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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 18516 /2021
In the matter between:
MAS -OODAH SHABUDIN Applicant
and
NEDBANK LIMITED First Respondent
WARREN BEYER Second Respondent
REGISTRAR OF DEEDS, CAPE TOWN Third Respondent
SHERIFF OF THE HIGH COURT, GOODWOOD Fourth Respondent
Coram: Justice J Cloete
Heard: 30 January 2025
Delivered electronically: 18 February 2025
JUDGMENT
CLOETE J :
[1] This is an application in which the applicant seeks the following relief:
(a) suspending the order granted under the above case number on
7 February 2023 (“the summary judgment order”); (b) cancelling or setting
aside the warrant of execution issued by the registrar pursuant to the
summary judgment order; (c) declaring the subsequent sale in execution to
the second respondent on 12 March 2024 of the immovable property
registered in the applicant’s name and situated at […] K[…] Road, Thornton
(“the immovab le property”) null and void; and (d) costs in the event of
opposition. The first respondent (“Nedbank”) opposes the relief sought. The
remaining respondents have not participated in these proceedings.
[2] The matter has a long history which has been set out f ully in the papers. For
present purposes it is only necessary to deal with those facts directly relevant
to determination of the issues before me. To this it should be added that at a
stage the applicant had legal representation, but her attorney of record
withdrew prior to the hearing. She was assisted by her brother, and I stood
the matter down for an hour to enable her to prepare, given that she had not
filed heads of argument. She informed me upon resumption that she was
ready to address the court, and the hearing thus proceeded.
[3] The summary judgment order has not been appealed and it accordingly
remains of full force and effect. In terms thereof judgment was granted against
the applicant in favour of Nedbank (which relied on its security, being a
mortg age bond registered over the immovable property pursuant to the
conclusion of a written loan agreement between itself and the applicant, and
subsequent breach thereof by the applicant) for: (a) payment of
R2 572 065.77, interest and attorney and client cos ts; and (b) declaring the
immovable property specially executable subject to a reserve price of
R1.7 million. The order also records that:
‘The Respondent is notified that in terms of s 129(3) of the National
Credit Act 34 of 2005 the Respondent may, at an y time prior to the
transfer after sale in execution of the Property (and before cancellation
of the agreement) reinstate the credit agreement by paying to the
Applicant all amounts that are overdue together with the Applicant’s
permitted default charges a nd reasonable costs of enforcing the
agreement up to the time of reinstatement, which amounts, charges
and costs the Applicant must on enquiry from the Respondent furnish
to the Respondent.’
[4] The immovable property was sold in execution on 12 March 2024 to the
second respondent for R1 990 000. Transfer has not yet been registered in
the name of the second respondent as a result of the present application.
During argument the applicant informed me that her oral submi ssions in
support of the relief sought were in accordance with those in her founding
affidavit, and I thus summarise them as follows.
[5] According to the applicant, after summary judgment was granted, she made
‘frantic efforts’ to resolve the matter since Ne dbank had placed the immovable
property on auction. At the time she requested Nedbank to restructure the
loan agreement ‘as the arrears were growing and I would find it difficult to pay
the bank’. She was also trying to make payments to reduce the debt. He r
version is further that her negotiations with Nedbank culminated in an
agreement in August 2023 ‘wherein I made a proposal to pay an amount that
would cover more than 50% of the arrears at that time. The proposal was
accepted, though it had some outlandi sh demands attached to it’ by Nedbank.
In August 2023, she paid Nedbank R298 757.97; in October 2023, R38 000
and in November 2023, R37 000.
[6] The applicant also alleges that in January 2024, she advised Nedbank that
she would be able to make a lump sum payment at the end of March 2024 as
she was awaiting funds that her family were assisting her with. She was thus
surprised ‘when sometime in February 2024 I was advised that the property
would be put on auction again. I had thought that with the payments t hat I had
made to substantially reduce my arrears the First Respondent would be
reasonable. That was not the case’. She maintained that at the time Nedbank
‘was not budging by way of negotiations’. She then indicated to Nedbank that
she would be willing to participate in its assisted sale program but the
response received was ‘filled with outlandish demands for payment of 50% of
the arrears before the assisted sale could be considered. This, in all fairness,
defeats the very purpose of the process ’.
