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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 096078/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
31.07.2025
In the matter between
FIRST RAND BANK LIMITED APPLICANT
And
MASANA BALOYI FIRST RESPONDENT
CITY OF EKURHULENI METROPOLITAN SECOND RESPONDENT
MUNICIPALITY
P[...] F[...] LIFESTYLE BODY CORPORATE THIRD RESPONDENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically by
circulation to the parties’ legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date of handing -down is deemed to
be 31 July 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KEKANA AJ
INTRODUCTION
[1] This is an application for summary judgment against the first respondent as well
as an order declaring the mortgaged immovable property of the first respondent
specially executable.
BACKGROUND
[2] The first respondent’s indebtedness arises out of a loan agreement entered into
between the parties during April 2019. As security for the debt arising from the
abovementioned loan agreement, the respondent caused a mortgage bond to be
registered over the immovable property.
[3] The applicant subsequently issued summons for an amount of R563 283.88
against the first respondent for defaulting on his obligations under the loan
agreement and the mortgage bond. The first respondent entered an appearance to
defend and filed a plea after the applicant served a Notice of Bar. The applicant
served and filed this application, which is opposed.
POINTS IN LIMINE
[4] The first respondent raised points in limine to the applicant’s application, which
are addressed below.
Lack of jurisdiction
[5] The respondent submitted that this application contravenes the following sections
of the Constitution of South Africa: section 10, which protects the right to dignity,
section 25, which protect the right to own property, section 26 which protects the
right to housing and ensures that no one is unfairly evicted or left homeless and
section 28 which recognises that the children need special protection and care. The
respondent contends that this application in terms of Rule 46A contravenes his rights
and will also affect the rights of a minor child without providing the details.
[6] The applicant submitted that the correct procedure and practice for these matters
are well established and that the honourable court has jurisdiction to adjudicate the
matter as duly set out and regulated in terms of Section 21(1) Act 10 of 2013 (as
amended). The applicant further submitted that the action between the parties is
contractual and does not involve the interpretation, protection or enforcement of the
Constitution.
[7] Rule 16A of the Uniform Rules of Court in South Africa sets out the procedure to
be followed when a party raises a constitutional issue in High Court proceedings.
The purpose of which is to ensure that constitutional matters are dealt with
transparently and that interested parties and the public are given notice and an
opportunity to intervene, especially in cases with broader public interest.
[8] Rule 16A requires that a party raising a constitutional issue to deliver a notice,
setting out the nature of the issue, and to serve the notice on all parties and file it
with the Registrar who will display the notice allowing interested parties to potentially
participate as amici curiae.
[9] Similarly, in Phillips and Others v Director of Public Prosecutions 2006 (1) SA 505
(CC), the Constitutional Court cautioned against raising constitutional arguments
without proper notice, particularly when such issues were not raised in the founding
papers or at the earliest opportunity.
[10] In the present matter, the first respondent seeks to rely on a constitutional issue
without complying with the mandatory procedural requirements of Rule 16A of the
Uniform Rules of Court . He failed to deliver a Rule 16A notice, has not filed it with
the Registrar, and no such notice has been placed on the court's notice board. There
has been no opportunity for interested parties or amici to respond to the issue. The
first respondent’s attempt to raise the constitutional point, without following the
prescribed procedure, is irregular and prejudicial.
[11] In the result, I find that this point in limine stands to be dismissed.
Non-joinder
[12] The respondent submitted that the Minister of Justice and Constitutional
Non-joinder
[12] The respondent submitted that the Minister of Justice and Constitutional
Development (the Minister) must be joined to pronounce on the proper functioning of
the impugned constitutional clauses and the effectiveness of Rule 46A, as it has the
potential to render a person homeless. In response thereto, the applicant submitted
that the Minister of Justice and Constitutional Development was not a party to the
Loan Agreement and/or the Mortgage Bond and thus has no direct, indirect and/or
substantial interest in the relief sought or the outcome.
[13] Having already decided against the adjudication of the Constitutional challenges
raised by the first respondent, this point in limine is baseless as the determination of
the issues does not require the Minister’s input or participation as required in Rule
10A of the Uniform Rules of Court.
[14] Accordingly, this point in limine cannot be upheld.
Non-Compliance with the rules
[15] The first respondent submitted that the applicant could not approach the court in
terms of Rule 46A in the summons, instead of by application. The applicant
submitted that it was proper to bring the application in terms of Rule 46A together
with the application for summary Judgment.
