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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: 19782/2012

In the matter between:

ABSA BANK LIMITED Applicant

and

LUVUYO CREADNER KEBENI First Respondent

THANDIWE KEBENI Second Respondent

_____________________________________
and

Case Number: 19782/2012

In the matter between:

LUVUYO CREADNER KEBENI First Applicant

THANDIWE KEBENI Second Applicant

and

RULES BOARD FOR COURTS OF LAW First Respondent

MINISTER OF CONSTITUTIONAL DEVELOPMENT
AND CORRECTIONAL SERVICES Second Respondent

ABSA BANK LIMITED Third Respondent

SHERIFF OF GOODWOOD AREA 1 Fourth Respondent

JUDGMENT ELECTRONICALLY DELIVERED ON 28 MAY 2025

MANGCU-LOCKWOOD, J

A. INTRODUCTION

[1] There are three applications before this Court which have been consolidated 1:
(a) the applicant’s ( “Absa’s”) application for rescission of paragraph 2 of a summary
judgment order granted on 25 February 2014 (“the rescission application”); Absa’s
application in terms of Rule 46A , issued on 9 May 2023 (“ the Rule 46A application”),
in which Absa seeks a fresh order declaring the respondents’ immovable property
specially executable; and an application by Mr and Mrs Kebeni in terms of Uniform
Rule 16A in which they seek various orders, including a declaration that Rule 46A
unconstitutional, unlawful and invalid ( “the Rule 16A application”). Whilst the parties
are cited differently in the Rule 16A application, Mr and Mrs Kebeni, who are
respondents in the first two applications and applicants in the third, are referred to as
“the respondents” throughout, for convenience and consistency.

B. RELEVANT FACTS


1 Per Directive of my brother, Erasmus J, dated 26 January 2024.

[2] The background facts cases are common cause. On 25 February 2014
Schippers J, as he then was, granted summary judgment against the respondents as
follows:

“The Court grants summary judgment:
1. Against [respondents] jointly and severally, the one paying the other to be
absolved for:
1.1 Payment of the sum of R516 603.22…
1.2 Interest on the abovementioned amount at the rate of 8,50% p.a.
calculated daily and capitalised monthly with effect from 18
September 2012 to date of final payment.
1.3 Costs of suit on a scale as between attorney and client.
2. Erf 1[...] Goodwood, situate in the City of Cape Town [(“the property”)]…is
declared specially executable.
3. The [respondents] are granted leave to defend [Absa’s] claim for interest in
the sum of R16 333.63...”

[3] Between 2015 and 2020 Absa sought to execute the order by attaching the
property, and arranged dates for sale on no fewer than 8 different occasions. At
every turn, the sale was opposed by the respondents, who launched various court
applications, including applications for leave to appeal t o the Supreme Court of
Appeal (SCA) and the Constitutional Court, both of which were dismissed with costs.
The respondents also launched rescission applications, a contempt application and
an application to stay the execution, all without success.

[4] On 29 September 2020, the respondents brought the Rule 16A application.
Amongst other things, the y challenged firstly, the then-Rule 46(12), which was
applicable when the 2014 judgment was granted, on the basis that it did not provide
for a reserve price , and secondly, the new Rule 46A which came into effect in 2017,
on the basis that it did not apply retrospectively.

[5] In response to the Rule 16A application, Absa formally abandoned paragraph
2 of the 2014 Order. The notice of abandonment was preceded by a ‘with prejudice’

letter dated 5 November 2020 from Absa’s attorneys to the respondents, which
stated as follows in relevant part:

“4. [T]he effect of paragraph 2 of the [2014] Order was to declare the
property at issue specially executable under the Rule 46 (12) of the
Uniform Rules of Court, as the Rules stood prior to their amendment in
2017 (“the old Rules”)

5. In your present application you argue essentially that:

5.1 Rule 46(12) is unconstitutional because the old Rules do not
require a reserve price to be set on property to be executed.

5.2 This is not cured by Rule 46A since it does not have
retrospective effect as per Williams2 and Rule 46 A is
unconstitutional on account of its failure to operate
retrospectively; and

5.3 It would be impermissible and unconstitutional for our client to
sell the immovable property without a reserve price.

6. Our client has considered the merits of your present application and
does not agree with it.

7. However, as a practical matter to avoid unnecessary litigation and
costs - particularly given the lengthy and costly history of this matter -
our client has elect ed to abandon paragraph 2 of the [2014] Order and
will not rely on it. In this regard, we understand that a notice of
abandonment in respect of paragraph 2 will be served on you shortly
by Absa’s attorneys of record…


2 Williams and Another v Standard Bank of South Africa Ltd and Another [2019] ZAGPPHC 364.

8. The abandonment of paragraph 2 of the Order is without prejudice to
paragraph 1 of the order, which our client does not abandon and which
remains in force.

