SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-134542
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
9 July 2025
In the applications between:
NEDBANK LIMITED Applicant
and
KAYLEEN TIFFANY PITT Respondent
(ID #: 9[…])
CASE NO: 2024-082442
LENNETH ARNOLD SIMONS First Respondent
(ID #: 8[…])
CACHIA ORELIA SIMONS Second Respondent
(ID #: 8[…])
and
2
CASE NO: 2025-028874
LOUISA MASHUPIYANE MASHA Respondent
(ID #: 6[…])
and
CASE NO: 2025-028323
MAOTO JONAS MATHIBENG Respondent
(ID #: 8[…])
and
CASE NO: 2024-067596
MASILO MASESELLE ALDER MAWELA Respondent
(ID #: 8[…])
CASE NO: 2025-028322
MENGE REGINA MAKGATE Respondent
(ID #: 7[…])
CASE NO: 2025-036086
MORNE ELS First Respondent
(ID #: 8[…])
FRANCOIS ELS Second Respondent
(ID #: 8[…])
3
and
CASE NO: 2025-047763
NOBUHLE VAPI First Respondent
(ID #: 8[…])
THE CITY OF JOHANNESBURG Second Respondent
METROPOLITAN MUNICIPALITY
and
CASE NO: 2025-047757
PHUMELELE NTSHIQELA First Respondent
(ID #: 5[…])
THE CITY OF JOHANNESBURG Second Respondent
METROPOLITAN MUNICIPALITY
and
CASE NO: 2024-124432
PICASSO JANGANO Respondent
(ID #: 6[…])
and
CASE NO: 2023-116827
ROOKSANA ARABI Respondent
4
(ID #: 7[…])
and
CASE NO: 2024-130896
TAKUDZWA MUTONGWIZO Respondent
and
CASE NO: 2024-141685
WINKEY MAMAKALO MALUWA Respondent
(ID #: 7[…])
JUDGMENT
SOUTHWOOD AJ:
INTRODUCTION
[1] On 18 June 2025, t wenty-nine of the applicant’s foreclosure applications
served before me as part of this seat’s Big Bang Week i.e. 15 unopposed motion
courts hearing about 70 matters on each day from Tuesday to Thursday in each
court.
[2] In each application, what was sought , inter alia , was leave to execute
against the residential property of the relevant respondent in terms of Rule 46A of
the Uniform Rules of Court. The applications were not opposed and were set down
by the applicant on the unopposed motion roll.
5
[3] Each application exhibited one or more of the following instances of non-
compliance:
[3.1] the papers were not uploaded in terms of paragraph 7 of this Court's
2024 Practice Directive in that the documents either were not uploaded
individually and/or were not uploaded into the correct sections. This
undermined my ability to prepare the applications quickly;
[3.2] the requisite Chapter 10. 17. affidavit, as contemplated by Chapter
10.17 of this Court’s Practice Manual, was not lodged and/or did not contain
references to CaseLines pages and/or was incomplete;
[3.3] the application did not establish that the relevant s1 29 Notices in
terms of the National Credit Act 1 had been sent in accordance with the
agreements with the relevant respondent;
[3.4] the valuer used in every instance did not give a satisfactory basis for
claiming expertise in valuations nor indicate her qualifications and it was
uncertain that she was in fact e mployed by an independent third party as she
alleged.
[4] It is worth noting that various attorneys’ firms represented the applicant and
various counsel appeared to move these applications . The instances of non -
compliance could not be addressed by counsel in these matters.
[5] In some instances, the relevant r espondent attended at court and an order
was made by agreement between the parties . In other instances, given the failure to
serve the applications personally on the relevant respondent, I was requested to
determine belated applications for substituted service, which I did. None of t hese
matters are dealt with in this judgment.
[6] Given the common instances of non- compliance in these applications, I
address these in one judgment.
1 34 of 2005
6
THE CONSTITUTIONAL IMPERATIVES OF SECTION RULE 46A
[7] Rule 46A provides inter alia:
‘(1) This Rule applies whenever an execution creditor seeks to execute
against the residential immovable property of a judgment debtor.
(2) (a) A court considering an application under this rule must –
(i) establish whether the immovable property which the execution
creditor intends to execute against, is the primary residence of the judgment
debtor; and
(ii) consider alternative means by the judgment debtor of satisfying
the judgment debt, other than execution against the judgment debtor ’s primary
residence.
(b) 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.
(c) The registrar shall not issue a writ of execution against the
residential immovable property of any judgment debtor unless a court has
ordered execution against such property.
(3) Every notice of application to declare residential immovable property
executable shall be —
(a) substantially in accordance with Form 2A of Schedule 1;
(b) on notice to the judgment debtor and to any other party who may be
affected by the sale in execution, including the entities referred to in rule
46(5)(a): Provided that the court may order service on any other party it
considers necessary;
(c) supported by affidavit which shall set out the reasons for the
application and the grounds on which it is based; and
(d) served by the sheriff on the judgment debtor personally: Provided
that the court may order service in any other manner.
(4) (a) The applicant shall in the notice of application —
7
(i) state the date on which the application is to be heard;
(ii) inform every respondent cited therein that if the respondent
intends to oppose the application or make submissions to the court, the
respondent shall do so on affidavit within 10 days of service of the application
and appear in court on the date on which the application is to be heard;
(iii) appoint a physical address within 25 kilometres of the office of
the registrar and an electronic mail address, where available, at either of which
addresses the applicant will accept service of all documents in these
proceedings; and
(iv) state the applicant ’s postal or facsimile addresses where
available.
(b) The application shall not be set down for hearing on a date less than
five days after expiry of the period referred to in paragraph (a)(ii).
(5) 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 subrule (8):
Provided that the court may call for any other document which it considers
necessary…
(8) A court considering an application under this rule may —
(a)of its own accord or on the application of any affected party, order 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;
8
(c) on good cause shown, condone —
(i) failure to provide any document referred to in subrule (5); or
(ii) delivery of an affidavit outside the period prescribed in subrule
(6)(d);
(d) order execution against the primary residence of a 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 merit;
(h) make an appropriate order as to costs, including a punitive order
against a party who delays the finalisation of an application under this rule; or
(i) make any other appropriate order.
(9) (a) In an application under this rule, or upon submissions made by a
respondent, the court must consider whether a reserve price is to be set.
(b) In deciding whether to set a reserve price and the amount at which
the reserve is to be set, the court shall take into account—
(i) the market value of the immovable property;
(ii) the amounts owing as rates or levies;
(iii) the amounts owing on registered mortgage bonds;
(iv) any equity which may be realised between the reserve price
and the market value of the property;
(v) reduction of the judgment debtor ’s indebtedness on the
judgment debt and as contemplated in subrule (5)(a) to (e), whether or not
equity may be found in the immovable property, as referred to in subparagraph
(iv);
(vi) whether the immovable property is occupied, the persons
occupying the property and the circumstances of such occupation;
(vii) the likelihood of the reserve price not being realised and the
likelihood of the immovable property not being sold;
(viii) any prejudice which any party may suffer if the reserve price is
not achieved; and
9
(ix) any other factor which in the opinion of the court is necessary
for the protection of the interests of the execution creditor and the judgment
debtor.’