[16] In addition to including the issue of the executability of the first respondent’s
property in the summons, the applicant brought a separate Application in terms of
Rule 46A to be heard simultaneously with the application for Summary Judgment. In
this regard, the applicant relies on the matter of Changing Tides 17 (Pty) Ltd NO v
Rademeyer and Another (1911/2019) [2019] ZAGPJHC 165 (31 May 2019) where an
application for summary judgment was instituted together with a separate application
in terms of Rule 46A to be heard simultaneously.
[17] In ABSA v Sawyer (2018/17056) [2018] ZAGPHC 662 (14 December 2018) the
court adopted a pragmatic approach and prioritised substance over form. The court
found that summary judgment, including a Rule 46A application, can be granted
provided that there has been substantial compliance, meaning that sufficient
information has been placed before the court allowing it to strike a fair balance
information has been placed before the court allowing it to strike a fair balance
between the parties competing interest (see FirstRand Bank Ltd v Folscher and
Another 2011 (4) SA 314 (GNP). Once the court is satisfied that all relevant Rule 46A
factors have been addressed and the debtor has been afforded a fair opportunity to
respond, the court may grant an order of executability in summary judgment.
[18] It is clear from the above cases that what is of importance is whether the court
has been placed in a position to exercise the judicial oversight enunciated in ABSA
Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ), regardless of whether
the matter is brought by motion or action. In the current matter, a separate
application in terms of Rule 46A was brought to be heard together with the
application for Summary judgment. Whether same ought to be granted, is a matter
to be determined later in this judgment. Therefore, the first respondent’s point in
limine in this regard cannot be upheld.
LEGAL PRINCIPLES
[19] Summary judgment is a mechanism designed to enable a plaintiff with a clear
case to obtain expeditious relief without the need for a trial where the defendant has
no bona fide defence and is merely seeking to delay the proceedings. The rule aims
to prevent the abuse of the court process by defendants who have no real defence to
the claim. (See Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture 2009 (5) SA 1 (SCA) at para 32)
[20] In deciding on whether to grant the application, the court must determine
whether the defendant has shown facts that, if proven at trial, would constitute a
defence to the plaintiff’s claim. The court is not required to determine the truth of the
defence, but only whether it is sufficiently plausible to warrant a trial. (see Maharaj v
Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A–C.)
[21] The opposing affidavit must disclose material facts with enough detail to show
that, if proven at trial, the defence would succeed. Vague or bald averments are
inadequate. (See: Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228F –
229C).
ANALYSIS
[22] The applicant asserts that its claim is contractual and stems from a mortgage
ANALYSIS
[22] The applicant asserts that its claim is contractual and stems from a mortgage
loan agreement entered into by the parties on 8 April 2019. According to the terms of
the agreement, the applicant disbursed the principal amount to the first respondent,
which funds were utilized for the purchase of the immovable property in question.
Further that the first respondent subsequently defaulted on his obligations by failing
to make the agreed -upon monthly instalments. As of 17 August 2023, the
respondent was in arrears in the amount of R101,588.91, with the total outstanding
balance reaching R563,263.88.
[23] Furthermore, the applicant asserts that it has fulfilled its obligations under
Section 129 of the National Credit Act 34 of 2005 ("NCA") by serving a notice to the
respondent, informing him of his default and the available remedies. The first
respondent acknowledges receipt of the Section 129 notice but insists that it was not
service was not proper. It is now established that what matters is that the notice was
served and came to the respondent’s attention , not the method of service. In this
case, the first respondent was properly served and there is no need to adjourn the
matter. (see Sebola and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142 (CC).
[24] The first respondent denies being indebted to the applicant in the alleged
amount and contends that none of the monies allegedly owed by him in terms of the
loan agreement reflected in his bank account. Inexplicably, the first respondent
simultaneously alleges that his arrears on the loan agreement amount to R 5 828.91.
The first respondent insisted that the covering bond in the sum of R95 760.00 should
be utilised by the applicant to pay for his arrears but does not provide a basis for this
contention.
[25] In his plea, the first respondent denied receiving the loan amount in his personal
account. However, he also admits to being in arrears in the amount of R 5 828.91.
Notably, in his email dated 31 August 2023, the first respondent clearly
acknowledged his debt and committed to making monthly payments of R5,500.00
acknowledged his debt and committed to making monthly payments of R5,500.00
starting September 2025. This communication, along with the averments in the
affidavits and the plea disputing the arrears as being less than claimed, constitutes
an acknowledgment that he was in breach of the loan agreement, making his denial
of indebtedness untenable.
