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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 33723 /15
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 11/06/2025
SIGNATURE
In the matter between:
CATHARINA BABY BOTHA Applicant
and
HOME OBLIGORS MORTGAGE ENHANCED Respondent
Delivered: 11 June 2025. This judgment was prepared and authored by the Judge
whose name is reflected and is handed down electronically by circulation to the
parties and their legal representatives via email, as well as by uploading it to the
electronic file of this matter on Caselines.
___________________________________________________________________
JUDGMENT
MOILA AJ
Introduction
[1] This is an application for a declaratory order to dismiss all financial claims the
respondent purports against the applicant , rescind the default judgment order dated
10 September 201 5, stay the writ of execution and set the matter down for
reconsideration .
[2] The r espondent opposes the application, contending that it is a mala fide
application . The respondent brings a counter application that the applicant be
declared a vexatious litigant , as contemplated in terms of section 2(b) of the
Vexatious Proceedings Act 3 of 1956.
The parties
[3] The applicant is Ms Cath arina Baby Botha , residing at 1 […] B[…] U[…],
Mabopane , since 1987 (unrepresented) . The respondent is Home Obligators
Enhanced , represented by J E astes SC.
Factual background
[4] On or about 25 June 2009 and 11 November 2009 , respectively, the applicant
and the respondent, both duly represented, entered into two written loan
agreements .
[5] The applicant ’s indebtedness to the respondent , arising from the se loan
agreements , was secured by the registration of two covering mortgage bonds under
the bond number B […] and B […] over an immovable property.
[6] The applicant breached the agreements and the registered mortgage bonds
by failing to pay her monthly instalments on the due dates, as agreed with the
respondent.
[7] Subsequent thereto , the respondent issued a summons against the applicant
on 13 May 2015 under case no 33725/15. The claim was for a total payment of
R260,168.73, with arrears amounting to R20,488.35 .
[8] On 5 June 2015, the applicant and the respondent, both duly represented,
entered into a written agreement. Pursuant to this agreement, the applicant was
required to make a monthly payment of R3,500.00, effective from 26 June 2015,
along with an additional payment of R268.27 to settle the arrears . The applicant
subsequently breached this agreement.
[9] Subsequently , on 10 September 2015 , the respondent applied for default
judgment, and the court granted judgment against the applicant in favour of the
defendant. In terms of Rule 46A of the uniform rules, the order also declared the
immovable property covered in terms of the bonds specially executable. The parties
thereafter agreed to deter the sale on condition applicant paid and adhered to the
payment plan.
[10] Later, t he respondent issued a warrant of attachment and attached the
applicant’s immovable property.
[11] Despite not complying with the agreement and owing the respondent large
amounts of money, the applicant brought an urgent application for reconsideration of
the default judgment on 16 October 2015. The respondent opposed the application.
[12] On 16 October 2015, Raulinga J gave judgment that the respondent would
not be allowed to proceed with the sale in execution of the applicant’s immovable
property on condition that the applicant punctually complies with her contractual
obligations as contained in the written agreement.
[13] Subsequently, t he applicant applied for rescission of default judgment granted
on 10 September 2015. On 7 October 2019, Constantindes AJ dismissed the
applicant’s application . Subsequently , leave to appeal was refused. The applicant
made several appeals or applications for rescission of the 2015 judgment, but all the
applications were dismissed.
[14] On 11 February 2022, the applicant serve d a petition to the Constitutional
Court. The leave to appeal was refused with costs.
[15] On 17 May 2023, the Rule 46 A application was granted in favour of the
respondent. The applicant ’s request for leave to appeal Rule 46A judgment was
refused by Janse van Nieuwenhuizen J with costs . On 19 June 2023, the applicant
served the petition to the Supreme Court of Appeal, which was not granted in her
favour .
Applicant’s submissions
[16] The applicant asserts that the court should dismiss all financial claims made
against her by Absa. According to her , she has endured significant prejudice and
hardship for nine years, becoming extremely impoverished due to the respondent’s
actions.
[17] She asserted that in 2009, an agent of the respondent visited her workplace.
During the visit , she completed applications for microloans with the agent, Walter, in
the amounts of R150,000.00 and R50,000.00. She did not physically visit Absa.
Subsequently, he discovered that these loans were categorised as home loans on
her financial statements.
[18] Ms Botha further claims that she had inquired from Walter because she had
never applied for a home loan or ceded her property to A BSA. Applicant paid Absa
account faithfully until 2014 , when she was dismissed from her employment. She
then negotiated with the bank to pay R3500.00 from June 2015 until she was
financially restored.
