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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2793/2022
1. REPORTABLE: YES/ NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES / NO
DATE: 06/05/2025
SIGNATURE OF JUDGE:
In the matter between:
MANUEL HEUNES APPLICANT
and
ABSA HOME LOANS GUARANTEE COMPANY (RF)
PROPRIETARY LIMITED FIRST RESPONDENT
ABSA BANK LIMITED SECOND RESPONDENT
SHERIFF OF THE HIGH COURT
PRETORIA THIRD RESPONDENT
REGISTRAR OF DEEDS,
PRETORIA FOURTH RESPONDENT
JUDGMENT
HERSHENSOHN AJ
INTRODUCTION
[1] The current matter before me has its genesis as an urgent application which
was set down on 5 November 2024. In this regard the matter was heard by my sister,
the honourable Justice Mncube AJ on 5 November 2024 and was accordingly struck
from the roll for a lack of urgency with the appli cant to pay the costs on a party and
party scale.
[2] The matter now comes before me as an opposed motion and was set down to
be heard during the week of 22 April 2025.
[3] The applicant, at this stage represented himself and the respondents were
represented by Advocate Kollapen.
[4] In the application before me the applicant seeks the following relief:
(a) pending the outcome of the application that the execution of the
judgment granted against the applicant on 4 October 2023 be
suspended in terms of Rule 45A of the Uniform Rules of Court;
(b) that the respondents are prevented from selling or transferring the units
comprised of sections 1 and 2, together with the undivided shares of
the common property in Waterkloof Park (“the properties”) to any
executioner purchaser or their successors in title pending the final
determination of Part B of the application;
(c) that the second respondent be directed to deliver to the applicant within
five (5) days of such other period determined by the court certain
information and relating more particularly to the interest rate change
notices on t he respective account number 8[...] for several dates set
out from as far back as 2018 and up until the end of 2024;
(d) a statement reflecting the calculation of the amounts in arrears in
respect of the loan agreement since commencement of the loan
agreement and to date of the statement;
(e) a statement reflecting the current outstanding balance of the amount
due in terms of the judgment, together with the calculation of said
outstanding balance;
(f) an order declaring that the applicant is entitled to remedy his default
under the relevant civil agreement, being the home loan agreement, by
satisfying the requirements of section 129(3) of the National Credit
Act,34 of 2005 (“the National Credit Act”) at any stage up to the
realisation of the proceeds of a sale in execution pursuant to the
judgment.
[5] That leave be granted to supplement his application in any way that may be
necessary.
CHRONOLOGY
[6] Prior to dealing with the merits of this application it is possibly apposite to set
out the following key events:
(a) on 27 May 2022 Absa issued summons against the applicant for a
default of his loan agreements and more particularly his home loan;
(b) on 4 October 2023 summary judgment was granted by consent and
such summary judgment was suspended for a period of t hree months
on provisio that the applicant pay the current monthly instalment in the
amount of R73,295.24 together with an additional amount of
R40,000.00 towards the current arrears in the home loan account
effective from 10 October 2023 until the arrears were settled in full,
payment to be made directly into the applicant’s home loan account
with account number 8[...]. The suspension of the summary judgment
order was further subject to the condition that:
(i) once the arrears of the home loan account had been settled in
full then the applicant was to pay his normal monthly instalment
on or before the due date;
(ii) in the event that the applicant failed to make payment as
directed (then both the payment of the monthly instalment as
well as the contribution to wards the current arrears) then the
respondents would be entitled to proceed with execution of the
order;
(iii) the applicant was to pay the respondents’ costs in respect of the
application on a scale as between attorney and client, such
costs to be debited to his own account and with the
respondents;
(c) on 10 October 2023 and despite the clear wording of the order setting
out the terms upon which the summary judgment order was
suspended, the applicant failed to make payment of the amounts
agreed to. This appeared during argument to be common cause ;
(d) on 29 November 2023 the applicant paid the sum of R1,440,000.00
(this amount seems to differ slightly in the affidavits, in some cases
recorded as being R1,446,000.00 or R1,448,000.00) believing it to
have settled the outstanding arrears;
(e) on 6 August 2024 the respondents notified the applicant of the fact that
at that stage he was in arrears to the tune of some R511,735.82 and
that they intended to proceed with the sale in execution;
(f) on 10 September 2024 the respondents e -mailed the applic ant and
notified him of the sale scheduled for 31 October 2024;
(g) on 7 October 2024 the applicant’s attorneys requests a sale
postponement to explore the Help You Sell option for the immovable
property;
(h) on 29 October 2024 the applicant filed the current ur gent application to
suspend the sale;
(i) on 31 October 2024 the sale in execution proceeded and the property
was sold to a third party for the sum of R1,1 million which sale is
subject to the ratification of this court.