[8] The origins of Rule 46A may be traced to Jaftha. 2
[9] In Jaftha, the Constitutional Court said:
‘s26 must be seen as making that decisive break from the past. It emphasises
the importance of adequate housing and in particular, security of tenure in our
new constitutional democracy. The indignity suffered as a result of evictions
from homes, forced removals, and the relocation to land often wholly
inadequate for housing needs has to be replaced with a system in which the
state must strive to provide access to adequate housing for all and, where that
exists, refrain from permitting people to be removed unless it can be justified.’
3
[10] Jaftha held further that, where leave to execute against immovable property
is concerned, judicial oversight is constitutionally required so that the judicial officer
can engage in a balancing process and consider all the relevant circumstances of a
case to determine whether there is good cause to order execution against the
immovable property concerned.’
4
[11] In Gundwana,
5 the Constitutional Court reaffirmed Jaftha and extended its
purview to cases where the creditor is seeking to execute against a property put up
as security in the form of a mortgage bond. Gundwana found that the declaration of
executability of a debtor’s residence was a judicial, as opposed to merely an
administrative function of the Registrar.
6
2 Jaftha v Schoeman & Others; Van Rooyen v Stoltz & Others 2005 (2) SA 140 (CC)
3 At [29]
4 At [42] – [45], [55]
5 Gundwana v Steko Development and Others 2011 (3) SA 608 (CC)
6 At [49]
10
[12] In Bestbier,7 the Supreme Court of Appeal highlighted the rationale behind
Rule 46A:
‘[8] It is trite that the Constitution of South Africa provides for justiciable socio-
economic rights and this includes the right to have access to adequate housing,
which is enshrined in section 26 of the Constitution . The underlying rationale of
Rule 46A is to impose procedural rules to give effect to that fundamental right.
Rule 46A must therefore be interpreted purposively against the backdrop of s26
of the Constitution, which grants access to housing.
[9] In 2010, the rules were amended to introduce the express requirement in
Rule 46( 1)(a)(ii) that residential property may only be sold in execution, if so
authorised by a court having considered all the relevant factors. Rule 46A was
added to the Rules on 22 December 2017 in response to divergent approaches
adopted by the South African courts regarding the nature of the inquiry and
factors to be considered when exercising judicial oversight over orders of
execution against residential immovable property.’
[13] Bestbier went on to state the following:
‘[20] The aim of Rule 46A is to assist the court in considering whether the s26
rights of the j udgment debtor would be violated is if his /her house is sold in
execution. Rule 46A contains procedural prescripts , not substantive law. The
requirement of judicial oversight in s26 of the Constitution must be viewed in
light of South Africa ’s history of forced removals and racist evictions during
apartheid, and the need to protect security of tenure of all South Africans.’
[14] In this regard, Bestbier held:
‘[22] Rule 46A requires judicial oversight and consideration by a court of
various factors when a creditor seeks to execute against the residential
immovable property of a judgment debtor . T here is considerable force in Du
Plessis & Penhold ’s argument in their discuss ion of J aftha and Saunderson,
that the only way to determine whether the right to adequate housing has been
that the only way to determine whether the right to adequate housing has been
compromised is to require judicial oversight in all cases of execution against
7 Bestbier & Others NNO v Nedbank Limited 2023 (4) SA 25 (SCA)
11
the immovable property on a case by case basis. The sole purpose of judicial
oversight in all cases of execution against movable property is to ensure that
the orders being granted did not violate s26(1) of the Constitution, and that the
judgment debtor is not likely to be left homeless as a result of the execution.’
CHAPTER 10.17. AFFIDAVIT
[15] Chapter 10. 17. of the Practice Manual of the Johannesburg seat of this
Division sets out a number of requirements which must be complied with in
foreclosure matters.
[16] In ABSA Bank
8, the Full Court described these requirements as follows:
‘[7] The Practice Directive on foreclosures in this Division was developed to
give substance to its judicial oversight role in foreclosure matters as intended
by the Constitutional Court.’
[17] One of these requirements is that in every matter where a judgment is
sought for execution against immovable property, which might be the defendant's
primary residence or home, an affidavit is required. A proforma affidavit dealing with
the requirements forms part of the Practice Manual.
[18] The proforma affidavit indicates that the applicant’s attorney must confirm
inter alia as follows:
‘I have inspected the original documents pertaining to the matter as well as the
security documents on which the matter is based and the copies attached to
the summons or application, are true copies of the originals. Alternatively; An
affidavit from the judgment creditor has been filed setting out the whereabouts
of the original documents, which affidavit also sets out the grounds of the
deponent’s belief that the documents attached are indeed copies of the
originals as appears at page ____ para ____. (Delete paragraph if 2.1 is
applicable).’
8 ABSA Bank Limited v Lekuku 2014 JDR 2137 (GP)
12
(‘the original documents requirement’)
CASE NUMBERS 2024-134542, 2025-047763, 2025-047757
[19] In case number 2024- 134542, the Chapter 10.17. affidavit dealing with the
original documents requirement states:
‘An affidavit from the judgment creditor has been filed setting out the
whereabouts of the original documents, which affidavit also sets out the
grounds of the deponent’s belief that documents attached are indeed copies of
the originals as appears at page 005- 8, paragraph 3 of the Applicant/Plaintiff’s
affidavit.’
[20] The reference is to a paragraph in the applicant’s founding affidavit in
support of its Rule 31 and 46A application. The deponent is employed by the
applicant as a Manager Home Loans Legal Recoveries.
[21] The relevant paragraph reads as follows:
‘I positively confirm that the attached security documents are copies of the
originals and that the originals are stored in a safe storage facility.’
[22] The deponent does not set out the grounds for her belief that the documents
attached are copies of the originals.
[23] In case number s 2025-047763 and 2025-047757, the applicant’s attorney
states:
‘I have inspected the original documents pertaining to the case but have not
been privy to the original security documents on which the cause of action is
founded. I have been instructed by my client (the Applicant), which instructions
I accept, that the copies of the security documents attached to the application,
are true copies of the originals.’
[24] All that the applicant’s deponent states in the founding affidavit is:
‘This Court is supplied with true copies of all the documents to which I refer.’
13
[25] These allegations do not constitute compliance with Chapter 10.17 in regard
to the original documents requirement.
VALUATION
[26] Rule 46A(9)(b) provides that in setting a reserve price, the court must take
into account the market value of the immovable property.
[27] In Mokebe,
9 the Full Court of this Division found that in relation to the set ting
of a reserve price, that it was incumbent upon the applicant , as part of its obligation
under the R ule, ‘to place all relevant circumstances before the court, including a
proper valuation of the property under oath.’ 10
[28] In Mzizi,
11 this Court held that establishing the true market value of the
property is essential to the court's determination of an application for foreclosure and
would have to be the starting point from which the court's evaluation proceeds in
each case.
12
[29] The Court went on to state that in setting a reserve price, the Court
considers a reserve price which ensures the chance of a sale and a reserve price
which does justice to the rights of the debtor to obtain a fair value for its security.
13
[30] In SB Guarantee,
14 this Court held as follows:
‘[13] Whilst it is , rightly, an expectation of a delinquent debtor that he should
muster his resources to state his case, he should also be allowed to accept the
veracity of the case put up by the applicant. If the debtor has the comfort of an
9 ABSA Bank Limited v Mokebe and related cases 2018 (6) SA 492 (GJ)
10 At [57]
11 Nedbank Limited V Mzizi and related cases 2021 (4) SA 297 (GJ)
12 At [12]
13 At [14]
14 SB Guarantee Co (Pty) Ltd v De Sousa and Two Similar cases 2024 (6) SA 625 (GJ)
14
independent valuation by an expert whose credentials are acceptable, he is
able to rely on such valuation in order to administer his affairs, including his
approach to the application to declare. It is , after all, unlikely that a distressed
debtor would be in a position to challenge a proper expert valuation.
