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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: 1342/2023
In the matter between:
FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Applicant
and
MPUSANA BRUCE TANI Respondent
Neutral citation: FirstRand Mortgage Company (RF) (Pty) Ltd v MB Tani
(1342/2023) [2025] ZAFSHC 180 (18 June 2025)
Coram: Van Zyl, J
Heard: 23 January 2025
Delivered: 18 June 2025
Summary : Application to declare immovable property specially
executable – sufficient that respondent is advised of section 129(3) of the National
Credit Act 34 of 2005 in the summons and particulars of claim. Sworn v aluation for
setting of reserve price accepted in form of supplementary affidavit.
ORDER
1. The respondent`s immovable property known as ‘ A unit consisting of:
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(a) Section No. 22 as shown and more fully described on the Sectional
Plan No. SS182/2011, in the scheme known as Park Avenue in respect of the land and building or buildings situate at Bloemfontein Extension 181, Mangaung Metropolitan Municipality, of which section the floor area, according to the said Sectional Plan, is 73(seventy -three) square metres in extent; and
(b) An undivided share in the common property in the scheme apportioned
to the said section in accordance with the participation quota as endorsed on
the said Sectional Plan.
Held by Deed of Transfer No. S […]’
is hereby declared specially executable.
2. The Registrar of the Court is authorised to execute a Warrant of
Attachment in respect of the aforesaid immovable property.
3. The sale of the aforesaid immovable property by the Sheriff will be
subject to a reserve price of R460 000.00
4. The respondent is ordered to pay the costs of this application on a scale
as between attorney and client.
JUDGMENT
Van Zyl , J
[1] This is an application in terms of Uniform Rules 46(1) and 46A to declare the
respondent’s immovable property specially executable. The said immovable
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property , which I shall hereinafter refer to as ‘the property’, is described in the
application as follows:
‘A unit consisting of:
(c) Section No. 22 as shown and more fully described on the Sectional
Plan No. SS182/2011, in the scheme known as Park Avenue in respect of the land and building or buildings situate at Bloemfontein Extension 181, Mangaung Metropolitan Municipality, of which section the floor area, according
to the said Sectional Plan, is 73 (seventy -three) square metres in extent; and
(d) An undivided share in the common property in the scheme apportioned
to the said section in accordance with the participation quota as endorsed on the said S ectional Plan.
Held by Deed of Transfer No. S […]’
[2] The applicant is further seeking ancillary relief, which includes, inter alia, that
the property may be sold in execution by the sheriff with a reserve price of at least
R100 000.00, alternatively for a reserve price as determined by the Court. The
applicant is also seeking payment of the costs of the application on an attorney and
client scale.
Background:
[3] On or about 30 January 2020 the applicant and the respondent concluded a
written Home Loan Agreement (‘the loan agreement’ ) in terms whereof the applicant
lent to the respondent the amount of R787 500.00 upon security of a guarantee. The
respondent executed an indemnity in favour of the applicant. The respondent’s
obligations under the indemnity have been secured by the registration of a covering indemnity mortgage bond over the property in favour of the applicant. The property is
the primary residence of the respondent.
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[4] The applicant is a duly registered credit provider in terms of the provisions of
the National Credit Act, 34 of 2005.
[5] In breach of the respondent’s obligations in terms of the loan agreement, the
respondent failed to make punctual payments to the applicant of the instalments due and payable under the loan agreement.
[6] After having complied with the National Credit Act, the applicant issued
summons against the respondent in terms whereof the applicant (as plaintiff) sought payment by the respondent (as defendant) of the total outstanding amount due and
payable in terms of the loan agreement, together with interest thereon. The applicant
also sought an order declaring the property specially executable with ancillary relief ,
as well as the payment of costs . On 31 August 2023 default judgment was granted in
favour of the applicant against the respondent for payment of the sum of R815 939.50, with interest and costs on an attorney and client scale.
[7] On 19 September 2024 the applicant issued the present application against the
respondent. The respondent is opposing the application and filed an answering
affidavit. The applicant thereupon filed a replying affidavit.
[8] The respondent raised two points in limine in his answering affidavit.
First point in limine : non- compliance with Rule 46A(5)(a):
[9] In his answering affidavit , filed on 5 November 2024, the respondent stated that
Rule 46A seeks to protect home owners by ensuring that their homes are not sold in execution for prices which are not market related. He further averred at paragraph 8
of his answering affidavit as follows:
‘I am advised that our courts are called upon to take account of the market
value of the property, making a fair determination of what a fair reserve price would be. It is therefore a requirement for an applicant to have a sworn
independent evaluation certificate by a property evaluator which in this instance the Applicant does not have. The Applicant has not complied with this
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requirement. The Applicant used a general valuation which does not give this a
true reflection of the market value. I submit that as a result, this application falls
to be dismissed.’