9. As a result of our client’s abandonment of paragraph 2 of the order we
note that your present application is moot:

9.1 our clien t no longer has any order in its favo ur declaring the
property specially executable in terms of the old Rules; and

9.2 execution processes in respect of the property will now need to
take place in terms of and comply with the new rules, including
Rule 46A and its requirements in relation to a reserve price.

10. In the circumstances, we invite you to withdraw the present application
before the Honourable Court without further delay - with each party to
pay their own costs…”

[6] While the respondents accepted the abandonment, they did not withdraw their
Rule 16A application , stating that the abandonment did not deal with other issues
raised in the ir Rule 16A application, namely the application of sections 129(3), 101,
read with 103(5) of the National Credit Act, and the interest rate applicable.

[7] On 19 December 2022 Absa launched an application for rescission of
paragraph 2 of the 2014 Order , and on about 9 May 2023, Absa launched the
present proceedings to declare the property specially executable in terms of Rule
46A.

[8] It is customary for our courts, whenever it is possible, to decide any case, civil
or criminal, without reaching a constitutional issue. 3 For reasons that will become
evident, I am of the view that this is such a case, and I accordingly resume by

3 S v Mhlungu and Others 1995 (7) BCLR 793 (CC) at para 59. Zantsi v Council of State, Ciskei and
Others 1995 (10) BCLR 1424 (CC) at para 5.

determining the application brought in terms of Rul e 46A and the rescission
application.

C. RULE 46A & RESCISSION APPLICATIONS

[9] The respondents oppose the Rule 46A application broadly on four bases.
First, that the executability of the property is res judicat a. Second, based on the
authority of Williams4, Rule 46A does not operate retrospectively . Third, that Absa
has failed to comply with Rule 46(5) by provid ing a recent valuation of the property ,
the local authority valuation of the property , and the amounts owing to the local
authority as rates and other dues. Fourth, the respondents contend that their rights in
terms of Secti on 26 of the Constitution would be infringed should the property be
declared executable.

[10] In answer to the res judicata defence, Absa states, firstly, that t he
respondents accepted the abandonment of the execution order and are therefore
precluded from raising the defence of res judicata ; second, in any event, the
circumstances of the case warrant the relaxation of res judicata; and third, and in the
alternative, should the Court uphold the res judicata defence, Absa seeks a
rescission of the execution order.

[11] The issue of whether the executability of the property is res judicata, revolves
around the legal significance of Absa’s abandonment. In terms of Uniform Rule 41(2)
-

“(2) Any party in whose favour any decision or judgment has been given,
may abandon such decision or judgment either in whole or in part by
delivering notice t hereof and such judgment or decision abandoned in part
shall have effect subject to such abandonment. The provisions of subrule (1)
relating to costs shall mutatis mutandis apply in the case of a notice
delivered in terms of this subrule.”


4 Williams & Another v Standard Bank of South Africa Limited & Another (2019) ZAWCHC 364 (3 May
2019).

[12] In Body Corpora te5, default judgment had been granted in favour of the
plaintiff against the defendant for payment of the sum of R123 101.60, together with
interest and costs. It later transpired that the default judgment had been erroneously
granted without a notice of bar having been served on the defendant , and as a
result, the plaintiff elected to abandon the judgment in terms of Rule 41(2). The
plaintiff in that case argued, firstly, that once the provisions of Uniform Rule 41 were
invoked, the judgment no longer had any legal effect and therefore could not sustain
a plea of res judicata, and secondly, that the abandonment had the effect of setting
aside or rescinding the judgment. The court considered these arguments and stated
as follows:

“I do not agree with the plaintiff ’s second contention that the invocation of
Rule 41(2) had the effect of setting aside or rescinding the judgment and
therefore such judgment could not sustain a plea of res judicata. It is settled
law that parties to a judgment can not unilaterally or by consent cancel a
judgment. A judgment stands until either rescinded or set aside by a court of
appeal.

The grant of a judgment, whether by default or otherwise, has important legal
consequences. It stands until set aside by a court of competent jurisdiction,
and until that is done it must be obeyed even if the court order was incorrectly
granted (see Clipsal Australia (Pty) Limited v GAP Distributors 2010 (2) SA
289 (SCA) par as 21 and 22 and the reference therein to the decisions of
Kotze v Kotze 1953 (2) SA 184 (C) at 187f-g; Culverwell V Beira 1992 (4) SA
490 (W) at 494a -e; Bezhuidenhout v Patensie Citrus Beherend Bpk 2001 (2)
SA 224 (E) at 228f to 230 a. See also in this regard Motala supra.