[19] While the payment plan was in effect, the respondent obtained a default
judgment on 15 September 2015. She only learned about the judgment only when
the sheriff came to attach her private dwelling .
[20] On 16 October 2015 , she applied for an urgent application, which was heard
by Raulinga J, who saved her house. The reafter , the bank started demanding more
money, R4200.00 and later R5500.00.
[21] Ms Botha maintains that she has been applying for rescission of judgment
since then, and the judges and DJP Gauteng Division could not assist her. Her
application for rescission of the judgment and the leave to appeal had b een
dismissed. She further appealed to the Supreme Court of Appeal and the
Constitutional Court , but all her appeals were unsuccessful . The JSC is now said to
be addressing her grievances .
[22] The applicant finally pray s that all financial claims by the respondent be
dismiss ed and a declaratory order be issued to close the above matter.
Respondent submissions
[23] The respondent’s Counsel contends that the applicant did not make out a
case for a declaratory order . He points to an undue delay that is not explained in the
applicant’s f ounding affidavit.
[24] Counsel averred that the applicant had been litigating ill-foundedly against the
respondent since 2015 . In her submission , the applicant makes scurrilous and
unfounded allegations against officers of this court, the respondent, attorneys, and
Judges of the High Court.
[25] Counsel further submit s that orders and judgments granted hereof in litigation
between the parties clearly show that various matters are res judicata , and that the
applicant, without a doubt, is harassing the respondent, which is done to delay the
finalisation of th e matter.
[26] The respondent’ s Counsel argue d that the applicant's opposition to all
applications was based on the fact that her debt was for a personal loan, not a home
loan and that judgment was sought fraudulently .
[27] Counsel submit ted further that there was no longer an appeal pending. The
respondent had brought an application in terms of the Uniform Rules 46 A (9)(a) , only
for the court to establish whether or not the immovable property is to be sold with or
without a reserve price.
[28] Counsel further argue s that t he applicant was aware of the judgment for a
long time. The applicant does not address the very long delay in the founding
affidavit. Therefore, there is no reasonable explanation for the delay.
[29] Counsel submit s that the applicant admitted being indebted to the respondent.
The issue about the payment plan is res judicata , as Raulinga J has already
considered it in the urgent court. The acquiescence in the execution of a judgment
will normally bar an application of rescission. The applicant agreed with the process
followed and, therefore, acquiesced to the judgment and execution. See Schmidlin v
Multi Sound (PTY) Ltd ,1991 (2) SA 151 (C).
[30] Mr Eastes, the applicant ’s Counsel , in supporting his application , referred to
NK and another v BB (30472/21) [2023] ZAGPJHC 1025 , at para 15 , wherein the
court stated as follows:
“states that a vexatious litigant includes launching various proceedings for
improper purposes, which includes harassing and oppressing other persons
by multivarious proceedings brought for purposes other than the assertion of
legitimate rights. ”
[31] Counsel finally submitted that the applicant ’s case was frivolous and improper .
The applicant did so to annoy the respondent. The conduct clearly demonstrates an
abuse of court processes and makes scurrilous allegations against judges and legal
representatives who are officers of this court. In that regard, t he main application
must be dismissed with costs on an attorney and client scale, and the applicant be
declared a vexatious litigant.
Issue s in dispute
[32] The issues for determination are:
a) whether the applicant has demonstrate d an interest in an existing,
future or contingent right or obligation?
(b) whether the applicant qualifies as a vexatious litigant?
Legal principles and discussion
[33] In South African law, a declaratory order is a court's determination of a legal
right or entitlement, resolving a dispute about its existence or nature without
necessarily granting specific relief. It's a flexible remedy often used to clarify legal
issues, particularly when the dispute is purely a question of law or is interlocutory in
nature .
[34] In terms of section 21(1) (c) of the Superior Courts Act 10 of 2013, the High
Court may grant a declaratory order without any consequential relief sought.
Subsection (1) provides that :
“(1) A division has jurisdiction over all persons resid ing or being in,
and in relation to all clauses arising and all offence triable within,
its area of jurisdiction and all other matters of which it may ,
according to law take cognisance and has power -
(a)… …….
(b)……….
( c) in its discretion , and at the instance of any
interested person , to enquire into and determine
any existing , future or contingent right or
obligation , notwithstanding that such person
cannot claim any relief consequential upon the
determination. ”
[35] It is trite that t he requirements for granting a declaratory order are two -fold:
(a) The court must be satisfied that the applicant has demonstrated an
interest in an existing, future or contingent right or obligation ; and
(b) Once a court is so satisfied, it must consider whether or not the order
should be granted. See Cordiant Trading CC v Daimler Chrysler
Financial Services (PTY)Ltd 2005(6) SA 205 (SCA) paras 16 -17.