[10] In the founding affidavit deposed to on 6 September 2024, it is averred that
the applicant sent an independent valuer to the property to investigate and ascertain
the condition and market value of the property, but that the said value r was not able
to gain access to the property and could not obtain the details of the occupants. The
applicant thereafter obtained an ‘updated external valuation of the property’ attached
to the founding affidavit as annexure ‘RG8’ , in the amount of R850 000.00 and which
valuation date was 6 December 2023.
[11] The applicant’s replying affidavit was subsequently filed on 5 December 2024.
In the said replying affidavit , the applicant again referred to the valuation report
attached to the founding affidavit as annexure ‘RG8’. The applicant then further
averred as follows in its replying affidavit:
‘11. An immovable property’s market value fluctuates and depends on a
number of factors. These values change between the time summons is
issued, and at the time the matter ultimately serves before the Court for determination and an order declaring the property specially executable.
12. For this reason, the Applicant adopted the practice of obtaining a new
valuation, where necessary, supported by an affidavit by the valuator, closer to the time these applications are set down for hearing, and filed separately in the court file.
13. The purpose of this practice is to ensure that the correct and most
recent values are placed before Court for consideration.
14. I confirm that an affidavit by the property valuer will be served and filed
containing an updated market value closer to the hearing of this application.
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15. It should be noted that the Respondent raised no dispute of the value
of the immovable property at all.
16. In the premises it is submitted that the Respondent’s first point in limine
should be dismissed.’
[12] The application was subsequently enrolled for 23 January 2025. On 17
January 2025 the applicant filed a sworn valuation by one Frannie Marais who confirmed under oath that he valuated the property on 14 January 2025, that the
market value thereof is R800 000.00 and that the estimated forced sale value is
R560 000.00. He further stated in his affidavit that he is an independent registered
valuer and is not an employee of the applicant. The applicant instructs him from time
to time to attend to valuations of immovable property on its behalf, for which he is then remunerated at an agreed tariff. He is registered with the South African C ouncil
for the Property Valuers Profession (SACPVP), as well as with the South African
Institute of Valu ers (SAIV) , in accordance with the provisions of the Property Valuers
Profession Act, Act no. 47 of 2000.
[13] Mr Ngombane, who appeared on behalf of the respondent, referred in the
respondent`s heads of argument to the general rule and well known authority that
normally there are only three sets of affidavits allowed in motion proceedings. He
submitted that the respondent will suffer prejudice should the supplementary affidavit
be accepted into evidence, since the respondent will not have the chance to respond to the supplementary affidavit.
[14] Rule 46A(2)(b) determines as follows:
‘A court shall not authorise execution against immovable property which is the
primary residence of a judgment debtor unless the court, having considered all relevant factors, considers that execution against such property is warranted.’
[15] Rule 46A(5) provides as follows:
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‘Every application shall be supported by the following documents, where
applicable, evidencing:
(a) the market value of the immovable property;
(b) the local authority valuation of the immovable property;
(c) the amounts owing on mortgage bonds registered over the immovable
property;
(d) the amount owing to the local authority as rates and other dues;
(e) the amounts owing to a body corporate as levies; and
(f) any other factor which may be necessary to enable the court to give
effect to sub -rule (8):
Provided that the court may call for any other document which it considers
necessary.’
[16] In terms of Rule 46A(8) a court considering an application under this
rule may –
‘(a) of its own accord or on the application of any a ffected party, or der the
inclusion in the conditions of sale, of any condition which it may consider appropriate;
(b) order the furnishing by –
(i) a municipality of rates due to it by the judgment debtor; or
(ii) a body corporate of levies due to it by the judgment debtor;
(c) on good cause shown, condone –
(i) failure to provide any document referred to in sub- rule (5); or
(ii) delivery of an affidavit outside the period prescribed in sub- rule (6)(d);
(d) order execution against the primary residence of the judgment debtor if
there is no other satisfactory means of satisfying the judgment debt;
(e) set a reserve price;
(f) postpone the application on such terms as it may consider appropriate;
(g) refuse the application if it has no merits;
(h) make an appropriate order as to costs, includi ng a punitive order against
the party who delays the finalization of an application under this rule; or
(i) make any other appropriate order.’
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[17] In Absa Bank Ltd v Mokhebe and Related Cases 2018(6) SA 492 (GJ) the
court held as follows at para 57:
’. . . It is thus incumbent upon the bank or bondholder to place “all relevant
circumstances” before the court when it seeks an order for execution. This, in
our view, includes a proper valuation of the property (under oath), the outstanding arrears, municipal accounts and like information. This is not to
thwart the mortgagee’s right to execution, to which it may be entitled, but to secure a just and equitable outcome.’
