, having regard to the amount of the debt, result in a surplus to the
benefit of the first respondent. The fact that the law authorises the sale of the
first respondent’s property in execution negates the notion that the applicant is
“unjustifiably” infringing th e first respondent’s right to adequate housing by
applying for such an order.
[28] In authorising the execution of the first respondent’s property, the court must in
terms of rule 46A (9), consider whether a reserve price should be set.
[29] The market value of the property was estimated at R 1 225 000, 00 by a sworn
valuator, Mr Furness. Mr Furness estimated the forced sale value of the
property to be R 900 000, 00. The Municipal valuation of the property is R
979 000, 00. On 4 October 2023, the first respondent owed the second
respondent R 41 595, 00 in respect of rates and taxes, electricity, water
7
consumption and related charges. The outstanding levies in May 2024
amounted to R 255 776, 78. Once the amount owed in respect of municipal
taxes and the levies owed to the applicant is deducted from the forced sale
value of the property, I deem a reserve price of R 600 000, 00 t o be fair and
reasonable in the circumstances .
[30] The first respondent indicated during the hearing of the matter that her financial
circumstances may change in the foreseeable future. In the circumstances, the
applicant has agreed to a suspension of the execution order for a period of two
months.
Costs
[31] The applicant as the successful party is entitled to a cost order in its favour.
ORDER
The following order is granted:
1. The following immovable property:
SECTION NO. 20 AS SHOWN AND MORE FULLY DESCRIBED ON
SECTIONAL PLAN NO. SS170/2002, IN THE SCHEME KNOWN AS NONSA
COURT IN RESPECT OF THE LAND AND BUILDING OR BUILDINGS
SITUATED AT JOHANNESBURG NORTH, CITY OF JOHANNESBURG
METROPOLITAN MUNICICPALITY OF WHICH SECTION THE FLOOR
AREA, ACCORDING TO THE SAID SECTIO NAL PLAN, IS 114 (ONE
HUNDRED AND FOURTEEN) SQUARE METRES IN EXTENT; AND
AN UNDIVIDED SHARE IN THE COMMON PROPERTY IN THE SCHEME
APPORTIONED TO THE SAID SE CTION IN ACCORDANCE WITH THE
PARTICIPATION QUOTA AS ENDORSED ON THE SAID SECTION PLAN
8
HELD BY DEED OF TRANSFER NO. ST 15175/2014
is declared specially executable.
2. The registrar is authorised to issue a warrant of execution against the
immovable property.
3. The immovable property to be sold in a sale in execution with a reserve price
of R 600 000, 00.
4. The execution of this order is suspended for a period of two months from date
of this order.
5. The first respondent is ordered to pay the costs of the application.
DATE HEARD:
24 February 2025
DATE DELIVERED:
3 March 2025 N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
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APPEARANCES
For the Applicant : Advocate Louw
Instructed by: Beyers Incorporated Attorneys
The First Respondent : In person.