[14] A court should be placed in a position where it can feel similarly comforted
by a reliable valuation.
[15] The evidence under oath of a person who is shown to be expertly
qualified to determine value is a commercial forensic standard. In application
proceedings expert valuations are routinely presented as attachments to the
application in the form of an affidavit attested to by a valuer whose
independence and expertise are disclosed.
[16] There appears, without more, in any given case, to be no reason why this
standard should be departed from in the normal course in applications for
foreclosure. P rovided the sworn valuation is reliable, it serves a chastening
purpose: the defendant would be entitled to rely on the valuation and a court
would, likewise, be confident in its assessment of the application.’
[31] The Court held, further, that:
[31.1] The Property Valuers Profession Act, 47 of 2000 (the Valuers Act)
provides for the establishment of the South African Council for the Property
Valuers Profession (the Council) to oversee and administer a profession
which is recognised, controlled and administered under the Valuers Act and
known as the Property Valuers Profession;
15
[31.2] the Valuers Act, the regulations and the Code of Conduct form a
legislative scheme which provides for educational norms and standards for
the Property Valuers Profession and for a national registration of certified
valuators and candidate valuers. The Valuers Act closely regulates the
activities and conduct of those involved in the valuation of property’;
16
[31.3] the Valuers Act also empowers the C ouncil to register appropriately
16
[31.3] the Valuers Act also empowers the C ouncil to register appropriately
qualified persons on a national database of p rofessional valuers upon their
15 At [67]
16 At [68]-[69]
15
application. Such registration entails the process of assessment of
competency of applicants for registration. It requires that the Council be
satisfied that the applicant meets certain criteria as to age, residency, the
passing of certain examinations and the acquisition of practical experience in
the field;
17
[31.4] all registered persons must comply with the C ode of Conduct drawn
up and imposed under the Valuers Act, and failure to do so constitutes
improper conduct;
18
[31.5] the scheme facilitates the involvement of candidate valuers in the
valuation process under the supervision of registered professionals . A
candidate valuer is precluded from taking instructions other than from a
professional valuer. The valuation process is intended to benefit the candidate
on the basis that he or she is allowed to gain experience. A candidate cannot
herself produce a sworn valuation under the scheme. The system of
candidacy and mentorship is important. It serves in the transfer of professional
skills where more experienced valuers mentor and teach those with less
experience. The professionals are expected to adhere to the standards
espoused under the legislative scheme and convey , by example and training,
the skills necessary to facilitate the coming into being of a new generation of
professional valuers.
19
[32] In short , held the Court, ‘ the scheme creates an accountable profession
which is statutorily regulated and committed to achieving professional standards so
that the valuations of these accepted experts can be relied on’.
20
[33] The Court concluded as follows:
17 At [70]-[71]
18 At [72]
19 At [74] – [76]
20 At [77]
16
‘If an expert report is a collaboration between two people, o nly one of whom
has the necessary expertise, qualification, or credentials , th is should be
expressly brought to the court's attention.
All parties involved in the valuation process, m ust set out clearly, on affidavit
under oath, the source of their knowledge of the facts related to their
involvement in the valuation.
The valuations should , in the absence of other evidence which may satisfy a
court as to expertise of the person who has determined that value, be those of
accredited professional valuers registered in terms of the Valuers Act.
The valuations must be confirmed under oath, taken in terms of Regulation
3(1) of the Oaths Act.’21
[34] In addition, s ection 19(1) of the Valuers Act provides for categories of
registration, namely a professional valuer, a professional associate valuer , a
candidate valuer, or specified categories as prescribed by the Council. Section 19(2)
of the Valuers Act provides that a person may not practice in any of the categories
contemplated by subsection (1) unless he or she is registered in that category.
[35] In all these matters save for case number 2024- 124432 where no valuation
affidavit forms part of the application, a valuation affidavit has been deposed to by
Ronel Janse van Rensburg/Ronel van Rensburg.
22. She states that she is an adult
female property assessor employed as a valuer at or that she is a valuer for
Independent Valuers SA or Independent Valuers SA CC, with registered business
address at 3 Impala Court, Palm Avenue, Kempton Park or at 6[…] D[…] Road,
G[…] M[…]: […] I[…] Court, P[…] Avenue, K[…] P[…].
21 At [82] – [85]
22 I have assumed these are the same people as the affidavit deposed to by Ronel van
Rensburg is in virtually the same terms as the affidavits deposed to by Ronel Janse van
Rensburg. In addition, affidavits have been uploaded in matters where Ronel Janse van
Rensburg. In addition, affidavits have been uploaded in matters where Ronel Janse van
Rensburg makes the sworn valuation and where Ronel van Rensburg makes the
valuation, by the sole member of Independent Valuers CC indicating that Ronel Janse
van Rensburg earns an income from Independent Valuers on a commission basis only
as a freelance valuer and gets paid per successful task completed. All the valuation
reports indicate the valuer as R van Rensburg with similar registration numbers.
17
[36] She contends that she has expertise in property valuations as she has been
valuing properties for a period exceeding 20 years. She does not state that she is an
accredited professional valuer registered in terms of the Valuers Act.
[37] However, attached to her affidavit in case numbers 2024-134542, 2024-
082422 and 2023-11682723 is a registration certificate issued by the South African
Council for the Property Valuers Profession which certifies that Ronel Janse van
Rensburg is registered as a Professional Associated Valuer in terms of s22(a) of the
Property Valuers Profession Act, 2000, subject to the following conditions:
‘PERMITTED TO PERFORMING WORK IN PROPERTY VALUATION FOR
PURPOSES OF MUNICIPAL RATING FOR A LOCAL GOVERNMENT AS
DEFINED IN THE LOCAL GOVERNMENT: MUNICIPAL PROPERTY RATES
ACT, 2004 (ACT NO. 6 OF 2004).
WORK IN PROPERTY VALUATION OTHER THAN THAT REFERRED TO IN
PARAGRAPH 1 MUST BE PERFORMED UNDER SUPERVISION AND
CONTROL OF A PROFESSIONAL PERMITTED TO PERFORMING ALL
TYPES AND PURPOSES OF PROPERTY VALUATION (SUPERVISOR).
THE WORK REFERRED TO IN PARAGRAPH 2 MUST BE SIGNED BY THE
REGISTERED PERSON CONCERNED AND MUST BE COUNTERSIGNED
BY THE SUPERVISOR TO CERTIFY THAT THE WORK HAS BEEN
PERFORMED UNDER HIS OR HER SUPERVISION BEFORE SUBMISSION
THEREOF TO THE CLIENT. A COMPLETE RECORD OF THE DETAILS OF
SUCH OTHER WORK IN PROPERTY VALUATION MUST BE KEPT.’
(My emphasis)
[38] The certificate indicates the registration number as 7889.
[39] In her respective affidavits, Ms van Janse van Rensburg indicates that she
conducted a valuation of the property on a particular date. Save for case number s
2025-028322 and 2024-141685 where no report is attached to her affidavit (albeit
that one is attached to the applicant’s deponent’s affidavit which is not referred to by
23 In case number 2025-028323, the certificate was simply uploaded.
18
Ms Janse van Rensburg), Ms Janse van Rensburg’s affidavits also refer to and
attach a valuation report and confirm the contents thereof.
