SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISIN, PIETERMARITZBURG
CASE NUMBER: 8149/2024P
In the matter between:
ABSA BANK LIMITED FIRST PLAINTIF/APPLICANT
ABASA HOME LOANS GUARANTEE
COMPANY (RF) PTY LTD SECOND PLAINTIFF/APPLICANT
And
MAFAHLENI ENGINEERS AND
PROJECT MANAGERS CC FIRST DEFENDANT/RESPONDENT
TREVOR SIZA ZUMA SECOND DEFENDNAT/RESPODENT
JUDGMENT
P C BEZUIDENHOUT J :
[1] Applicants brought an application for summary judgment against Defendants as
well as an application in terms of Rule 46A to have certain property declared
executable.
[2] Defendants brought an application for condonation for the late filing of the ir
heads of argument and practice note . This was not opposed by Plaintiffs and
condonation was accordingly granted.
[3] In the application for summary judgment Plaintiffs seek judgment against First
Defendant in the sum of R 1 249 777 -60 and in respect of Second Defendant the sum of
R 1 122 000 -00 plus interest at the rate of 13% per annum. The claim result s from a
loan secured by a mortgage bond which was granted and which has been breached.
Second Defendant signed a suretyship in the amount of R 1 122 000 -00.
[4] The Defendants in their plea admitted that there was an amount owing to
Plaintiffs but disputed the amount thereof. It further sets out in the plea that the property
was to be placed on Help U sell programme of First Plaintiff and that this was to avoid a
judgment against them. Defendants therefore in their plea seek an order that the
application in terms of Rule 46A be stayed pending the sale of the property on Plaintiffs
Help U sell programme or staying the application pending the outcome of the
application for summary judgment. Defendants contended that the amount of the
quantum was incorrect as from 19 March 2024 to sixteen days later it increased from R
1 236 564 -99 to R 1 249 777 -60. However this is due to the time lapse and due to the
fact that the monthly instalments were not being paid and interest on the debt accruing.
[5] Defendants in their answering affidavit noted the amount of arrears of R 168 634 -
40 on 13 August 2024. This was not disputed or denied. It is also not disputed that no
payments were made.
[6] It is therefore apparent from the application papers that it is not disputed that
Defendants are indebted to Plaintiffs in a substantial amount and that no payments
have been made.
[7] It is also in terms of the practice directive of this division not possible to grant
summary judgment at this stage and then to stay the sale in execution of the said
property . It must be done at the same time.
[8] The test to be applied is set out in Maharaj v Barclays National Bank Ltd 1976 (1)
SA 418 and Breytenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)
[9] A reading of the plea, the affidavit filed opposing summary judgment the heads of
argument and the submissions made on behalf of Defendants Defendants have not
shown that they have any bona fide defence to the claim nor that such can be proved at
trial. The fact that the property is listed on the Help U programme is not a defence .
Plaintiffs have made out a case for the relief claimed and summary judgment as claimed
should therefore be granted.
[10] Once it has been found that summary judgment should be granted the issue
arises as to whether the property should be declared executable. It is common cause
that the property is vacant land.
[11] The property has been enrolled on the Help U sell programme since 24 June
2024 but has still not been sold. Further if one considers the brochure in respect of the
said Help U sell programme it sets out that the collection process by Plaintiff will not end
during this period but will continue .
[12] The updated statement from the eThekwini Municipality indicates that the rates
payable is in arrears for the sum of R 511 882 -84. A valuation of the said property on 19
February 2024 was R 1 870 000 -00. An affidavit by the valuer one Kribash Naidoo
indicates that after an inspection of the property on 11 March 2025 that the property’s
market value to be R 2 500 000 -00.
[13] Defendant in its opposing affidavit to the Rule 46A application raises no valid
defence or reason nor during argument why the said property should not be sold in
execution . The debt outstanding is large, payments have not been made for many
months and the amount outstanding to the municipality is also high. Further as stated it
is vacant land and is not residential property. The placing of the property for sale on the
Help U programme does not stop legal proceedings and further the arrears continue to
build up as the monthly instalments are still payable even though it may be on the Help
U programme. There is accordingly as I have mentioned nothing which would prevent
the sale of the said property in execution.