[36] It is evident from the papers that the applicant owes the respondent. The
default judgment order was granted as far back as 2015, the applicant had been
applying for re scission of the judgment, which was refused several times in different
courts. The matter is now res judicata.
[37] The court is of the view that the applicant has no interest or right in the
matter, as the issue raised is a legal position that is clearly defined by statute.
[38] The court will not grant a declarat ory relief where the issue raised is
hypothetical, abstract, or academic or where the legal position is clearly defined by
statute. See Ex Parte Noriskin 1962 (1) SA 856 D at 857 . In my view, the issues
raised by the respondent have long been decided. Furthermore, the issues raised by
the applicant are res judicata. This principle envisages that parties may not again
litigate on the same matter once it has been decided on the merits. Granting the
declaratory orders or rescission application under these circumstances will offend
the principle of res judicata and also amount to an abuse of process.
[39] The respondent raised a counterclaim that the applicant be declared a
vexatious litigant. In South Africa, a vexatious litigant is defined as someone who
persistently and without reasonable grounds institutes legal proceedings, often with
the intention of harassing or financially burdening the other party.
[40] The Vexatious Proceedings Act 3 of 1956 provides a remedy for such actions,
allowing a court to restrict a person from initiating further legal proceedings without
leave or potentially declare them a vexatious litigant.
[41] In S v Sitebe 1965 (2) SA 908 (N) , Caney J held that the purpose of the
legislation is to put a stop to the persistent and ungrounded institution of legal
proceedings.
[42] The respondent can make an application to the court for an order declaring
the applicant a vexatious litigant. The effect of this is that the applicant can no longer
institute legal action in any court against the applicant without leave of the court. The
court will only grant such leave if it is satisfied that the legal action is not an abuse of
the court process and that there are prima facie grounds for the proceedings.
[43] It is evident from the papers that the applicant has brought at least 12
applications since 2015, which were all dismissed. This includes multiple rescission
attempts , appeals, petitions, and complaints against judges.
[44] In the matter of Christensen NO v Richter 2017 JDR 1637 (GP) , an
application in terms of s2(1)(b) of the Act was brought to declare the first respondent,
a vexatious litigant. The first respondent had launched several applications against
the estate. In deciding whether to declare the first respondent a vexatious litigant the
court held that:
“[the first respondent] is, in my view, a vexatious litigant. He should
therefore be prevented from instituting any further legal proceedings
against the estate and/ or its executors. I am satisfied under the
circumstances that the applicants have made out a case for a final
interdict. They have established a clear right for the granting of a final
interdict. It is clear that the applications launched by the first
respondent are vague and not substantiated and the balance of
convenience favours the granting of the final interdict. The first
respondent cannot continue to litigate as relentlessly as he does,
disregarding court orders. This has to stop. I am inclined to accept that
the applicants have no alternative remedy to stop him from continuing
with his actions.”
[45] In terms of section 34 of the Constitution of the Republic of South Africa,
everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum. However , such rights are limited in
terms of section 36 of the Constitution .
[46] In Beinash and Another v Ernst and Young and Others 1999 (2) SA 116 (CC),
the court considered the constitutionality of s2(1)(b) of the Act. The court confirmed
that:
“the provision does limit a person’s right of access to court. However,
such limitation is reasonable and justifiable. While the right of access to
court is important, other equally important purposes justify the limitation
created by the Act. These purposes include the effective functioning of
the courts, the administration of justice, and the interests of innocent
parties subjected to vexatious litigation. Such purposes are served by
ensuring that the courts are neither swamped by matters without any
merit nor abused in order to victimise other members of society”.
[47] It is evident from the number of applications stated above that the applicant
instituted legal proceedings persistently and without reasonable grounds. The
proceedings were an abuse of court processes, and there were no prima facie
grounds for further proceedings.
Costs
[48] The respondent in this matter has been successful in the relief sought and is
accordingly entitled to costs.
Order
[49] In the result, I make the following order:
1. The applicant’s application for the declaratory order is dismissed with costs
on scale C
2. The respondent counter application is granted , and the applicant,
Catharina Baby Botha, is declared to be a vexatious litigant as contemplated
in terms of the Vexatious Proceedings Act 3 of 1956
3. Applicant shall not institute legal proceedings against the respondent in
any court without leave of the court .
4. This order must be brought to the attention of the Registrar of this court
5. On the counter application, the applicant is ordered to pay costs on
scale C
MOILA AJ
ACTING JUDGE OF THE HIGH COURT
PRETORIA
For the Applicant: In person
For the Respondent: Advocate J Eastes
Instructed by: Delberg Inc.Attorneys
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