THE FACTS
[7] It is common cause that su bsequent to the launching of the application and
subsequent to its striking from the urgent roll, that sale in execution took place and
the property was sold for the sum of R1,1 million as I have alluded to above. At this
stage the sale is the subject of r atification by the court and, transfer has not taken
place.
[8] It is also common cause that as matters currently stand, the summary
judgment order as was granted by agreement and stands , and has of yet not been
set aside. In my view this is an important aspect, as when one considers certain
portions of the relief and more particularly the relief sought in paragraph 4 thereof,
this relates to issues which predate the summary judgment order, an order which has
already been granted by this court and which order stands until such time as it is set
aside.
[9] It is also common cause between the parties that to date the applicant has not
launched a rescission application seeking to set aside the summary judgment order
which was granted by agreement and further the applicant conceded that the current
application before me was not an attempt to rescind the summary judgment order.
[10] From the above it appears that the only relief remaining in the notice of motion
of any substance (if one were to assume that the relief sought in paragraphs 2 and 3
would concomitantly follow if the applicant were successful in the relief sought in
paragraph 5) is the relief set out in paragraph 5 and more particularly that an order is
sought declaring that the applicant is entitled to remedy his default under the
relevant credit agreements being the home loan agreement by satisfying the
requirements of section 129(3) of the National Credit Act at any stage up until
realisation of the proceeds of a sale in execution and pursuant to the summary
judgment.
[11] In this regard it appears that this is the crux of the matter before me. As
currently worded paragraph 5 of the notice of motion as it stands and insofar as it
concerns a creditor’s right appear trite insofar as a creditor is entitled, within the
ambit of section 129(3) of the National Credit Act, to re medy his default and to seek
reinstatement of the credit agreement upon the grounds and the terms as set out in
the said section of Act. This relief is axiomatic if one considers the provisions of the
Act.
[12] However, I am alive to the fact that Mr Heun es is a layperson who drafted this
application on his own and who similarly appeared in person and on his own may not
legally minded . From what can be gleaned from the heads of argument and from his
argument in court, is that in actual fact the relief ought to have been styled slightly
differently and more particularly that, by virtue of his payment of the sum of
R1,440,000.00 made on 29 November 2023 he had paid the arrears and was as
such entitled to reinstatement of the credit agreement.
[13] The abovementioned find credence in the founding affidavit from paragraph
12 to 14 of the founding affidavit. The applicant goes further in the founding affidavit
to contend that it is important to note that the respondents record very clearly that up
until the applicant took advice (ostensibly during the course of October 2024) he was
not familiar with the concept of reinstatement of the agreements. He also conceded
that he was advised to establish how much he would need to pay to reinstate the
agreement s hould his payment of R1,440,000.00 not have done so.
[14] In this regard the founding affidavit records particularly as follows:
“16. Accordingly, on 16 October 2024 I sent an email to the first and
second respondents’ attorneys of record, Haasbroek & Boezaar t
(“HB”) wherein I requested a comprehensive breakdown of the
arrears of the home loan agreement from time to time. I did not
tell them that I needed the breakdown to establish whether I had
at any stage reinstated the home loan agreement.
17. In the even t that I had not reinstated the said agreement, I also
requested the current balance of the arrears together with the
total of taxed costs and default charges to enable me to consider
reinstatement of the home loan agreement. I attach a copy of the
said em ail as annexure “MH3” hereto .”
[15] As I have already stated above the right of a creditor in terms of section
129(3) of the National Credit Act is axiomatic. However the question before me, as I
understand the argument of the applicant, is whether the payment of the sum of
R1,440,000.00 was in fact sufficient to reinstate the agreement.
[16] In this regard this requires a careful analysis of the provisions of section
129(3) of the National Credit Act. Section 129(3) of the National Credit Act provides
as follows:
“(3) Subject to subsection (4) a consumer may –
(a) at any time before the credit provider has cancelled the
agreement re -dash instate a credit agreement that is in
default by paying to the credit provider all amounts that are
overdue, together w ith the credit provider is permitted default
charges and reasonable costs of enforcing the agreement up
to the time of re -dash instatement; and
(b) After complying with paragraph (a), may resume possession
of any property that had been repossessed by the credit
provider pursuant to an attachment order.
(4) A consumer may not re -instate a credit agreement after –
(a) the sale of any property pursuant to –
(i) an attachment order; or
(ii) surrender of property in terms of section 127;
(b) the execution of any other court order enforcing that
agreement; or
(c) the termination thereof in accordance with section 123 .”