[40] The respective reports which are headed ‘Independent Valuer’ conclude with
one of the following statements:
‘I DECLARE THAT I HAVE INSPECTED, ASSESSED, AND IDENTIFIED THE
PROPERTY AND HAVE NO PECUNIARY INTEREST S IN THE PROPERTY. I
HAVE ASSESSED THE PROPERTY BASED ON THE RELEVANT MARKET
INDICATORS AND CONSIDER THE ABOVE VALUATION TO BE A TRUE
REFLECTION AND FAIR ASSESSMENT OF THE SUBJECT PROPERTY’ S
CURRENT MARKET VALUE, WHERE ACCESS TO THE INTERIOR OF THE
PROPERTY WAS GRANTED. WHERE INTERNAL ACCESS WAS NOT
GRANTED, THE VALUATION WILL REFLECT A BEST ESTIMATE AS AT
THE DATE OF THE VALUATION’
or
‘I/WE DECLARE THAT I/WE HAVE INSPECTED AND IDENTIFIED THE
PROPERTY HAVE NO PECUNIARY INTERESTS IN THE GRANTING OF
THIS LOAN’.
[41] The reports are dated and indicate that the valuer is R van Rensburg with
the number ‘7889/6’ or ‘7889’ or ‘7889 6’ and a signature, which I assume to be that
of Ms Janse Van Rensburg.
[42] In case numbers 2024-067596, 2025-028322, 2025-036086, 2025-047763
24,
the report indicates an additional valuer, Barend Spies , with the number 8541/0 and
a signature, which I assume to be that of Mr Spies.
[43] In case numbers 2024- 067596 and 2025- 036086, Mr Spies has deposed to
an affidavit. He states that he is an adult property assessor employed at
Independent Valuers. He states that he is an expert because he has been doing
property valuations for a number of years. He does not indicate that he is a
24 Despite the fact that the declaration refers to the first person singular
19
professional property valuer registered with the Council. He does not state that he
conducted the valuation with Ms Janse van Rensburg nor that he supervised and
controlled her valuation.
[44] In case number 2025- 047757, the report indicates an additional valuer
whose name is illegible. No affidavit is deposed to by the second valuer.
[45] In case number 2023- 116827, the report s indicate an additional valuer by
the name of L Janse van Rensburg with number 8572/4. No affidavit is deposed to
by L Janse van Rensburg.
[46] None of the affidavits nor the reports indicate that Ms Janse van Rensburg’s
valuation was performed under the supervision and control of a person who is
permitted to do all types of property valuation.
[47] Simply on this basis, I am not satisfied that the valuation is valid and reliable.
[48] Furthermore, other difficulties are associated with this valuation.
[49] The respective reports contains one of the following statements:
‘No phone answer. No access gained, no internal inspection done. No
comments as to the quality and condition of the internal finishes can be made
as no access was possible. Room count and size are estimated and may differ
from the actual. It is assumed that the unit is not vandalised and in average
condition. The following maintenance is required and defects noted: No
comments due to no access’
or
‘No access gained to subject property – no internal inspection was done. No
phone answer. The property appears to be in need of general maintenance
and repair. No comments as to the quality and condition of the internal finishes
can be made as no access was possible. Room count and size are estimated
20
and may differ from the actual. The following maintenance is required and
defects noticed: No comment due to no access’
or
‘No phone answer. No access gained, no internal inspection done. It is
assumed that the property is not vandalised. No comments as to the quality
and condition of the internal finishes can be made as no access was possible.
Room count and size are estimated and may differ from the actual. The
following maintenance is required and defects noticed: No comment due to no
access’
or
‘PLEASE NOTE: EXTERNAL INSPECTION DONE AS PER AGREED
PROCESS. OWNER NOT AWARE OF VALUATION AND REFUSED
ACCESS’.
[50] The reports do not indicate if Ms Janse van Rensburg or, where relevant, Mr
Spies, L Janse van Rensburg or the unknown second valuer , were given the
respondent’s phone number nor do they give particulars of her or his attempts to
gain access to the property.
[51] Accordingly, save for case number s 2024-067596 and 2025-047763, a
public note on CaseLines requested that an affidavit be filed deposed to by the
valuer confirming that she attended at the property and indicating what attempts she
made to obtain access to the property.
[52] No affidavit in this regard was lodged before the hearing of these matters.
[53] In addition, in case numbers 2024-067596, 2024-124432 and 2024-130896,
the applicant’s deponent, referring to a valuation report which looks exactly like the
21
reports referred to above, described the report as ‘an assessment report complied
internally by the Applicant’ (sic).
[54] The report itself appears to bear an email address and a telephone number
but not an address.
[55] Accordingly, I requested, in a public note on CaseLines, prior to the hearing,
that the applicant was to file an affidavit deposed to by the person in charge at
Independent Valuers indicating its corporate registration details with documentary
proof from the CIPC (not windeed) and confirming that Ronel Janse van Rensburg
and, where relevant, Barend Spies, were its employees at the time when they made
the report referred to in the relevant matter, with supporting employees ' tax
documentation and payslips.
[56] In case number s 2024-082442, 2025-047763, 2025-047757 and 2023-
116827, an affidavit was uploaded onto CaseLines deposed to by Ms Ronel
Nicolene Jacobs who indicated that she was the sole member of Independent
Valuers CC with registration number 2009/226395/23 situated at ’ 6[…] D[…] Road,
G[…] M[…]: […] I[…] Court, P […] Avenue, K […] P[…]’ which appears to be two
different addresses.
[57] Ms Jacobs did not confirm that she employed Ms Janse van Rensburg nor
Mr Spies. Instead, she alleged that Ms Janse van Rensburg ‘ earns an income from
Independent Valuers on a commission basis only as a freelance valuer and gets paid
per successful task completed. Payments take place sporadically alternatively are
bulked and paid in a lump sum.’
[58] Ms Jacob’s affidavit which contradicts Ms Janse van Rensburg’s affidavits
results in m ore questions than answers and renders Ms Janse van Rensburg’s
affidavits of doubtful veracity.
22
[59] For all the reasons indicated above, I am not satisfied that the applicant has
complied with the requirements indicated in SB Guarantee or that the sworn
valuations in these matters are credible independent valuations.
[60] Given that Ms Janse van Rensburg appears to have conducted valuations in
conflict with the terms of her registration with the South African Council for the
Property Valuers Profession, she was invited to make submissions by Monday, 30
June 2025, as to why the judgment should not be referred to the Council.
[61] Ms Janse van Rensburg submitted an affidavit in which she indicated the
following:
[61.1] her certificate incorrectly indicates that she is only permitted to
perform valuations for municipal rating on her own but must otherwise be
supervised and controlled by a profession al permitted to perform all types of
property valuation;
[61.2] in June 2022, she had requested the Council to extend her
registration to mortgage security valuations for residential dwellings and light
commercial properties;
[61.3] also in June 2022, the Council acknowledged receipt of the request
and indicated that they would inform her when the registration documents
were ready for collection;
[61.4] she has not yet received her amended registration certificate;
[61.5] on 30 June 2025, she received a letter from the Council confirming
that she is registered as a professional associated valuer from 7 June 2022
and is permitted to performing work in property valuations for mortgage bonds
and security for all types of valuation.