[7] Accord ing to the applicant, having realised that Nedbank was negotiating from
‘an unreasonable viewpoint’ , she then obtained her own purchaser who made
an offer to Nedbank to purchase the property for R2.4 million, which was
however rejected. The applicant annex ed the offer to purchase to her
founding affidavit. It is in fact a deed of sale dated 7 March 2024, reflecting
the applicant as seller and a Mr Waleed Bukhari as purchaser. The purchase
price is reflected as R1.8 million ‘excluding costs’ ; is subject to t he purchaser
obtaining a loan for the full amount of the purchase price within 14 days from
date of last signature or such other extended period as the parties might
agree in writing; contains a special condition that ‘client will sign A.O.D.’ ; and
is acco mpanied by a “pre-approval certificate ” issued by Master Fin Bond
Originators that mortgage pre -approval had been granted to the purchaser for
an amount not exceeding R3.5 million , but subject to the following terms and
conditions in bullet point form:
‘ • Banks criteria
• Satisfactory Bank Valuation
• Loan term 240 months
• Subject to clear credit record
• Satisfactory payment profile
• Affordability’
[8] The applicant’s complaint is that, notwithstanding the aforegoing, the sale in
execution proceeded. The groun ds she advances for suspension of the
summary judgment order are that: (a) the offer made by the prospective
purchaser of R2.4 million was reasonable in the circumstances and would not
result in her having a huge shortfall in the amount owing to Nedbank; ( b) the
latter’s attorney demanded guarantees from this ‘potential purchaser’ and was
informed these would be provided as soon as possible, but Nedbank
nonetheless went ahead with the sale in execution; (c) the property was sold
for R1.8 million in executio n, an amount substantially lower than the
applicant’s purchaser and ‘no doubt lower than what would have been
obtained through the assisted sale process ’; and (d) ‘Nedbank’s actions were
all in bad faith, causing the Applicant prejudice’.
[9] In Nedbank’s answering affidavit a very different picture emerged. Nedbank’s
deponent set out at some length all of the indulgences granted to the
applicant after she breached the loan agreement way back in March 2021 and
up until the granting of the summary judgment order. I do not deal with them
herein since they would all have been taken into account by the court prior to
granting that order. However what is relevant is that the applicant concluded
the loan agreement with Nedban k on 12 November 2019; the mortgage bond
was registered in favour of Nedbank over the immovable property on
6 December 2019; and the applicant fell into arrears in respect of her loan
account payments to Nedbank in approximately March 2021 (i.e. 15 months
after the bond was registered). Moreover, subsequent to the granting of the
summary judgment order, the applicant offered to pay R100 000 at the end of
March 2023 but would not commit to an arrangement beyond this ; the
promised payment of R100 000 was neve r received ; the applicant then
offered to pay R100 000 by the end of May /the first week of June 2023 , but
again no such payment was made. She also made no payments whatsoever
in May, June and July 2023. In July 2023, she indicated that she had signed a
mandate with Claremart to sell the immovable property , but n o offer to
purchase was received by Nedbank from either the applicant or Claremart
thereafter.
[10] Nedbank’s version is further that on 21 August 2023, the applicant indicated
that she was in a position to make a payment ‘substantially’ higher than
previously offered , but this n otwithstanding, she again failed to do so. A sale
in execution was scheduled for 29 August 2023. The applicant was informed
that, in order for the sale in execution to be cancelle d, she would be required
to make a lumpsum payment of 75% of the arrears with the remaining 25% to
be paid over 6 months together with the loan instalment. The applicant did not
accept this, but instead offered to pay 50% of the arrears together with certa in
payments for 3 months thereafter, while Claremart had a mandate to sell the
property. The applicant had emphasised that her offer was based on what she
‘could ensure the bank comfortably’. Nedbank accepted this arrangement (no
outlandish demands were at tached to this acceptance as alleged by the
applicant), and upon receipt of payment of 50% of the arrears, the sale in
execution scheduled for 29 August 2023 was cancelled. (It is undisputed that
on 6 July 2023 the applicant’s arrears under the written loa n agreement had
risen to R530 442.70 (a significant sum). The payment of R298 757.97 made
by the applicant during August 2023 (being roughly 50% of the arrears) then
resulted in cancellation of the sale in execution ).