The act of abandonment is of a unilateral nature and operates ex nunc and
not ex tunc. It precludes the party who has aban doned its rights under the
judgment from enforcing the judgment but the judgment still remains in

judgment from enforcing the judgment but the judgment still remains in
existence with all its intended legal consequences. The opposite party need
not accept such abandonment. It was open to the defendant to accept the

5 Body Corporate of 22 West Road South v Ergold Property 8 CC 2014 JDR 2258 (GJ) at page 6.

abandonment, which it did not do in the present case. Had the defendant
accepted the abandonment it would have been precluded from raising a plea
of res judicata.

On my reading of the rules they do not equate an abandonment with a
rescission or setting aside of the judgment. Rule 41 must be juxtaposed with
Rule 42. The latter rule deals with rescissions, which are conceptually
different.”

[13] In Fondse6, a case similar to the present, the bank appellant had loaned
money to the defend ants against the security of a mortgage bond. When the
defendants failed to pay , the bank launched action proceedings which were
defended. Ultimately, the bank obtained summary judgment , against which the
defendants applied for leave to appeal. At th e leave to appeal stage the bank
abandoned the judgment on the basis of the Sebola 7 judgment, which was issued by
the Constitutional Court after the granting of the summary judgment. Upon reading
that judgment the bank appreciated that it was non-compliant with Section 129 of the
NCA. It subsequently withdrew the action, and instituted fresh proceedings for the
identical indebtedness. In the answering affidavit , the defendant, who were now
represented by a n executor, raised res judicata as a defence to the bank’s claim ,
and the defence was upheld in the court a quo.

[14] On appeal, the central issue was whether the bank’s abandonment of its
judgment and institution of fresh proceedings under the peculiar facts of that case
constituted proper grounds upon which to relax the application of res judicata. The
issue was decided, ultimately, upon application of the fact -specific exercise
espoused in Molaudzi.

[15] In Molaudzi8 the Constitutional Court considered the scope of res judicata and
confirmed that its rationale was to give effect to the finality of judgments. However,
the Court acknowledged that the rigid application of the doctrine may cause injustice,

the Court acknowledged that the rigid application of the doctrine may cause injustice,

6 Firstrand Bank Ltd t/a First National Bank v Fondse and Another (A5027/2016) [2017] ZAGPJHC
184 (23 June 2017).
7 Sebola & Another v Standard Bank of South Africa Limited & Another 2012 (5) SA 142 (CC).
8 Molaudzi v The State 2012 (2) SACR 341 (CC).

and it considered the circumstances under which it may be relaxed , stating as
follows:

“[32] Since res judicata is a common law princip le, it follows that this Court
may develop or relax the doctrine if the interests of justice so demand.
Whether it is in the interests of justice to develop the common law or the
procedural rules of a court must be determined on a case -by-case basis.
Section 173 does not limit this power. It does, however, stipulate that the
power must be exercised with due regard to the interests of justice. Courts
should not impose inflexible requirements for the application of this section.
Rigidity has no place in the operation of court procedures.
[33] This inherent power to regulate process, does not apply to substantive
rights but rather to adjectival or procedural rights. A court may exercise
inherent jurisdiction to regulate its own process only when faced wit h
inadequate procedures and rules in the sense that they do not provide a
mechanism to deal with a particular scenario. A court will, in appropriate
cases, be entitled to fashion a remedy to enable it to do justice between the
parties. This Court held in South African Broadcasting Corp Ltd:
“The power in section 173 vests in the judiciary the authority to uphold,
to protect and to fulfil the judicial function of administering justice in a
regular, orderly and effective manner. Said otherwise it is the auth ority
to prevent any possible abuse of process and to allow a court to act
effectively within its jurisdiction.”
[34] The power in section 173 must be used sparingly otherwise there would
be legal uncertainty and potential chaos. In addition, a court cann ot use this
power to assume jurisdiction that it does not otherwise have.”

[16] At paragraph 37, the Constitutional Court continued:

“…legitimacy and confidence in a legal system demands that an
effective remedy be provided in situations where the interests of justice

effective remedy be provided in situations where the interests of justice
cry out for one. There can be no legitimacy in a legal system where final
judgments, which would result in substantial hardship or injustice, are

allowed to stand merely for the sake of rigidly adhering to the principle
of res judicata.”