[17] Secondly, and as I was referred to in the heads of argument provided by the
applicant and ostensibly upon which reliance is made was reference to a judgment in
the Constitutional Court and more particular Nkata v Firstrand Bank Ltd and
others (Socio -Economic Rights Institute of South Africa as amicus curiae)
2016 (6) BCLR 794 (CC). In this matter which is discussed by the Constitutional
Court in much detail the applicant borrowed money from Firstrand Bank to finance
the purchase of a residence. The home loan was a credit agre ement in terms of the
National Credit Act and the applicant later fell into arrears on the repayments. The
bank attempted to give notice to the applicant in terms of section 129(1) of the
National Credit Act but sent its notice to an incorrect address. The bank applied for
default judgment and on 28 September 2010 the registrar granted default judgment
and authorised the sheriff to attach and sell the house to recover the outstanding
debt. The applicant and the bank reached a settlement agreement that staye d the
sale of the property. In this regard the applicant brought her payments up to date by
March 2011 and then brought an urgent application to rescind the default judgment
against her. The High Court dismissed the application. The applicant again fell in to
arrears and various attempts at debt review failed. The bank then sold the property
to a third party purchaser and the applicant again approached the High Court
contending that by paying the outstanding debt in March 2011 she had reinstated the
credit a greement. In January 2014 the High Court found in her favour and ruled that
the original credit agreements between the applicant and the bank had indeed been
reinstated in March 2011 which precluded the bank from selling the property. The
sale failed to be set aside.
[18] The bank appealed to the Supreme Court of Appeal against the decision and
in March 2015 the Supreme Court of Appeal reversed the High Court order and held
that the applicant could not have reinstated the agreement because the property had
already been sold in execution. By a majority of the Constitutional Court, the appeal
was upheld against the decisio n of the Supreme Court of Appeal and the
Constitutional Court observed that because the constitutional values of fairness and
equality inform the purposes of the Act, an interpretation of the Act should strike the
appropriate balance between the competing rights of the consumer and the credit
provider. The purpose of section 129(3) was to encourage consumers to pay their
overdue debts, default charges and legal costs. Consumers with good standing were
then rewarded with reinstatement of the credit agreement s on the return of the
attached property. The majority of the court found that the applicant had reinstated
the credit agreement when she settled the arrears in full in March 2011. The
consumer was not compelled to give notice to or seek the consent or coo peration of
the credit provider. The consumer could not be expected to take creative steps to
find out what legal costs needed to be paid in order for the reinstatement to occur
nor could a consumer in the applicant’s position be expected to initiate taxat ion of
the legal costs or seek agreement with the credit provider on the quantification of
those costs. The credit provider had to take the necessary steps to recover the legal
costs. These costs became due and payable only when they were reasonable,
agree d or taxed and on due notice to the consumer.
[19] The bank had contended that the applicant’s right to reinstate the credit
agreement was limited by the provisions of section 129(4) of the National Credit Act.
Section 129(4) precluded a consumer from reinstating a credit agreement after the
property had b een sold pursuant to an attachment order. It also prevents a consumer
from reinstating the credit agreement after the extension of any other court order
enforcing that agreement or after cancellation of the credit agreement. The majority
of the Constitutio nal Court held that the sale in execution in casu would not have
prevented reinstatement because it took place in April 2013, just over two years after
the applicant had cleared her arrears for the first time. Although the bonded property
had been attached no sale in execution occurred and no proceeds of the sale were
realised at any time before she cleared her arrears in 2011. The applicant was
accordingly within her rights to reinstate the credit agreement.
[20] In the matter before me there are several strik ing similarities but there are
also certain differences.
[21] As was pointed out by myself above, the notice of motion with regards to this
aspect seeks simply a declaration of rights which are, as I have already stated, self -
evident. Insofar as I understand t he applicant correctly, arguing the matter in person
and from considering the founding affidavit in support of the relief he seeks, it
appears that this is in fact the relief that the applicant seeks.
[22] I must immediately interject to mention that during the course of argument the
applicant handed up a draft order to myself of revised relief he sought. In terms of
the draft order, the relief sought in terms of the provisions of section 129(3) of the
Natio nal Credit Act was effectively excluded. Counsel for the respondents argue that
this amounted to an abandonment of the relief sought, however, considering that the
applicant represented himself in the proceedings and ex abudante cautella , I believe
it is i mportant to nonetheless consider this argument and as premised upon the
facts.
[23] From my understanding of the Nkata judgment and more particularly the
majority judgment, whether or not judgment had been granted is irrelevant. As such,
whether or not summary judgment had been granted and whether or not had been
complied with, is a fact, which when considering the provisions of section 129(3) of
the National Credit Act is an aspect which may be considered, but more important
facts which the court will consider is whether or not the overdue amounts together
with the credit provider’s permitted default charges and reasonable costs enforcing
the agreement up to the time of reinstatement have been paid.