[18] In Nedbank Ltd v Mzizi and Related Cases 2021(4) SA 297 (GJ) at para 20 the
court held as follows:
‘To my mind, an internal bank valuation is not sufficient in and of itself to
establish a reserve value unless it contains or is accompanied by evidence of independent verification as to value. Thus, either independent valuations
should be obtained or further information as to value should be used, in addition to the bank’s valuation, to satisfy the court as to the appropriate
reserve value. In all instances, the valuation should be proven by an affidavit of
a person who is actually conducted the valuation him/herself and who is
properly qualified in this respect.’
[19] In SB Guarantee Company (Pty) Ltd v De Sousa (2023/035447) [2024]
ZAGPJHC 459; 2024(6) SA 625 (GJ) (6 May 2024) the court held that applications under Rule 46A must include an independent and reliable valuation of the property provided under oath by a qualified expert valuer. The valuations should, in the
absence of other evidence which may satisfy a court as to the expertise of the person who has determined that value, be those of an accredited professional valuer registered in terms of the Property Valuers Profession Act , 47 of 2000.
[20] In this matter an unsworn valuation was initially attached to the founding
affidavit as annexure ‘RG8’. On a date which is not evident from the papers, an
affidavit by the person who performed the valuation, one Rinus Pretorius, was filed, which affidavit is dated 21 February 2024. In the said affidavit Mr Pretorius confirmed
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the valuation of the property he performed on 6 December 2023 to be R550 000.00.
He further confirmed that he is an independent registered valuer , not an employee of
the applicant and registered in accordance with the provisions of the Property
Valuers Profession Act, 47 of 2000.
[21] Although this affidavit, read with the valuation previously referred to, now
constitutes a valuation under oath, it is not evident whether this affidavit was served
upon the respondent’s attorney.
[22] Even if it had been served upon the respondent’s attorney, the fact remains
that it was a valuation dated 6 December 2023, whilst the application was heard only on 23 January 2025. It was thus outdated. In the circumstances the supplementary
affidavit with the updated valuation performed on 14 January 2025, which was
indeed served on the respondent`s attorney, constitutes an updated and reliable
document for purposes of my adjudication of the application and more pertinently for purposes of determining a reserve price. Had the applicant not placed the said supplementary, updated valuation before me mero motu, I would have postponed
the application with an order that the applicant places an updated valuation before
me.
[23] The respondent at no point disputed the market value of the property and
there is no evidence to suggest that the values, especially the updated valu ation, is
incorrect and unreliable. It will consequently also serve no purpose to postpone the
application for the respondent to obtain a valuation.
[24] The first point in limine can consequently not be upheld.
Second point in limine : defective notice of motion
[25] According to the respondent the applicant is enjoined to have the following
statement in its notice of motion:
‘The defendant’s (or respondent’s) attention is drawn to Section 129(3) of the National Credit Act 34 of 2005 that he/she may pay to the credit grantor all amounts that are overdue together with the credit provider’s permitted default
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charges and reasonable agreed or taxed costs of enforcing the agreement
prior to the sale and transfer of the property and so revive the credit agreement.’
[26] The respondent averred in its answering affidavit that the applicant failed to
discharge the aforesaid duty, that the notice of motion is therefore fatally defective
and the that application consequently falls to be dismissed.
[27] For purposes of the aforesaid argument, Mr Ngombane relied on Absa Bank
Ltd v Mokebe and Related Cases 2018(6) SA 492 (GJ) at 527 D – E where the court
found as follows regarding the aforesaid statement:
‘Any document initiating proceedings where a mortgage property may be declared executable must contain the following statement in a reasonably prominent manner . . .’
[28] Mr Steenkamp, who appeared on behalf of the applicant, correctly pointed out
during his oral argument that at p.3 of the summons issued in the present matter,
under the heading in bold and capital letters ‘ THE DEFENDANT IS SPECIFICALLY
REFERRED TO THE CONTENTS OF THE PARAGRAPHS HEREIN BELOW ’, the
following paragraphs appear:
‘(e) The Defendant’s attention is drawn to Section 129(3) of the National
Credit Act, Act 34 of 2005 that Defendant may pay to the credit grantor all amounts that are overdue together with the credit provider’s permitted default charges and reasonable agreed or taxed costs of enforcing the agreement prior to the sale and transfer of the property and so revive the credit agreement;
(f) The default charges and costs of enforcing the agreement mentioned
above in paragraph (e) must be paid before the credit agreement will be re-instated. The amount of default charges and enforcement costs can be
obtained from Plaintiff’s attorneys on (0[ …] with reference: L[…].’