D. DISCUSSION

[17] It is important to emphasise that a judgment was already issued in 2014 in
this matter , after consideration of the evidential material before the court . That
judgment remains final and binding on the parties, especially since neither the SCA
nor the Constitutional Court granted leave to appeal to the respondents.

[18] Absa contends that the respondents should be precluded from relying on res
judicata on the basis that they acceded to the abandonment. At the same time, it
relies on Ergold Property as authority for the proposition that an abandonment does
not have the effect of setting aside a decision. The significance of that authority is
that, regardless of whether the parties agreed to such abandonment, the legal
position is that the judgment stands until set aside. Parties to a judgment cannot
unilaterally or by consent cancel a judgment. A judgment stands until either
rescinded or set aside by a court appeal.9

[19] As support for its position, Absa relies on a comment that was made in Ergold
to the effect that if the defendant had accepted the plaintiff’s abandonment in that
case, it would have been precluded from raising a plea of res judicata. However, this
comment, which was made in obiter, appears to be at odd s with the ratio of the
judgment on this issue . The ratio includes a finding that the act abandonment is
unilateral in nature which the opposite party need not accept.

[20] Rather, as the case law illustrates, the question of whether res judicata
necessarily follows upon an abandonment of a judgment depends upon the facts ,10
and the particular facts of this case are determinative of this issue. According to the
common cause facts , the respondents in this case merely noted Absa’s
abandonment, which was Absa’s election . There has been no suggestion that their

abandonment, which was Absa’s election . There has been no suggestion that their
response went as far as to agree to a subsequent institution of proceedings. There is

9 Ergold Property p6.
10 See Fondse paras [33] - [48]. Prinsloo NO v Goldex 15 (Pty) Ltd & Another.

no basis to conclude that the respondents would relinquish their rights to oppose the
special execution of their property in circumstances where they had opposed such
proceedings on so many occasions, including to the SCA and the Constitutional
Court. It would be naive to read the respondents’ re sponse to th e abandonment in
that light in the context of the background that had ensued between the parties up to
that point. The parties had been embroiled in litigation for some six years by the
date of Absa’s partial abandonment.

[21] Instead, the respondents declined to withdraw their 16A application, which
was the intended aim of Absa’s abandonment, and pointed to certain other issues
that were not addressed to their satisfaction by the abandonment. Thus, on the facts
I am unable to conclude that the respondents accepted the abandonment such that
they are precluded from raising res judicata.

[22] The next question is whether res judicata should be relaxed in the
circumstances of this case , and based on both Molaudzi and Fondse, I am of the
view that there are grounds to relax its application in this case. Important in that
regard is the context of the letter dated 5 November 2020 which preceded the notice
of abandonment. It stated in clear terms that the abandonment was only in respect of
paragraph 2 of the court order. Thus, the respondents were not released from
indebtedness.

[23] As regards the special execution of the property which was the subject of the
abandoned order, the letter similarly made clear that, although that order was being
abandoned, “execution processes in respect of the property will now need to take
place in terms of and comply with the new rules , including rule 46 A and its
requirements in relation to a reserve price ”. There can accordingly be n o question of
a waiver of Absa’s right to claim the indebtedness of the respondents, or of its right
to rely on its security in terms of the mortgage bonds . The contents of the letter

to rely on its security in terms of the mortgage bonds . The contents of the letter
expressly contradict any such intention.

[24] Absa’s letter expressly stated the abandonment was for practical reasons, to
avoid further unnecessary litigation and costs. Though the litigation mentioned in
paragraph 7 of the letter was not specified, it is clear from what preceded it, namely

the summary of the respondents’ case in terms of Rule 16A at paragraph 5, that the
reference to ‘unnecessary litigation’ was a reference to the Rule 16A application.
That this was so was confirmed by the respo ndents’ response which focused on
what they considered to be outstanding from the Rule 16A application following
Absa’s abandonment.

[25] That being the case, it must be accepted that the purpose of the
abandonment was the practical resolution of unnecessary litigation which would
result from the respondents ’ challenge of the fact that the execution was to occur
without a reserve price. There is no indication that the summary judgment would
have been overturned on that basis because it was legally granted at a time when
Rule 46 had not yet been amended, and executions lawfully took place without a
reserve price. Yet that decision was now facing a constitutional attack in the form of
the respondents’ Rule 16A application.