[62] The letter referred to indicates that Ms Janse van Rensburg is registered as
a Professional Associated Valuer from 7 June 2022 and is permitted to work in
property valuation for Mortgage Bonds & Security for all types of valuation but that
the registration is subject to various conditions which are indicated in inter alia the
registration certificate.
23
[63] At face value, Ms Janse van Rensburg’s registration does not appear to
cover the valuations in these applications which is for the purposes of declaring
mortgaged property executable in terms of Rule 46A. Furthermore, t he amended
certificate has not been disclosed.
[64] In the premises, there is still uncertainty as to whether Ms Janse van
Rensburg was permitted to perform the valuations in these matters.
[65] The South African Council for the Property Valuers Profession is best able to
assess this given that it is likely in possession of more relevant evidence than this
Court.
[66] Accordingly, this judgment will be forwarded to the Council to investigate Ms
Janse van Rensburg’s conduct.
PAYMENT HISTORY
[67] In case number s 2025-028874, 2024-067596, 2025-036086, 2023-116827
and 2024-130896, the document indicating the respondent’s payment history
indicates a balance which does always change as a consequence of a payment or
debit. This raises a concern that the amount certified as being in arrears is not
credible.
[68] Applicant’s counsel could not address my concern.
[69] It is advisable that the applicant lodge an affidavit to explain why the balance
does not change.
S 129 NOTICE NOT SERVED IN TERMS OF THE AGREEMENT
[70] In case number 2024-134542, the s 129 notice was sent via registered email
to ‘k[…]’.
24
[71] When questioned on what basis the court should accept that this was the
respondent’s email address, Counsel indicated that the correct address was k[ …]
and that the letter had not been sent to the correct address.
[72] In addition, t he relevant agreements make provision for notice to be
delivered at chosen addresses or to be sent by registered post to the respondent’s
last known address.
[73] When questioned as to whether the S129 notice has been sent in
accordance with the agreements , Counsel’s response was that this had been raised
with the applicant and its attorneys and the use of this process has been stopped. I
understood this submission to be a concession that this manner of notifying the
respondent was not in terms of the agreements.
SERVICE OF THE APPLICATION
[74] In case number 2024- 067596, an order was granted on 11 March 2025
directing that service of the application was to be effected by affixing at the
mortgaged property, sending the application via email and via sms or WhatsApp.
[75] A notice of motion dated 13 June 2024 with a hearing date of 18 September
2024 appears as the first document in the application. Further in the application
bundle, a notice of motion dated 13 June 2024, indicates a hearing date of 18 June
2025.
[76] It is unclear which notice of motion was served. The sheriff’s return does
contain a hearing date , something which the returns generally state if the document
served indicates a hearing date.
[77] Although the messages in the email and WhatsApp indicated the hearing
date, I am not satisfied that the application served by affixing at the mortgaged
25
property indicated the date of the hearing with the result that I am not satisfied that
there has been compliance with the order for substituted service.
[78] In case number s 2025-047763 and 2024-141685, there has not been
personal service of the application on the respondent.
[79] In case number 2024- 124432, an order for substituted service was granted
on 4 March 2025. The order directs that notice of the proceedings is to be served by
affixing at the mortgaged property, service via email and service by SMS or
WhatsApp.
[80] Proof of service by affixing at the mortgaged property is established by the
relevant sheriff’s return. Service via email and SMS/WhatsApp is not established by
admissible evidence. Instead, email and phone printouts have simply been
uploaded as stand-alone documents in the record.
[81] In the circumstances, the applicant has failed to establish that the application
was served in terms of the order permitting substituted service.
CONDUCT OF THE LEGAL PRACTITIONERS UNDER CASE NO. 2024-134542
[82] The Code of Conduct for all Legal Practitioners, Candidate Legal
Practitioners and Juristic Entities provides inter alia:
[82.1] at paragraph 3.1, ‘that legal practitioners shall maintain the highest
standards of honesty and integrity’;
[82.2] at paragraph 3.2, ‘ that legal practitioners shall treat the interests of
their clients as paramount, provided that their conduct shall be subject always
to their duty to the court; the interests of justice; observance of the law; and
the maintenance of the ethical standards prescribed by this code, and any
ethical standards generally recognised by the profession’;
[82.3] at paragraph 18.3, ‘that an attorney shall exercise proper control and
supervision over his or her staff and offices’;
26
[82.4] at paragraph 57.1, ‘that a legal practitioner shall take all reasonable
steps to avoid, directly or indirectly, misleading a court … on any matter of fact
or question of law. In particular, a legal practitioner shall not mislead a court
… in respect of what is in papers before the court … including any transcript
of evidence’.
[83] In Van der Berg,
25 the Supreme Court of Appeal held:
‘But it is a different matter altogether if an advocate knows (as a fact and not
merely as a matter of belief) that evidence is false or misleading. For the role of
advocacy in furthering the proper administration of justice also gives rise to
duties that are owed to the court, primarily a duty upon an advocate not to
deceive or mislead a court himself.’ 26
[84] In Ulde,
27 this court stated:
‘In my view it is the obligation of counsel to never mislead a court. Care must
be taken that this does not occur through ignorance or negligence. It is self -
evident that to mislead a court deliberately is a very serious breach of that
obligation. A judge is entitled to take counsel at their word.’ 28
[85] It is a material fact in foreclosure applications whether or not the mortgaged
property is the respondent’s home or primary residence.
[86] The applicant’s deponent alleged that the mortgaged property is occupied by
the respondent and is utilised as her primary residence.
[87] I n his practice n ote, under a section headed ‘Primary Residence’, the
applicant’s Counsel had indicated ‘no’. I made a public note on CaseLines querying
the basis for this submission. Counsel’s response in a note on CaseLines was:
25 Van der Berg v General Council of the Bar [2007] 2 All SA 499 (SCA)
26 At [16]
27 Ulde v Minister of Home Affairs and Another 2008 (6) SA 483 (W)
28 At [37]
27
‘the Respondent was traced to the address where personal service was
affected (granted the Trace Report is not attached to the papers before C ourt.
We will attend to upload same with a supplementary affidavit’ (sic).
[88] Further in his practice note, Counsel submitted that:
‘The Notice of Set Down and Application for Default Judgment for 18 JUNE
2025 was served on the Respondent/Defendant personally at 4[ …] E[…] C[…],
E[…], 1830, GAUTENG, as appears on the return of service and which address
is the traced/home address of the Respondent/Defendant. See under Section
004 of Caselines.’
[89] In response to a query raised in my public note on CaseLines as to the basis
for the submission that the address where service took place is the traced/home
address of the respondent, Counsel’s replying note stated:
‘As mentioned above, and admitted, the trace report was not submitted as part
of the papers, but the fact remains that personal service was obtained as is
required in terms of Rule 46A.’
[90] In a supplementary affidavit, deposed to on 6 June 2025, and uploaded onto
CaseLines on the same date, and thus not served on the respondent, and made for
the purpose of updating the C ourt on the various arrears pertaining to the
respondent, the applicant's attorney states:
‘It is evident from the Sheriff’ s return of service that the Application for Default
Judgment was served on the Respondent/Defendant, personally, at the
traced/home address of the Respondent/Defendant.’
[91] The relevant sheriff's return indicates that on 21 May 2025, the sheriff served
a ‘ Notice of Set Down Application for Default Judgment and an order in terms of
Rules 46A’ upon the respondent personally at 4[…] E[…] C[…], E[…].