[14] Although it is not residential property it is property of substantial value it and
would in my view be just and equitable that a reserve price be set for the sale in
execution. After deducting what is owing to the eThekwini Municipality from the latest
valuation of the property an amount of approximately R 1 980 000 -00 remains. It is also
indeed so that in a forced sale a lower price is normally attained and considering these
factors it would appear to me that a reserve price of R 1 500 000 -00 would be
appropriate in the circumstances.
[15] A draft order was provided by the Plaintiffs counsel and in my view it is
unnecessary to incorporate the whole order into the judgment as it is attached to the
judgment. I have made certain amendment to the said draft order.
[16] Accordingly I grant an order for summary judgment as well as for the said
property to be declared executable with the reserve price of R1 500 000 -00 as set out in
the amended draft order attached hereto.
P C BEZUIDENHOUT J.
DRAF ORDER
Having considered the documents filed of record and having heard Counsel for the
Plaintiffs and Defendants,
IT IS ORDERED THAT:
FIRST ORDER
1. Summary judgment is granted in favour of the First Plaintiff against the First and
Second Defendants, jointly and severally, one paying the other to b absolved for:
1.1. Payment of the sum of R 1 249 777.60 (limited to the capital amount of R1
122 000.00 in respect of the second defendant);
1.2. Interest thereon at the rate of 13.00% per annum calculated and
capitalised monthly in arrears from 5 April 2024 to date of payment in full,
both days included.
2. Judgment is granted in favour of the Second Plaintiff against the First defendant
for:
2.1. payment of the sum of R 1 249 777.60;
2.2. interest thereon at the rate of 13.00% per annum calculated and
capitalised monthly in arrears from 5 April 2024 to date of payment in full,
both days included.
3. Any payment in respect of the judgment set forth in paragraph 1 above shall
reduce the liability in paragraph 2 above, in like amount.
4. First and Second Defendant shall pay Plaintiffs ’ costs of suit on an attorney and
client scale.
SECOND ORDER
1. The following immovable property is declared specially executable in favour of
the Second Plaintiff:
PORTION 341 (OF 3) OF ERF 5[...] S[...]
REGISTRATION DIVISION FU
PROVINCE OF KWAZULU NATAL
IN EXTENT 983 (NINE HUNDRED AND EIGHTY THREE) SQUARE
METRES
HELD BY DEED OF TRANSFER NUMBER T31689/22
AND SUBJECT TO SUCH CONDITIONS AS SET OUT IN TH E
AFORESAID DEED OF TRANSFER AND MORE ESPECIALLLY
SUBJECT TO RESTRAINTS AGAINST FREE ALIENATION,
TRANSFER, HYOTHECATION, MORTGAGE OR OTHER
ENCUMBRANCE IN FAVOUR OF TONGAAT HULETT LIMITED,
REGISTRATION NUMBER 1892/000610/06, AND FURTHER SUBJECT
TO RESTRAINTS AGAINST FREE ALIENATION AND TRANSFER IN
FAVOUR OF SALTA MASTER MANAGEMENT ASSOCIATION (RF)
NPC, REGISTRATION NUMBER 2021/348072/08 AND SIBAYA NODE 6
PROPRIETARY LIMITED, REGISTRATION NUMBER 2019/2951 27/07
(the “Property”)
2. The sale in execution in respect of the Property shall be subject to a reserve
price of R 1 500 000.00 (one million five hundred thousand rand).
3. The Fist and Second Defendants shall pay the Plaintiffs’ costs of suit, of the
application on the attorney and client scale.
JUDGMENT RESERVED ON: 15 MAY 2025
JUDGMENT HANDED DOWN ON: 20 MAY 2025
COUNSEL FOR APPLICANTS/PLAINTIFFS: S P ANDERTON
Instructed by: Johnston & Partners
Umhlanga Rocks
Ref: AJ/RJ/pi/MAT 17555
Tel: 031 536 9700
Email: rebecca@johnstonkzn.co.za
c/o: Stowell & Co
Pietermaritzburg
Ref: S Myhill
COUNSEL FOR RESPONDENTS/DEFENDANTS: M P PEDERSEN
Instructed by: M B Pedersen & Associates
Westville
Ref: M B Pedersen
Tel: 031 072 0324
Email: admin@durbam -law.co.za
c/o: Bertus Appel Attorneys
Pietermaritzburg
Tel: 033 342 3551