[26] It is clear from the letter and the context that the choices faced by Absa at the
time were , to either undergo yet another prolonged litigation exercise which would
probably take some years to resolve given that it raised constitutional matters, or to
abandon that part of the order as it did, which was a shorter route. Whatever one
may say about Absa’s decision-making regarding those options, the undeniable
observation is that in both options it sought to retain for itself the right of executing
the property, which had been granted by the summary judgment . Although b oth
options involved a delay in the special execution, the latter option of abandoning
paragraph 2 was a quicker route.

[27] Absa may be criticised for its failure to realise that the abandonment would
not amount to setting aside paragraph 2 of the 2014 order, especially given that it
has throughout being legally represented, unlike the respondents. Regardless of
Absa’s folly, for which it has provided explanation, the legal reality is that paragraph

Absa’s folly, for which it has provided explanation, the legal reality is that paragraph
2 retains its legal force . If the strict application of the legal principle of res judicata is
not relaxed and the rescission application is unsuccessful, the applicant would have
no other legal recourse to enforce its rights of security in relation to the mortgage
bonds. The applicant would be left unsuited.

[28] As Absa observes, if res judicata is not relaxed in this case that will have an
unfair result in that the application of the doctrine would result in respondents’
property being released from Absa’s right of security. The respondents would be left
with unencumbered property , and Absa unable to rely on its security to satisfy the
judgment debt, which has remained unsatisfied sinc e February 2014. Manifestly,
this would be grossly unfair.

[29] I have also not found any evidence of abuse of court processes, as alleged by
the respondents in this regard , given that the intention to proceed with the special
execution was made clear in the letter of 5 November 2020 which preceded the
abandonment. T hat is what is being done now by Absa , and no such abuse was
raised by the respo ndents when they were notified of such intentions at the time of
the abandonment.

[30] The fact that the abandonment of paragraph 2 was motivated by seeking to
avoid or to settle the Rule 16A application is not reason to conclude it was to abuse
court processes. Far from it . Our courts have consistently commended and
encouraged parties in litigation to curtail and not unnecessarily prolong court
processes. That approach accords itself well with the duty to ensure expeditious
resolution of disputes, as well as the proper administration of justice.

[31] Rather, it is the respondents who have simultaneously adopted positions
which are at odds with each other . The respondents oppose, not only the Rule 46A
application, but also the re scission application, which is sought in the alternative.
Then, i n their opposition to the Rule 46 A application, they c ontend that A bsa is
bound by the decision of Williams where it was held that the Rule does not operate
retrospectively to execution orders granted prior the co ming into effect of rule 46A.
The effect of this opposition is that the old Rule 46(12) must apply, in terms of which

The effect of this opposition is that the old Rule 46(12) must apply, in terms of which
the special execution will take place without the setting of a reserve price , the very
thing that they claim is unconstitutional in their Rule 16A application. Yet, in this Rule
46A application, in their reliance on res judicata they contend that the 2014 Order
remains extant.

[32] It is no wonder that the Court was persuaded that all the matters between the
parties should be consolidated. It is in the interests of the proper administration of
justice to avoid a situation which might result in judgments which are at variance
which with each other, especially those concerning the same facts and betw een the
same parties. As the courts have repeatedly stated, litigation is not a game of
scoring technical points,11 or of playing hide and seek12.

[33] The fact that the respondents have launched an application in terms of Rule
16A to challenge the constitutionality of the old Rule is a relevant factor when
considering whether the application of res judicata should be relaxed in the
circumstances of this c ase. Also relevant is the fact that there is now a new Rule
(46A) which caters for the respondents’ quest to have a reserve price set if execution
is to take place. This displays why it is in the interests of justice in the circumstances
of this case to relax the application of res judicata. Another relevant factor is that the
respondents were made aware at the time of abandoning paragraph 2 of the Court
Order that Absa still intended pursing the special execution, in terms of Rule 46A.
Thus, the Rule 46A application was not unforeseen.

[34] Given that the nett effect of the abandonment is that paragraph 2 of the Court
Order remains extant, the relaxation of res judicata will not take away any litigation
rights of the respondents as contemplated in section 34 Constitution, or tilt the scales
in Absa’s favour , since Absa will not thereby benefit from anything that it has not
already been granted in the form of the court order . By contrast, if the relaxation of
res judicata is not permitted, Absa’s rights in terms of section 34 will be frustrated
and it will be left in limbo and without recourse because it has the benefit of a court
order which it can no longer execute because it abandoned it even though it

order which it can no longer execute because it abandoned it even though it
expressly reserv ed a right to seek that remedy although in terms of the amended
Rule.

[35] For all these reasons, I am satisfied that the application of res judicata should
be relaxed.