[24] Furthermore and returning to the facts of the matter before m e and more
particularly what is recorded in the founding affidavit it appears that reinstatement
was not foremost in his mind when the applicant made the payment of
R1,440,000.00. In fact in the following two or three paragraphs in his founding
affidavit h e concedes that the amount may not have been for the full amount of
arrears and may not have included the default charges and the costs and that this
aspect was an aspect which he still needed to determine from the attorneys and
hence the dispatching of ce rtain correspondence.
[25] Albeit that this is the applicant’s contention, the fact of the matter remains that
the reinstatement occurs by operation of law. In this regard and with reference to the
Nkata judgment above, the Constitutional Court held as follows:
“[105] The reinstatement occurs by operation of law. This is so
because the wording of the provision is clear that the consumer’s
payment in the prescribed manner is sufficient to trigger
reinstatement. She may reinstate by paying the creditor provider
arrears th at are due, permissible default charges and legal costs.
Reading in a requirement of prior notice to the creditor provider as
well as a reinstatement that does not occur automatically against due
payment, would unduly limit the value to the consumer of the remedy
of reinstatement. It would unduly diminish the usefulness of the relief
of reinstatement of the consumer where saddled with the procedural
requirements most consumers are likely to fault her on .”
[26] This then begs the question “ was there payment of R 1,440,000.00 sufficient
to pay all the arrears and sufficient enough to trigger the reinstatement by operation
of law ”.
[27] Unfortunately the founding affidavit is not very helpful in this regard.
[28] In his replying affidavit the applicant appears to change tac , this time insisting
that the R1,440,000.00 was paid not only to settle the arrears but also advance
payments due and now contends that the first respondent refused to give him the
information to determine whether or not he had reinstated the agreements, even
after he was forced to bring the urgent application. (Paragraph 9 of the replying
affidavit.)
[29] In support of these contentions the applicant relies on the statement of his
bond accounts for the period 1 March 2023 to 29 February 2024.
[30] This in itself is also not of assistance in that although it indicates receipt of
payments for that year in the sum of R1,448,000.00 and two further payments of
R20,000.00 on 18 January 2024 and again on 6 February 2024, the statement still
indicates an arrears at the end of the term in the sum of R224,849.12.
[31] During argument, counsel acting on behalf of the respondents referred me to
a letter annexed to the respondents’ answering affidavit as annexure “TMP6” in
terms of which it is made very clear that the applic ant had failed to settle the arrears
as per the agreement and the endorsed court order (the order granted in the
summary judgment proceedings) and that the home loan account had fallen to
further arrears effectively as of 6 August 2020 in the sum of R511,7 35.82.
CONCLUSION
[32] Considering the totality of the evidence before me, I cannot find any evidence
that demonstrates that the arrears or overdue amounts as at 29 November 2023,
when the payment was made, were settled. In fact when one considers the bank
statement of the bond accounts for the particular period and furthermore the
abovementioned correspondence it appears that on the papers that the payment of
the sum of R1 ,440,000.00 was in fact insufficient to settle the overdue or arrear
amounts. This is also supported by the applicats own version where he postulates as
to whether or not he has settled the overdue amount.
[33] This being the case and on the papers before and assuming for the moment
that the applicant’s case was in fact for the reinsta tement of the agreement, this, on
the papers before me must fail.
[34] Accordingly and considering the above I do not believe that on the papers
before me the applicant has made out a proper case justifying the relief that he
seeks. He is obviously not without remedy and is entitled in terms of the provisions of
section 129(3) of the National Credit Act entitled at this stage still to approach the
respondents with a view to settling amounts outstanding and to seek reinstatement
of the credit agreement. During t he course of argument counsel for the respondents,
Adv. Kollapen, advised me that her instructions were that as at the time of the
hearing of this matter that the arrears on the bond amounted to just over R1 million .
If the applicant is genuine about settl ing his arrears and reinstating the credit
agreement, he has ample opportunity to approach the respondents with a view to
settling this amount and dealing with it accordingly.
[35] However, in terms of the current application before me, I find no grounds to
justify granting the relief sought and accordingly I must dismiss the application with
costs. Insofar at the costs in this matter are concerned I do not find any malice in the
application brought by the applicant and considering that he brought it in person and
is not legally skilled I do not believe that these proceedings warrant an order of costs
on a punitive scale and accordingly I make the following order:
ORDER
(1) The application is dismissed with costs, such costs to be paid on a party and
party scale i n terms of scale B.
______________ ______
HERSHENSOHN AJ
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 10h00 on this 6 May 2025.
Appearances
Counsel for the Applicant : None
instructed by n/a
Counsel for the Respondents : Adv K Kollapen
Instructed by Hasbroek Boezaart
Date of Hearing: 22 April 2025
Date of Judgment: 6 May 2025