[92] Aside from the fact that it is unclear exactly what was served on the
respondent, what is clear is that there is no reference in the sheriff's return that this
address is a traced/home address.
28
[93] Given that the attorney's allegation was clearly incorrect, I indicated in a
public note on CaseL ines that this constituted a misrepresentation. In response to
my note, applicant’s Counsel in a replying note on CaseLines responded as follows:
‘The actual return of service will not indicate that service was a traced address -
the Sheriff only receives instruction as to the address where service is to be
effected -not how it was obtained (again, I have to note that the trace report in
not included in the papers.) However, personal service was effected as is
required in terms of Rule 46A. The supplementary affidvit at 3.1 does indicate
that it is a traced/home address. There is no misrepresentation by the attorney
in this regard.’ (sic)
[94] There is no evidence in the record that the address at which personal
service occurred is the home of the respondent.
[95] At face value, the submissions in C ounsel’s practice note constitute
misrepresentations to the court.
[96] Furthermore, the attorney’s incorrect allegation as to what appeared in the
sheriff’s return also constitutes, at face value, a misrepresentation to the court.
[97] Given that it was not specifically raised with Counsel at the hearing that I
was considering referring both Counsel and his instructing attorney to their relevant
governing bodies, both applicant’s Counsel and attorney were invited, after the
hearing, to provide submissions by close of business on 27 June 2025 as to why this
judgment should not be referred to the Legal Practice Council and the Pretoria
Society of Advocates for further investigation.
[98] Given the response to the invitation, I quote the invitation in full:
‘The Judge is considering referring (the attorney, … and counsel …) to the LPC
and, in the case of [counsel] also to the Pretoria Society of Advocates, because
29
of the perceived failure to uphold their duty to the court and not to mislead the
court regarding the facts and the law.
In paragraph 3.1 (006- 2) of a supplementary affidavit deposed to by [the
applicant’s attorney] on 6 June 2025 [he] alleges that “ It is evident from the
Sheriff’s return of service that the Application for Default Judgment was served
on the Respondent/Defendant personally, at the traced/home address of the
Respondent/Defendant”. The sheriff’s return (004-3) does not state this.
In his practice note, [applicant’s counsel] indicates at 007- 2/4 that the relevant
property is not the primary residence of the respondent. At 007- 3/6.1,
[applicant’s counsel] contends that the address at which service took place is
the traced/home address of the respondent. There is no admissible evidence in
the record which establishes this address as either a traced address or a home
address.
Both submissions are at odds with the allegation by the applicant that the
mortgaged property is occupied by the respondent and is utilised as her
primary residence (005-11/7.1).
Given the authorities e.g FirstRand Bank Ltd v Folscher and Another, and
Similar Matters 2011 (4) SA 314 (GNP) at [28], there were no facts on the
record from which it could be established that the address at which personal
service was effected was the respondent’s home.
In a public note on CaseLines, the Court questioned the basis for these
allegations and submissions. It was further queried why the attorney should not
be reported to the LPC.
[Applicant’s counsel] replied in a public note on CaseLines as follows:
“1. The submissiom in this regard is that the Respodnent was traced to the
address where personal service was effected (granted, the Trace Report is not
attached to the papers before Court. We will attend to upload same with a
supplementary affidavit.)
2. The actual return of service will not indicate that service was a traced
2. The actual return of service will not indicate that service was a traced
address - the Sheriff only receives intsruction as to the address where service
is to be effected - not how it was obtained (again, I have to note that the trace
report in not included in the papers.) However, personal service was effected
30
as is required in terms of Rule 16A. The supplementary affidavit at 3.1 does
indicate that it is a traced/home address. There is no misrepresentation by the
attorney in this regard.
5. As mentioned above, and admitted, the trace report was not
submitted as part of the papers, but the fact remains that personal service was
obtained as is required in terms of Rule 46A.” (sic)
What is apparent from this response is that the attorney ’s allegation was not
correct and that counsel ’s submissions were not based on facts in the record
read with relevant law.
[The applicant’s attorney and counsel] are invited to furnish submissions on or
before CoB on Friday 27 June 2025 indicating why the judgment should not be
referred to the LPC and the Pretoria Society of Advocates. Such submissions
should be uploaded onto CaseLines.”’ (sic)
[99] The applicant’s attorney furnished an affidavit which submitted that Rule 4
does not provide what should be in a sheriff’s return. Thus, he contends, one could
draw the conclusion that it was a bona fide omission by the sheriff not to state that
service took place at the trace/home address of the respondent. He also refers to
the purpose of service.
[100] Not only does the conclusion not follow from the premise (there being no
admissible evidence that the sheriff would have a basis for stating that the address
was the traced/home address of the respondent), it does not explain why he
misstated what was in the sheriff’s return.
[101] The applicant’s attorney speculates that the allegation by the applicant’s
deponent regarding the residence of the respondent was made at the time when the
summons was served. However, service at the respondent’s domicilium citandi and
at the hypothecated address could only be effected by affixing.
[102] Accordingly, the applicant’s attorney engaged a tracer and the sheriff was
instructed to serve at the address obtained by the tracer. It was an oversight not to
31
attach the tracing report to his supplementary affidavit. A tracing report is attached to
this affidavit. This is hearsay evidence and thus, inadmissible.
[103] None of these responses indicate why the attorney misstated what was in
the sheriff’s return.
[104] Given both the misstatement and the failure to appreciate his conduct, this
judgment will be referred to the Legal Practice Council to investigate this attorney’s
conduct.
[105] Counsel also furnished submissions in response to the invitation.
[106] In response to my finding that there is no admissible evidence in the record
which establishes that the address at which service took place is either a traced
address or a home address, Counsel refers to the tracing report which should have
been uploaded onto CaseLines. He th en submits that his instructions are that a
tracer was appointed who traced the respondent to the traced address where
personal service was effected (her parental home as later allegedly conveyed to the
attorney and Counsel at court). He stated further that the respondent had informed
him and his attorney that she now resides with her parents at the traced address as
the electricity and water to her apartment have been terminated. The question of
primary residency could have been addressed in Court, on the record.
[107] Counsel contends further that there is no requirement in Rule 4 to state that
personal service was obtained at the person’s primary residence or home. He then
indicated that a return of service will not indicate that service was obtained at a
traced address.
[108] In response to the finding that the attorney’s allegation was not correct and
that counsel’s submissions were not based on facts in the record read with the
relevant law, Counsel submitted that he did not see the relevance of this. He goes
32
on to state that he and the attorney ‘ had knowledge and have seen the trace report
and trace address and from there our submissions in this regard’.
[109] He concludes that he did not intend to mislead the court and that he has an
unblemished record.
[110] Essentially, Counsel’s justification is that his submissions were based on his
instructions and his sight of a trace report which was not properly before court.
[111] Counsel fails to appreciate that he cannot make factual submissions
(whether in his practice note or otherwise) if such facts are not to be found in the
record. Neither his instructions n or his personal knowledge are acceptable sources
for these.
[112] Furthermore, Counsel fails to appreciate that whether or not a particular
residence is someone’s primary residence is a conclusion to be drawn from other
facts.
[113] In Folscher,
29 the full court of this Division held:
‘A “primary residence”
[28.1] A person’s primary residence is the dwelling where they usually live,
typically a house or an apartment. A person can only have one primary
residence at any given time, though they may share the residence with other
people. A primary residence is considered as a legal residence for the purpose
of income tax and/or acquiring a mortgage.’ (Wikipedia Dictionary.)
