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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA )
CASE NO: 87458/2019
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED. YES
DATE 23 MAY 2025
SIGNATURE
In the application between:
EWOUD FREDERICK BOTES APPLICANT
and
S B GUARNATEE COMPANY (RF) PROPRIETARY
LIMITED
(Registration number: 2006/021576/07) FIRST RESPONDENT
STANDARD BANK OF SOUTH AFRICA LIMITED
(Registration number: 1962/000738/06) SECOND RESPONDENT
CHANTELLE SCOTT
(Registration number: NCRBC 3858) THIRD RESPONDENT
THE SHERIFF OF THE HIGH COURT, GEORGE FOURTH RESPONDENT
JUDGMENT
Introduct ion:
1. On 15 February 2024, this court (per the honourable Van Wyk AJ ) granted
summary judgment against the applicant in favour of the first respondent in
the following terms:
1.1. Payment in the amount of R1,606,163.34 (One million six hundred
and sixth thousand one hundred and sixty-three rand and thirty -four
cents);
1.2. Interest on the aforementioned amount calculated at the rate of
10.45% per annum from 8 November 2019 to date of payment, both
dates inclusive;
1.3. An order declaring the immovable property, known as Erf 1[...] H[...] ,
in the municipality and district of George, Province of Western Cape,
(“the immovable property ”) measuring 4.2686 (Four comma two six
eight) hectares, held by Deed of Transfer number T72727/2016 –
subject to the conditions contained therein, specially executable in
terms of Uniform Rule 46A(a)(d), which immovable property is to be
sold in execution by the sheriff with the reserve price;
1.4. A reserve price was set in the amount of R1,498,200.00;
1.5. The registrar is authorised to issue of writ of execution against the
immovable property in terms of Uniform Rule 46A(1)(a)(ii) read with
Uniform Rule 46A(2)(c);
1.6. Costs on an attorney and client scale.
2. The first respondent had a securitized claim against the applicant, based on
a written indemnity agreement (read with the relevant provisions of the
mortgage bond agreement ), which agreement formed part of a sui te of
agreements between the applicant , the first respondent and the second
respondent .
3. The main underlying agreement is a written home loan agreement (“the loan
agreement”) concluded on 17 October 2016 between the applicant and the
second respondent .
4. Pursuant to the conclusion of the loan agreement , a first covering continuing
mortgage bond was registered over the immovable property in favour of the
first respondent .
5. The applicant did not appeal against the summary judgment granted on 15
February 2024.
6. During November 2024, some 9 months after the summary judgment was
granted, the applicant consulted with the third respondent to apply for a debt
rearrangement order per the provisions of the National Credit Act, 34 of 2005
(“the NCA ”).
7. Why the applicant waited approximately 9 months before he approached a
debt counsellor is not explained.
8. Significantly, as long ago as 31 October 2019, the second respondent
caused a section 129 notice in terms of the NCA to be personally served on
the applicant. In terms of this notice, the applicant was advised of his rights
regarding the NCA.
9. Pursuant to the receipt of the section 129 notice, the applicant (until the
summary judgment was granted on the 15th of February 2024) failed to
approach a debt counsellor and failed to exercise any of the remedies that
he may have had in terms of the NCA.
10. In the interim, the first respondent proceeded with execution steps against
the applicant.
11. On 30 January 2025, the sheriff (fourth respondent) delivered a notice of
sale in execution pertaining to the immovable property.
12. This jolted the applicant into action , and on the 19th of February 2025, the
applicant instituted an urgent application, set down to be adjudicated on
25 February 2025.
13. In Part A of the urgent application, the applicant sought an order, inter alia ,
for the stay of the execution of the judgment granted against the applicant on
4 October 2023,1 pending the outcome of Part B of the urgent application.
14. In Part B, the applicant seeks various declaratory orders to the effect that the
applicant was not precluded from applying for debt review pursuant to the
summary judgment being granted. Effectively, the applicant sought to obtain
a declaratory order with the effect that the applicant would be permitted to
rearrange his judgment debt and that the further execution steps pertaining
to the immovable property, be stayed permanently .
15. Even though the applicant seeks an order in terms of Part A, pending the
final determination of Part B of his notice of motion, the applicant's notice of
motion makes it clear that both Part A and Part B are inexplicably set down
on the same day .
16. On 25 February 2025, th e urgent court, (per the honourable Yende AJ ),
granted an order in terms of which the application was removed from the roll
and the applicant was ordered to pay the first and second respondent’s
wasted costs.
17. It is this application that currently serves before me.
The issue(s) :
18. The crisp issue in this matter is whether a judgment debtor is entitled to
apply for debt review , pursuant to a judgment being granted against such
judgment debtor.
1 This date is erroneous as the judgment was granted on 15 February 2024.
19. If not, the applicant is not entitled to the declaratory relief set out in Part B
and self -evidently also not entitled to a stay of execution in terms of Part A to
his notice of motion.
20. Section 86 of the NCA provides as follows:
“Application for debt review:
86. (1) A consumer may apply to a debt counsellor in the
prescribed manner and form to have the consumer declared
over-indebted.
(2) An application in terms of this section may not be made in
respect of, and does not apply to, a particular credit
agreement if, at the time of that application, the credit
provider under that credit agreement has proceeded to take
the steps contemplated in section 130 to enforce that
agreement. ”
(my emphasis)
21. Section 130 of the NCA provides as follows:
“Debt procedures in a Court
(1) Subject to subsection (2), a credit provider may approach
the court for an order to enforce a credit agreement only if,
at that time, the consumer is in default and has been in
default under that credit agreement for at least 20 business
days and –
(a) at least 10 business days have elapsed since the
credit provider delivered a notice to the consumer as
contemplated in section 86( 10), or section 129( 1),
as the case may be;
(b) in the case of a notice contemplated in section
129(1), the consumer has –
(i) not responded to that notice; or
(ii) responded to the notice by rejecting the
credit provider’s proposals …”
22. The delivery of a section 129 notice is a n obligatory step a credit provider
must take when enforcing that agreement.