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[29] Two paragraphs with similar wording were repeated at paragraphs 10.7 and
10.8 of the particulars of claim.
[30] The particulars of claim attached to the summons claimed payment of the
total amount due and payable by the respondent to the applicant in terms of the lo an
agreement, as well as declaring the property specially executable.
[31] Mr Steenkamp submitted that the aforesaid directive issued by the court in
Absa Bank Ltd v Mokebe requires that the document ‘ initiating’ proceedings where
property may be declared executable must contain the said statement. In this regard
he submitted that in the present matter the applicant initiated legal proceedings
against the respondent by way of summons and the particulars of claim , both of
which indeed contain the relevant statement in respect of Section 129 of the National
Credit Act. This submission is confirmed by the following statement at paragraph 14
of Absa Bank v Mokebe:
‘In our view the money judgment is an intrinsic part of the cause of action and inextricably linked to the in rem claim for an order for execution, the latter
which is non- existent without the money judgment. The default of the debtor
and the money judgment are a pre- condition for the entitlement of the
mortgagee to foreclose.’
[32] The second point in limine can consequently also not be upheld.
Conclusion
[33] When considering all the applicable factors that need to be taken into
consideration when deciding whether a writ should be issued, I am of the view that the property is to be declared specially executable. The respondent raised no
defence to the merits as such.
[34] In order to secure a just and fair outcome, I am also of the view that I am to
determine a reserve price based upon all the relevant circumstances placed before me.
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[35] The following values are relevant for purposes of determining a reserve price:
1. The updated market value of the property is R800 000.00’
2. The municipal value of the property is R830 000.00.
3. The average value of the property is R815 000.00.
4. The combined outstanding amount due to the local authority and body
corporate levies is approximately R111 000.00.
5. The reserve price is therefore to be calculated 70% of the average
value of the property, which is R815 000.00, less the outstanding rates, taxes
and levies, which equates to the rounded figure of R460 000.00.
Request for suspension/ postponement of order
[36] Mr Ngombane indicated that it is his instructions to request that should I decide
to declare the property specially executable, I should suspend or postpone the
issuing of the order for four months so as to grant the respondent an opportunity to pay the outstanding arrears, interest and costs on the outstanding loan
[37] The monetary judgment in this matter was granted on 31 August 2023 already.
The writ of execution against the respondent`s moveable property was served on the respondent personally on 4 September 2024 and the total of the movable goods
attached by the Sheriff was approximately R16 319.00 and thus wholly insufficient to
satisfy the judgment debt.
[38] The respondent will in any event have another approximately four months ’
opportunity before the property will be sold in execution. In this regard I refer to paragraph 84 of the founding affidavit:
‘An order authorising a writ of execution against the immovable property of the Respondent is not the proverbial end of the road for the Respondent in that at
least 4 months will lapse before the property may be sold in execution, during which time the Respondent could make arrangements for the repayment of the arrear amount due, which may include the possibility to reinstate the credit
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agreement in terms of section 129 of the National Credit Act, Respondent may
sell the property privately, make use of Applicant`s Quick sell program or conclude a special arrangement with Applicant.’
[39] In the circumstances I am not willing to postpone the issuing of the order.
Costs
[40] The parties agreed at paragraph 2.16.2 of the loan agreements that costs will
be payable on attorney and client scale. There is no reason why such an orde r
should not be granted.
Order
[41] The following order is issued:
1. The respondent`s immovable property known as
‘A unit consisting of:
(e) Section No. 22 as shown and more fully described on the Sectional
Plan No. SS182/2011, in the scheme known as Park Avenue in respect of the land and building or buildings situate at Bloemfontein Extension 181, Mangaung Metropolitan Municipality, of which section the floor area, according to the said Sectional Plan, is 73(seventy -three) square metres in extent; and
(f) An undivided share in the common property in the scheme apportioned
to the said section in accordance with the participation quota as endorsed on
the said Sectional Plan.
Held by Deed of Transfer No. S […]’
is hereby declared specially executable.
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2. The Registrar of the Court is authorised to execute a Warrant of
Attachment in respect of the aforesaid immovable property.
3. The sale of the aforesaid immovable property by the Sheriff will be
subject to a reserve price of R460 000.00
4. The respondent is ordered to pay the costs of this application on a scale
as between attorney and client.
C. VAN ZYL, J
Appearances:
For the Applicant : Adv G Steenkamp
Instructed by : PDR Attorneys
C/O Hendré Conradie Inc.
BLOEMFONTEIN
E-mail: e-service@rossouws.com
jaco@legaledge.co.za
rita@legaledge.co.za
For the Respondent : Adv S Ngombane
Instructed by: Thebe Attorneys Inc.
BLOEMFONTEIN
E-mail: info@thebeattorneys.co.za