[28.2] A ‘home’ means ‘the place where one lives; the fixed residence of a
family or household; a dwelling house’ (Concise Oxford Dictionary). ‘ A place
where one lives; a residence ’ (Free Dictionary by Fairfax); ‘The physical
structure within which one lives, such as a house or apartment’.
[28.3] ‘ Housing’ means ‘shelter’ or ‘lodging’ (Concise Oxford Dictionary).
29 FirstRand Bank Ltd v Folscher and Another, and Similar Matters 2011 (4) SA 314 (GNP)
33
[29] A ‘primary residence ’ is, in the light of the above, the same concept as
‘the home of a person’ as formulated in the Gundwana judgment. There is
therefore no conflict between the amended rule and this decision.
[30] The judicial oversight that must be exercised is therefore limited to those
instances where the execution order relates to the debtor ’s principal or —
usually — the only dwelling the judgment debtor owns. Execution against a
holiday home or a second house that is not usually occupied by the debtor
does not trigger the application of the rule.’ (my emphasis)
[114] The respondent’s alleged statement to Counsel that she resides at her
‘parental home’ because the electricity and water at the mortgaged property have
been cut off suggests that this residence might be a temporary one and not fixed. I
make no finding in this regard but merely wish to illustrate the point.
[115] Given that the submissions in Counsel’ s practice note were not based on
evidence in the record nor a conclusion which could properly be drawn and that
Counsel fails to appreciate his duty in this regard, the judgment will be referred to the
Legal Practice Council and the Pretoria Society of Advocates for further
investigation.
CONDUCT OF THE LEGAL PRACTITIONERS UNDER CASE NO. 2025-028322
[116] The respondent in this matter is Menge Regina Makgate.
[117] Prior to the hearing date, I made a public note on CaseLines indicating that
the agreements relied upon are not agreements concluded with the respondent. The
Certificate of Balance refers to the same person as in the agreements uploaded, one
WM Maluwa.
[118] On the morning of the hearing, the relevant annexures were removed from
CaseLines and replaced with annexures referring to the respondent.
34
[119] I made a further public note on CaseLines recording this conduct and
indicating that the person who had effected this substitution should attend at court to
explain.
[120] The relevant person did not appear.
[121] The applicant’s counsel indicated that the person was a legal secretary . I
indicated that the applicant’s attorney should attend at court to explain.
[122] Counsel indicated that the attorney was not in Johannesburg and proposed
that the explanation be given by way of affidavit which she would hand up in court on
20 June 2025, The matter stood down for these purposes.
[123] On 20 June 2025, an affidavit deposed to by the legal secretary and an
affidavit deposed to by the applicant’s attorney were furnished to me. These
affidavits have been upload onto CaseLines.
[124] Essentially, the legal secretary indicates that in consequence of my directive
that the various documents in the application were to be uploaded separately , she
uploaded the wrong documents.
[125] On 18 June 2025, the applicant’s Counsel sent her an email indicating that
the documents in another application (Nedbank v Maluwa) had been uploaded.
Presumably, this was after Counsel had read my note.
[126] To rectify her error, she removed the incorrect annexures and uploaded the
correct annexures. She referred me t o section 53 (entitled Index and Pagination)
where the entire application had been uploaded and the audit trail to indicate that
only the annexures in the bundle entitled Annexures to Affidavit had been substituted
but that section 53 was untouched.
35
[127] It is of concern that until I had considered this affidavit, no-one had referred
me to section 53. I have considered section 53 and accept the legal secretary’s
explanation.
[128] I am therefore satisfied that the application with the correct annexures is the
application referred to in the sheriff’s return.
[129] However, it is of concern that the legal secretary, it appears on her own
volition, substituted documents in the court file, which the court had already
considered, without drawing this to the court’s attention, without intending to explain
such substitution and without seeking leave of the Court to do so.
[130] The applicant’s attorney deposed to an affidavit in which he states that he
believes her intention was not to mislead the court. There appears to be no
appreciation that a member of his staff has substituted documents in the court file
without seeking leave of the Court.
[131] This appears to constitut e a failure by the applicant’s attorney to properly
oversee and control his staff as contemplated by the Code.
[132] The applicant’s attorney was invited to make submissions on CaseLines
before close of business on 9 July 2025 as to why the matter should not be referred
to the Legal Practice Council.
[133] The applicant’s attorney uploaded a letter onto CaseLines in response to the
invitation.
[134] The applicant’s attorney refers to my directive in two matters to upload the
annexures to the founding affidavit as separate documents and then explains that his
legal secretary made a mistake in doing so and then attempted to correct the
mistake once it had been pointed out to her. He contends that the documents
uploaded were the same documents already contained in the ‘ main paginated
36
bundle’. Both the applicant’s attorney and his employee made affidavits to explain
this.
[135] The applicant’s attorney denies that he does not adequately supervise his
staff or that the events in this matter support such an inference. He states that he
peruses and signs each court document to ensure its correctness and, in his
absence, an admitted attorney does so.
[136] He states, further, that there are a number of administrative functions which
are not practical to oversee – such as the uploading of documents to the Court
systems – these are done by the secretary dealing with the matter ‘and it is not
possible to deal with this on another basis’.
[137] He indicates further that the relevant legal secretary is experienced, diligent
and accurate and her work seldom needs correction.
[138] The applicant’s attorney states further, ‘ The events of 17 and 18 June 2025
were the result of an honest mistake that was rectified when discovered without any
harm or injustice to anybody.’
[139] The applicant’s attorney has failed to appreciate my concerns . He has
conceded that he does not oversee what is uploaded onto the ‘ Court systems’. Not
only are there directives to adhere to e.g. Chapter 7 of the Revised Consolidated
Practice Directive 1 of 2024 Court Operations in the Gauteng Division but there are
ethical duties imposed on legal practitioners in relation to the management of the
court file.
[140] Paragraph 7.1 of the Practice Directive provides that upon case creation,
practitioners must create sections in a format that makes it reader friendly. It must
be possible to use the automatic index to identify every document uploaded. This
was not done in this matter.
37
[141] The ‘main paginated bundle’ referred to by the applicant’s attorney , appears,
confusingly, in section number 53 entitled Index and Pagination. The section
contains one document consisting of the index and the application including the
annexures to the founding affidavit. This is not what I originally considered because
it was not apparent that this was where the application was to be found. Counsel’s
practice note did not refer to this section either.
[142] Instead, I considered a section referring to the application.
[143] Paragraph 7.2 provides that parties must not create separate sections for
each document but should upload the documents in the appropriate section. This
was not done in this matter.
[144] Paragraph 7.6 provides that an where an annexure to an affidavit or other
document is uploaded, it should be individually uploaded and described. It is
insufficient to merely describe it as FA1 or R13. This was not initially done in this
matter.
[145] In response to my directive, the notice of motion and founding affidavit
appear as separate documents in section 001 entitled Notice of Motion with
Founding Affidavit . The annexures appear in section 077 entitled Annexures to
Affidavit. All the documents constituting the application should have been uploaded
in one section as separate documents.
[146] Given the examples of non-compliance with the Directive, it appears that the
relevant legal secretary has not been instructed as to how to upload documents onto
CaseLines in accordance with the Directive.