[11] Nedbank also alleges that on 25 Augus t 2023 its attorney enquired whether
the applicant would be interested in a restructure of her loan account or
whether she still wished to sell the property. The applicant indicated that she
was open to a restructure and enquired how it would work. She was reminded
that she had been informed of the requirements for restructure on a previous
occasion, but was again informed thereof. She was also again provided with
documents for completion necessary to consider a restructure as well as the
NAS program brochu re (i.e. the Nedbank Assisted Sale program). No
response was received from her and she did not provide the requested
documents. In response to a follow up email from Nedbank’s attorney, the
applicant only provided proof of a payment and none of the require d
documents. On 31 October 2023, she made a further payment, but less than
what she herself had previously proposed and which Nedbank had accepted.
She made no payment in November 2023 as she alleged.
[12] Nedbank’s version is further that the reafter the applicant also persisted in her
failure to provide the documents required for a restructur ing of her account.
Accordingly, in December 2023, she was informed that she had breached the
arrangement and that a new date for a sale in execution would be obtain ed.
By this stage the arrears on the applicant’s home loan account had again
increased to R302 493.32. On 5 December 2023, the applicant requested
time ‘to remedy this’ by 8 December 2023. She confirmed that she would
‘certainly settle’ December’s instalme nt by 8 Decem ber 2023. No payment
was received. On 22 February 2024, the applicant requested the ‘arrears
settlement’ . She was informed that her arrears then stood at R397 451.95,
and she would be required to pay that amount plus legal costs by 12h00 on
8 March 2024 in order to cancel the sale in execution scheduled for 12 March
2024. On 5 March 2024, the applicant proposed to make payment of 50% of
the arrears for the second sale in execution to be cancelled, plus a
restructuring of the arrears ‘over a per iod’. Given the history of the matter,
Nedbank was not agreeable thereto.
[13] Thereafter, on 6 March 2024, Nedbank’s attorney received correspondence
from the applicant’s former attorney in which she (for the first time) clearly
indicated her willingness to enter the NAS program. However, on 8 March
2024, the offer to purchase the i mmovable property to which I have previously
referred, and which was annexed to the applicant’s founding affidavit, was
instead received, coupled with a request that Nedbank stay the sale in
execution. The offer to purchase was problematic for Nedbank. It was not
accompanied by any form of security or guarantee for the purchase price or
costs; the sale was subject to bond approval for the full amount of the
purchase price; and the “pre -approval” certificate provided did not constitute
bond approval either. In any event, the purchase price was not sufficient to
cover the applicant’s indebtedness to Nedbank and would leave a significant
shortfall.
[14] Despite all this, o n 11 March 2024 (i.e. the day before the second scheduled
sale in execution), the applicant was given yet another opportunity. In a letter
addressed to her attorney she was advised that, should she wish to proceed
with the NAS program, she would be required to pay 50% of the arrears plus
the monthly loan instalment for 3 months , and would also be re quired to sign
the NAS mandate. At this stage, the applicant had made no payment s on her
home loan account since October 2023 . The applicant’s only response was a
revised offer to purchase the property for R2.4 million . This offer to purchase
(again accept ed by the applicant) was made by the same Mr Bukhari, and
was in identical terms to the previous written offer (save for the handwritten
amendment to the purchase price), and accompanied by the same so -called
pre-approval certificate previously issued by M asterFin. Nedbank had the
same difficulties with this offer as before.
[15] The applicant (through her attorney) took issue with what she considered to
be Nedbank’s ‘unreasonable demand’ , and claimed that she had ‘no issues
with signing the ordinary NAS mandate’ , notwithstanding the undisputed fact
that she had never signed the mandate before, despite it being provided to
her on the first occasion as far back as August 2022. The sale in execution
thus proceeded on 12 March 2024 and the immovable property was
purchased by the second respondent for R1 990 000 (being an amount in
excess of the reserve price of R1.7 million , as well as the initial offer made by
Mr Bukhari of R1.8 million which the applicant herself had found to be
acceptable).
[16] In considering the respective versions of the applicant and Nedbank, there
can be little doubt that Nedbank’s version must be accepted over that of the
applicant’s, given that much of Nedbank's version is supported by
independent documentation and correspondence annexed to its answering
affidavit. It is thus against this factual background that I proceed to consider
whether the applicant is entitled to a suspension of the summary judgment
order, from which the consequential relief she seeks would follow.