11 Cadac (Pty) Ltd v Weber -Stephen Products Co & others [2010] ZASCA 105 at para 10 ; Makate v
Vodacom Ltd 2016 (4) SA 121 (CC) at [120].
12 MB v CSARS [2022] ZATC 2 (8 April 2022) at paras [1] and [60].

[36] What remains is the respondents’ challenge that Absa failed to comply with
Rule 46A(5), which provides as follows:

“(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 an y other document which it
considers necessary.”

[37] The respondents state that Absa has failed to comply with Rule 46(5) by to
providing a recent valuation of the property, the local authority valuation of the
property, and the amounts owing to the local auth ority as rates and other dues.
However, there is no m erit to this allegation since those documents were indeed
attached to the founding affidavit in the Rule 46A application, as follows: a municipal
valuation certificate dated 16 January 2023 indicates that , as at that date, the
property was valued at R 1 800 000; a market-related valuation dated 1 November
2022 indicates a valuation amount of R1 650 000; a municipal account dated 23
February 2023 indicates the amounts owing to the municipality for rates, taxes and
other dues amounted to R37 610,43. Contrary to what is stated in the answering
affidavit these attachments and valuations attached to the founding affidavit were not
older than a year old prior to the launch of the proceedings which was 9 May 2023,
and were in fact very close to the date of deposing to the founding affidavit of 28
March 2023. I have also not found any evidence for the contention of the
respondents that the market value of the property is R2 400 000,00. No such proof is

respondents that the market value of the property is R2 400 000,00. No such proof is
provided. I accordingly find no merit in the challenge on the basis of Rule 46A(5).

[38] As for the respondents’ challenge that the execution will infringe their rights in
terms of section 26 of the Constitution, this challenge is based on an averment that
there are alternative means by which the judgment debt can be satisfied. However,
since the summary judgment or der of 25 February 2014, the judgment debt remains
outstanding, despite protracted ongoing negotiations between the parties . The
respondents have had more than enough time, in excess of a decade, to settle their
indebtedness, and their failure to do so indicates that they are unable to do so.
Furthermore, the evidence indicates that the respondents own a number of
properties, and are both gainfully employed and can accordingly afford alternative
accommodation. There is no evidence that the execution woul d leave the
respondence homeless.

[39] It has been held in by a full bench of this Division13 that the benefits of setting
a reserve price in most instances outweigh any prejudice which may arise in doing
so, and that it is only in exceptional circumstances that they caught should exercise
its discretion not to set a reserve price. In calculating t he reserve price in a manner
that preserves as much value of the property as possible, I consider it appropriate to
take the average between the proven market value a nd the municipal value minus
the outstanding rates and taxes, which amounts to approximately R 1 687,389.0014.

[40] The result of all the above is that there is no need to consider the rescission
application, which was only brought in the event that the res judicata defence would
be upheld. Next to consider is the application in terms of Rule 16A.

E. RULE 16A APPLICATION

[41] As I have already mentioned, the respondents launched the constitutional
challenge in terms of Rule 16A on 2 9 September 2020. They seek determination of
the following issues:


13Standard Bank of South Africa Ltd v Hendricks and another and related cases 2019 (2) SA

13Standard Bank of South Africa Ltd v Hendricks and another and related cases 2019 (2) SA
620 (WCC) paras 57-63. See also Absa Bank Ltd v Mokebe and related cases 2018 (6) SA 492
(GJ).
14 (R1 800, 000 + R1 650 000) ÷ 2 = R1 725,000 - R37 610,43 = R 1 687,389.57.

"1. Whether Rule 46(12) of the Uniform Rules of Courts, to the extent
that it continues to operate and provide that… the sale shall be
without reserve and upon the conditions stipulated under subrule
(8), and the property shall be sold to the highest bidder,
notwithstanding the coming into effect of Rule 46A on the 22
December 2017, which enjoins the courts to set a reserve price, is
unconstitutional, unlawful and invalid.
2. Whether Rule 46A of the Uniform Rules of Courts, to the extent
that it has no retrospective effect, unreasonably, unjustifiably and
unfairly excludes and discriminate against the judgment debtors
whose immovable properties have not been sold in sale in
execution as at its commencement on 22 December 2017,
irrespective of the date on which the judgment and order were
granted, is unconstitutional, unlawful and invalid.
…
7. The applicants pray that:
a. It is declared that Rule 46(12) is unconstitutional, unlawful and
invalid to the extent of its inconsistency with the Constitution.
b. It is declared that Rule 46A is unconstitutional, unlawful and
invalid to the extent of its inconsistency with the Constitution.”