[147] However, more importantly, the applicant’s attorney has failed to appreciate
the ethical duties of attorneys in relation to the management of the case file.
38
[148] Paragraph 13.9 of the Directive provides that , ‘ Attorneys and litigants may
not alter or delete endorsements or remove documents from any case on CaseLines.
Where an attorney or litigant is found to have tampered with endorsements or
removed documents, such attorney will be reported to the Legal Practice Council for
investigation for unprofessional conduct or unethical conduct as the case may be’.
[149] My directive did not instruct the attorney to remove any documents in the
court file but merely to upload the annexures separately.
[150] The failure of the applicant’s attorney to oversee his staff in relation to what
appears on CaseLines resulted in his employee substituting documents in the court
file without the leave of the Court.
[151] Accordingly, the judgment will be referred to the Legal Practice Council to
investigate this attorney’s conduct.
ORDER
Case Numbers 2024- 082442, 2025- 028874, 2025- 028323, 2024-067596, 2025-
036086, 2025- 047763, 2025- 047757, 2024- 124432, 2023- 116827, 2024- 130896,
2024-141685
1. These applications are removed from the roll.
2. The applicant is given leave to file a fresh independent valuation under
oath and the applications may not be set down again without such valuation.
3. Save for case numbers 2024-067596, 2025-047763 and 2024-141685,
the respondent in each matter is to be given notice of set -down of the next
hearing of the application, a copy of the fresh independent valuation under
oath and a copy of this judgment , which service shall be personal or in terms
of any order which already provides for substituted service or save as directed
otherwise by a court.
39
4. In case number s 2024-067596, 2025- 047763 and 2024- 141685, the
respondent in each matter is to be furnished with the application, a notice of
set-down of the next hearing of the application, a copy of the fresh valuation
under oath and a copy of this judgment, which service shall be personal or in
terms of any order which already provides for substituted service or save as
directed otherwise by a court.
5. There is no order as to costs, and the wasted costs of removing these
matters from the roll in all the se matters are not to be charged to the relevant
respondent's account with the applicant. In addition, the additional costs of
complying with this order and otherwise ensuring that the application is ripe
for hearing is also not to be charged to the relevant respondent’s account with
the applicant.
Case Number 2024-134542
1. The application is postponed sine die.
2. The applicant is given leave to file a fresh independent valuation under
oath and the application may not be set down again without such valuation.
3. Prior to re -enrolling the application, the applicant must serve on the
respondent personally through the sheriff, the following documents:
3.1. a revised section 129(1) Notice which, in addition to meeting the
requirements of section 129(1)(a) of the National Credit Act 2005, also
indicates that it is a revised notice and reflecting the respondent’s current
arrears;
3.2. a notice of set down which must state that:
3.2.1. the application set down for hearing on 18 June 2025 was postponed
sine die;
3.2.2. the respondent’s rights in terms of the National Credit Act, and in
particular those contemplated by section 129(1)(a) of the Act, are unaffected
by the fact that an action and consequent application for default judgment
have already been instituted;
3.2.3. the respondent is invited to respond to the revised notice within ten
days of service of that notice;
40
3.2.4. the respondent is given ten days, from the date of service of the
revised notice to explore those non- litigious ways of purging the respondent’s
default as set out in the revised notice;
3.2.5. in the event of the respondent failing to respond to the revised notice
within ten days of service of that notice, then application will be made for an
order in terms of the notice of motion which was set down for hearing on 18
June 2025;
3.2.6. the date on which application will be made which date must be more
than ten days from the date of service of the revised notice;
3.3. the fresh valuation under oath;
3.4. a copy of this judgment.
4. The Registrar is directed to send a copy of this judgment to the Legal
Practice Council to investigate the submissions of the applicant’s Counsel and
attorney and to draw their attention to paragraphs [82] to [89], [95], [97] to
[98], [105] - [115] of the judgment in the case of Counsel and paragraphs [82]
to [94], [96] to [104] of the judgment in the case of the attorney.
5. The Registrar is directed to send a copy of this judgment to the Pretoria
Society of Advocates to investigate the submissions of the applicant’s counsel
and to draw its attention to paragraphs [82] to [89], [95], [97] to [98], [105] -
[115] of the judgment.
6. There is no order as to costs, and the wasted costs of postponing the
matter is not to be charged to the respondent's account with the applicant. In
addition, the additional costs of complying with this order and otherwise
ensuring that the application is ripe for hearing is also not to be charged to the
respondent’s account with the applicant.
Case Number 2025-028322
1. This application is removed from the roll.
2. The applicant is given leave to file a fresh independent valuation under
oath and the applications may not be set down again without such valuation.
3. The respondent in this matter is to be given notice of set -down of the
3. The respondent in this matter is to be given notice of set -down of the
next hearing of the application, a copy of the fresh valuation under oath and a
41
copy of this judgment, which service shall be personal or in terms of any order
which already provides for substituted service or save as directed otherwise
by a court.
7. There is no order as to costs, and the wasted costs of removing this
matter from the roll are not to be charged to the respondent's account with the
applicant. In addition, the additional costs of complying with this order and
otherwise ensuring that the application is ripe for hearing is also not to be
charged to the respondent’s account with the applicant.
4. The Registrar is directed to send a copy of this judgment to the Legal
Practice Council to investigate the conduct the applicant’s attorney and to
draw their attention to paragraphs [116] to [151] of the judgment.
In all matters:
1. The Registrar is directed to deliver a copy of this judgment to the South
African Council for the Property Valuers Profession established under the
Property Valuers Profession Act, 47 of 2000 and to draw their attention to
paragraphs [26] to [66] of the judgment.
F SOUTHWOOD
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
Date of hearing: 8 and 20 June 2025
Date of judgment: 9 July 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto CaseLines. The date
of delivery of the judgment is deemed to be 9 July 2025.
Appearances:
42
Case No.: 2024-134542
For the Applicant:
Counsel: name withheld
Instructed by: name withheld
Case No.: 2024-082442
For the Applicant:
Counsel: L Makhoba
Instructed by: Molefe Dlepu Inc
Case No.: 2025-028874
For the Applicant:
Counsel: R Carvalheira
Instructed by: Enderstein Malumbete Inc
Case No.: 2025-028323
For the Applicant:
Counsel: V Fine
Instructed by: Rossouws Leslie Inc
Case No.: 2024-067596
For the Applicant:
Counsel: R Carvalheira
Instructed by: Enderstein Malumbete Inc
Case No.: 2025-028322
43
For the Applicant:
Counsel: V Fine
Instructed by: name withheld
Case No.: 2025-036086
For the Applicant:
Counsel: R Carvalheira
Instructed by: Enderstein Malumbete Inc
Case No.: 2025-047763
For the Applicant:
Counsel: M Msomi
Instructed by: Lowndes Dlamini
Case No.: 2025-047757
For the Applicant:
Counsel: M Msomi
Instructed by: Lowndes Dlamini
Case No.: 2024-124432
For the Applicant:
Counsel: R Carvalheira
Instructed by: Enderstein Malumbete Inc
Case No.: 2024-116827
For the Applicant:
Counsel: R Carvalheira
44
Instructed by: Fairbridges Wertheim Becker
Case No.: 2024-130896
For the Applicant:
Counsel: R Carvalheira
Instructed by: Enderstein Malumbete Inc
Case No.: 2024-141685
For the Applicant:
Counsel: V Fine
Instructed by: Rossouws Lesie Inc