[17] Uniform rule 45A provides that, in relation to orders of first instance (such as
the summary judgment order in the present matter), a court may, on
application, suspend the operation and execution of any order ‘for such period
as it may deem fit’. In Stoffberg NO and Anot her v Capital Harvest ,1 Binns -
Ward J comprehensively analysed our jurisprudence on this issue. The
following principles may be distilled from that judgment.
[18] First, to the extent that there is a “general principle”, it is that a court will be
inclined to s uspend the operation and/or execution of an order if real and
substantial injustice would otherwise result.2 Examples (not an exhaustive list)
are where the underlying causa of a judgment debt is disputed, or no longer
exists, or where an attempt is made to use the levying of execution for ulterior
motives.3 Second, rule 45A is not a self -standing source of the court’s
authority, but rather a restatement of its common law discretionary power,
which in turn is an instance of its authority to regulate its o wn process (in
terms of s 173 of the Constitution).4
[19] Third, the power to suspend, being a judicial one, must be exercised judicially.
It will thus be fact specific in order to determine ‘whether considerations of
real and substantial justice are sufficien tly engaged to warrant suspending the
execution of a judgment; and, if they are, on what terms any suspension [the
court] might be persuaded to allow will be granted’.5 A stay of execution
should not be granted upon a mere plea ad misericordiam (i.e. an appeal for
pity): ‘a stay of execution is not to be had on flimsy grounds, merely to
accommodate an alternative payment plan that the judgment debtor might be
able to off er… the cases make it clear that the remedy is not just for the
asking’.6
[20] Applying these principles to the specific facts of this matter, the applicant’s
complaint is essentially that, in refusing to allow her yet a further opportunity
to meet her (uncon tested) obligations in a manner “suitable” to her, Nedbank
is acting in bad faith and using the execution process for an ulterior motive. It
is difficult to discern, on the applicant’s own version, what that ulterior motive
1 [2021] ZAWCHC 37 (2 March 2021).
2 At para [17].
3 At para [25].
4 At para [26].
5 Also at para [26].
6 At para [28].
might be. It is however clear th at Nedbank has bent over backwards to
accommodate the applicant. It has given her numerous opportunities to
accept, and comply with, various alternatives available to her. It has even
accepted one of her own proposals which she then proceeded, without
explanation, to breach. Furthermore, the applicant has not played open cards
with this court. She attempted to portray a picture which was inaccurate and
skewed in her favour.
[21] In addition , the applicant effectively seeks a permanent stay of judgment and
execut ion which, if granted, would mean that Nedbank will potentially never
be able to recover payment of the sum owing to it. That sum is a substantial
amount. The applicant only purchased the immovable property towards the
end of 2019, and fell into arrears as early as March 2021. Nedbank has spent
the past almost 4 years attempting to call up its security for which the
applicant willingly provided her immovable property. In addition, even if one
were inclined to grant a temporary suspension of the summary judg ment
order (which I am not) , this court is in no position to determine suitable terms ,
particularly given the applicant’s repeated failure to abide by arrangements
reached including adhering to her own proposals. In reality, the applicant asks
for a stay o f execution upon a mere plea for pity or mercy. Stoffberg NO
makes it clear that a suspension should not be granted on this basis.
[22] I am alive to the fact that the immovable property is, as claimed by the
applicant, her primary residence, where she resides with her family, but that is
not a n issue relevant for purposes of determination of this matter vis-à-vis
Nedbank . As I explained to the applicant during argument, the second
respondent, once he has taken transfer of the immovable property, will be
oblige d to follow the procedural requirements of PIE7 in the event that the
applicant and her family members refuse to vacate once he becomes the
registered owner thereof . Finally, as far as costs are concerned, there is no
good reason why they should not follow the result , and that the applicant
should pay them on the scale agreed upon in the written loan agreement.
7 Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998.
[23] The following order is made:
The application is dismissed with costs on the attorney and client scale,
including the costs of counsel and all reserved costs orders.
___________ _______
J I CLOETE
For applicant : In person
For 1st respondent : Adv N Van Zyl
Instructed by : Herold Gie Attorneys (P A Le Roux)
No opposition or appearance for second to fourth respondents.