[42] In a nutshell, the respondents contend that former Rule 46(12) is
unconstitutional because it allowed for the sale of residential property in execution
without the court setting a reserve price; and Rule 46A, which allows a court to
determine a reserve price, is unconstitutional because it does not operate
retrospectively.

[43] It will be immediately apparent that the determination of these issues has
become moot, as argued by Absa and the Rules Board for Courts of Law (“the Rules
Board”) and the Minister of Constitutional Development and Correctional Services
(“the Minister”). This is because , firstly as demonstrated above in this judgment the
dispute between the respondents and Absa is capable of adequate resolution
without determining the constitutional issues raised. Our courts have consistently

held that as a general principle, where it is possible to decide any case without
reaching a constitutional issue, that is the course which should be followed.15

[44] In practical terms the matter has been adjudicated by application of the
amended Rule 46A, and a reserve price has been set. There is accordingly no need
for a court to determine whether or not it is unconstitutional for Rule 46(12) to allow
for execution without setting a reserve price. Neither is there any need to determine
whether Rule 46A applies retrospectively. To the extent that the constitutional case
is based on the respondents ’ quest to have a reserve price set in the event that a
special execution is to be ordered, that has in fact been determined above, and the
Rule16A application is academic.

[45] In any event as already discussed, ABSA abandoned any reliance on former
Rule 46(12) on 20 November 2020 and instead sought to execute on the property in
terms of current Rule 46A. Despite being made aware of the abandonment as early
as 5 November 2020, the respondents have pressed ahead with the Rule 16A
application, including the specific attack against Rule 46(12). But there is no longer a
live controversy between the parties relating to the application of the old Rule 46(12).
Were an order to be handed down in relation to the old Rule 46(12) it would have no
practical impact on the respondents and ABSA. As a result, the matter is moot. It is
trite that Courts should avoid “ deciding points that are merely abstract, academic or
hypothetical”.16

[46] Faced with th is difficulty, the respondents implore this Court to exercise its
discretion to decide the constitutionality of the old Rule 46(12) despite the issue
being moot. The Constitutional Court has explained that, in limited circumstances
where a live dispute has fallen away, a court has a discretion whether or not to hear
the matter depending on what the interests of justice require, as follows:

the matter depending on what the interests of justice require, as follows:


15 S v Mhlungu and Others 1995 (7) BCLR 793 (CC) at para 59; Zantsi v Council of State, Ciskei and
Others 1995 (10) BCLR 1424 (CC) at para 5; Luitingh v Minister of Defence 1996 (4) BCLR 581 (CC);
Albutt at paras 82 – 83.
16 Legal Aid South Africa v Magidiwana 2015 (6) SA 494 (CC), at paras 16-18. JT Publishing (Pty) Ltd
and another v Minister of Safety and Security and others 1997 3 SA 514 (CC), at para 15. NCGLE v
Minister of Home Affairs 2000 2 SA 1 (CC), at para 21, see footnote 18.

“A prerequisite for the exercise of the discretion is that any order which
this Court may make will have some practical effect either on the
parties or on others. Other factors that may be relevant will include the
nature and extent of the practical effect that any possible order might
have, the importance of the issue, its complexity and the fullness or
otherwise of the argument. advanced. This does not mean, however,
that once this Court has determined one moot issue arising in an
appeal it is obliged to determine all other moot issues.”17

[47] In Normandien Farms (Pty) Limited v South African Agency for Promotion of
Petroleum Exportation and Exploitation (SOC) 18, the Constitutional Court set out that
the factors relevant in determining the interests of justice in this context, as follows:

“(a) whether any order which it may make will have some practical
effect either on the parties or on others;
(b) the nature and extent of the practical effect that any possible
order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
(e) the fullness or otherwise of the arguments advanced; and
(f) resolving the disputes between different courts.”

[48] In this regard, the respondents argue that the issues they raise have much
wider implications and affect the general public beyond the dispute between the
parties, and are therefore not moot. The Rules Board disputes this allegation, and
points to the fact that, even after the filing of the Rule 16A notice, not a single person
or organisation has expressed any interest in the matter. This, they state, is not
surprising given that the former Rule 46(12) was repealed more than seven years
ago and is clearly not of application to any other person or application pending
before a court. Both the Minister and the Rules Board state that they are not aware
of any matters currently pending before courts which still implicate Rule 46(12).

of any matters currently pending before courts which still implicate Rule 46(12).

17 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), at para 11.
18 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation
and Exploitation (SOC) 2020 (6) BCLR 748 (CC) at para 50.