23. It is common cause that the second respondent delivered a section 129
notice to the applicant and that the applicant failed to respond thereto. As
such, and in accordance with section 86(2), the applicant may not apply to a
debt counsellor in respect of a credit agreement if, at the time of that
application, the credit provider under that agreement has proceeded to take
the steps contemplated in section 130 to enforce that agreement.
24. Accordingly, the second respondent is excluded from any subsequent debt
review application.
25. In Nedbank Limited v The National Credit Regulator ,2 the Supreme Court
of Appeal held that consumers can only approach a debt counsellor after
they have received a section 129(1)(a) notice for the purposes as set out in
section 129(1)(a) and not for the general debt review as contemplated by
section 86(1). The bar against debt review in terms of section 86(2) of the
Act was accordingly interpreted to commence once a section 129(1)(a)
notice was delivered to a consumer in respect of a specific credit agreement.
26. In FirstRand Bank Limited v Barnard ,3 the court indicated that the object
of debt review and restructuring is not to enable a consumer to continue in
possession and use of the relevant property after the instalment sale
agreement under which that property is held is cancelled. The court
remarked that the same can be said in regard to a claim on a home loan.
27. This is fatal to the relief sought by the applicant for a stay of the execution
proceedings.
28. In Nedbank Limited and Others v National Credit Regulator and
2 2011 (3) SA 581 (SCA).
3 2015 JDR 1614 (GP) at para 26.
another ,4 the Supreme Court of Appeal indicated the following in this
regard:5
“[14] …The purpose of a s 129(1)(a) notice is the resolution of a
dispute and the bringing up to date of payments under a
specific credit agreement. While it is a ‘step’ prior to the
commencement of legal proceedings it is also the first ‘step’ the
credit provider ‘has proceeded to take … to enforce that
agreement’ (s 86(2)). It does not exclude a debt review save in
so far as it relates to the particular credit agreement under
consideration. Nor does it exclude a general debt review
pursuant to ss 83 and 85. Key to the construction of s 86(2) are
the words ‘has proceeded to take the steps’ used in s 86(2). A
‘step’, amongst its meanings, includes ‘an action or movement
which leads to a result; one of a series of proceedings or
measures’. To ‘proceed’ means ‘to go on with an action’ and
also ‘with stress on the progress or continuance of the action’
to ‘go on or continue what one has begun; to advance from the
point already reached’. By the use of the words ‘has
proceeded’ and ‘steps’ an ongoing process is indicated of
which the s 129(1)(a) notice is the first ‘step’. It is the only step
expressly mentioned in s 129 although the other ‘steps’ or
requirements referred to in s 130 are incorporated by
reference. Section 129(1)(b)(i) makes it clear that the notice in
terms of s 129(1)(a) is a necessary ‘step’ before legal
proceedings may be commenced. It follows that by giving the
notice envisaged by s 129(1)(a) the credit provider ‘has
proceeded to take the steps contemplated in section 129 to
enforce that agreement’: a debt review relating to that specific
agreement is thereafter excluded .”
29. From the aforementioned, it is clear that a debt review relating to this specific
loan agreement is excluded.
4 2011 (2) SA 581 (SCA).
5 At para 14
30. Herein lies the difficulty for the applicant. The second respondent delivered a
129 notice to the applicant during 2019, and as such took steps to enforce
the debt. As such the loan agreement cannot form part of any debt review
process. As such, there is simply no merit in any of the declaratory orders
sought by the applicant.
31. As the declaratory relief is plainly without merit, the applicant would not be
entitled to an order for the stay of the execution proceedings.
The intervention application:
32. Prior to the hearing of the application, Mr Barend Haasbroek filed an
application in which he seeks leave to be admitted as an intervening party “in
all proceedings under case number 87458/2019, in terms of Rule 12 of the
Uniform Rules of Court ”.
33. Mr Haasbroek also seeks the following relief:
33.1. An order that the further execution of the judgment be suspended in
accordance with Uniform Rule 45A;
33.2. An order that the judgment granted in favour of the first respondent be
set aside in accordance with Uniform Rule 42(1)(a);
33.3. That the sale in execution of 21 February 2025 be cancelled and t hat
the fourth respondent releases the immovable property from
attachment;
33.4. That the first, second and/or fourth respondents be interdicted and
prohibited from continuing with the transfer of the property pursuant to
the sale in execution of 21 February 2025 and that they be prohibited
from transferring the property to the execution purchaser, or any other
party.
34. Mr Haasbroek appeared during the hearing of the matter but indicated that
he was not persisting with his intervention application, at this stage . Even if
he did, in my view Mr Haasbroek does not have a direct and substantial
interest in the subject matter of the action. I need not decide this issue as he
did not persist with his intervention application before me.
35. In the premises, the following order is made:
35.1. The application (both Part A and Part B) is dismissed with costs, such
costs to include the cost of the first respondent’s counsel on Scale B .
SG MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for Applicant: Adv H Marais
Attorneys for the applicant: Vezi & De Beer Incorporated Attorneys
On behalf of First Respondent: In person
Date of Hearing: 19 May 2025
Date of Judgment : 23 May 2025