[49] The respondents have not been able to point with any certainty to one case in
which ABSA applies the old Rule 46(12). All that they can attest to is their belief that
ABSA is still applying the old Rule 46(12) , based on sales listed in two Government
Gazettes, which were in any event, not attached to the replying affidavit. One of
those gazettes, Government Gazette No. 45949 , does not include any sales in
execution relating to ABSA , and makes no mention of “ Biang” or “ Unique Auto
Finance” or “ Irene Nthabiseng ” or “ Catherine Leahy ” which are referred to by the
respondents. The second of the two, Government Gazette No. 45996 , mentions
ABSA’s sales in execution relating to “ Bhim” and “ Calitz” but the sale relating to
“Calitz” does not involve residential property. And there is no evidence regarding the
specific circumstances of Bhim. It is not for this Court to speculate in th is regard.19
The net effect of the respondents’ references is that they do not rise to the level of a
wider, general impact of Rule 46(12) which needs to be s afeguarded by a judgment
of this Court. They have failed to establish any such need in the papers.

[50] In any event, the respondents have refrained from setting out the ir own
personal circumstances or to establish factually that their rights have been infringed
or are even threatened. Instead, they plead legal conclusions, which merely assert
that their rights to equality, dignity, adequate housing and not to be arbitrarily
deprived of property will be infringed. At most , the applicants provide two
hypothetical examples of court judgments where properties sold in execution without
a reserve price were sold for significantly less than their market value.

[51] The Rule 16A application has accordingly been shown to be moot and
academic, and it has not been shown to be in the interests of justice to determine the
issues raised in it.

[52] There is also to consider the undue delay in filing the Rule 16A application, for

[52] There is also to consider the undue delay in filing the Rule 16A application, for
which there remains no explanation or condonation application. In this regard it is
relevant that the Court Order which is the subject of the application was granted on
25 February 2014, the new Rule 46A was brought into effect on 17 December 2017,

19 Legal Aid South Africa v Magidiwana, para 18.

and the constitutionality challenge was instituted on 29 September 2020. The
founding affidavit in the Rule 16A is silent regarding the rea sons for the lengthy
delay. In court, Mr Kebeni stated from the bar that it is clear that the parties have
been embroiled in litigation since the granting of the summary judgment. That,
however, does not suffice. Condonation is not there for the asking.

[53] It has been held that a failure to bring a review within a reasonable time may
cause prejudic e to the other part ies, which has an effect on the public interest
considerations in the finality of administrative decisions and the exercise of
administrative functions. 20 As a result, courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings, to refuse a review application
if the aggrieved party had been guilty of unreasonable delay in initiating the
proceedings. Where there is no factual basis upo n which a court can exercise its
discretion to condone a lengthy delay the appropriate remedy is that the matter
should be dismissed.21

[54] The facts of this case demonstrate that t his is not just a matter of elevating
form over substance . In the explanatory affidavit filed by the Minister and Rules
Board, they set out the prejudice caused by the respondents’ delayed challenge to
the Uniform Rules . They explain that each Rules Board is appointed for a five -year
term, and that a considerable period has elapsed since Rule 46 was amended in
2017. And despite diligent search they were not able to source all the relevant
information and documentation required in order to fully explain the amendment
process and that a considerable gap exists for the period between 2006 and 2010.

[55] For all these reasons, the Rule 16A application must be dismissed on account
of its mootness and the undue delay in launching it . There is furthermore no reason
why costs should not follow the result. In terms of the mortgage loan agreement and

why costs should not follow the result. In terms of the mortgage loan agreement and
mortgage bonds attached to the particulars of claim in the action , costs are to be
paid on an attorney and client scale.

F. ORDER

20 Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA).
21 Hoexter and Penfold (Eds) Administrative Law in South Africa, (Third Edition, 2021), p 35.

[56] In all the circumstances, the following order is granted:

1. The Rule 46 A application is granted and the respondents ’ property is
declared executable, subject to a reserve price of R1,687,389.00.

2. The application in terms of Rule 16A is dismissed.

3. The respondents are to pay the costs of the Rule 46 A, rescission
application and Rule 16A application on an attorney and client scale.


_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court


APPEARANCES

For the applicant : Adv J.W. Jonker
Instructed by : J.C. Fourie
Fourie Basson & Veldtman

For the respondents : Mr. and Mrs. Kebeni (in person)

For the applicants : Mr. and Mrs. Kebeni (in person)

For the first and second respondent : Adv M. Vassen
Instructed by : N. Mahlaba
State Attorney

For the third respondent : Adv K. Williams
Instructed by : P. Mohanlall
Webber Wentzel