[26] Moreover, although the first respondent claims that the arrears amount to a
lesser figure than that alleged by the applicant, he has failed to produce any
documentary proof of payments made to support his contention. In contrast, the
applicant has tendered a certificate of balance, the evidentiary value of which has
not been challenged by the first respondent on any substantive ground. It is trite that
bald denials unsupported by evidence do not constitute a bona fide defence.
RECKLESS LENDING
[27] The first respondent also resists the Summary Judgment by alleging that the
loan agreement amounts to reckless lending. He alleges that he did not fully
appreciate the risks, costs, and obligations associated with the loan, and therefore
the credit was granted without proper compliance with the Act.
[28] The applicant disputes this allegation and avers that a full affordability
assessment was conducted prior to the conclusion of the agreement. The
assessment revealed the following: (a) The first respondent was not under debt
review, sequestration, or administration at the time of application; (b) His total
income amounted to R26 800.00, comprising: (i) A salary of R25 000.00; (ii) A car
allowance of R1 500.00; and (iii) An entertainment allowance of R300.00; (c) His
total monthly expenses, including R5 000.00 for rental, were disclosed as R15
000.00; (d) After deducting expenses, the first respondent had a surplus (disposable
income) of R11 300.00. This surplus was sufficient to afford the agreed monthly
instalment of R5 082.00.
[29] The applicant submitted that based on the above, the first respondent had the
financial means to meet his obligations, and that the credit was granted responsibly.
It is clear from the applicant’s explanation that an assessment was done and that in
the absence of evidence to the contrary, the first respondent’s allegation of reckless
lending is thus without merit.
RULE 46A
lending is thus without merit.
RULE 46A
[30] Turning to the application to declare the property specially executable, the
applicant placed the following information before court:
(a) The property is the primary residence of the first respondent; (b) the first
respondent utilised the money loaned to purchase the property; (c) the applicant
complied with the provisions of section 129 of the NCA, to which the first respondent
did not react; (d) As at the day when section 129 notice was sent, 18 August 2023,
the arrears on the loan account amount to R101 588.91; (e) As at the date the
affidavit in support of the Summary Judgments was done, the amount in arrears had
increased to R311 715.90; (f) the arrears as on the 17 April 2024 amounted to
R144 642.99 and the total outstanding amount on the loan account amounted to
R609 517.73; and (g) there is no reasonable alternative to execution against the
property.
[31] In response to the application in terms of Rule 46A, the first respondent
contends that it is unconstitutional, as it would deprive him and a minor child of their
primary residence. He stated that at the date of the hearing of this matter, he was
employed as a candidate attorney receiving only a stipend.
[32] Rule 46A of the Uniform Rules of Court empowers the court to order execution
against the primary residence of a judgment debtor if there is no other satisfactory
means to satisfy the judgment debt. In deciding on the executability of the
immovable property, the court seeks to strike a balance between the interest of a
commercial institution and the debtor’s right to adequate housing.
[33] The court is also empowered to set a reserve price at which the sale in
execution should be conducted, taking into account the market value of the
immovable property, the amount owing as rates or levies, the amounts owing on
registered mortgage bonds, equity which may be realised between the reserve price
and the market value.
[34] The first respondent’s argument that Rule 46A is unconstitutional is without
merit. Rule 46A was enacted to give effect to Section 26 of the Constitution, which
merit. Rule 46A was enacted to give effect to Section 26 of the Constitution, which
particularly protects people’s rights to housing and ensures they are not unfairly
evicted or left homeless. Particularly Section 26(3), which prohibits evictions or
demolition of homes without a court order made after considering all relevant
circumstances.
[35] The rule introduced judicial oversight in all cases where a primary residence is
sought to be sold in execution, ensuring the court considers the debtor’s personal
and financial circumstances, evaluates the proportionality of selling a person’s home
to recover a debt, and assesses whether less drastic measures are available. When
evaluating the debtor’s personal circumstances, the court will also consider other
rights that the debtor has. Additionally, the court will take into account the rights of
minor children living on the property in question.
[36] The constitutional validity of judicial oversight has been confirmed by the
Constitutional Court in Gundwana v Steko Development and Others 2011 (3) SA 608
(CC), which determined that selling a primary residence without judicial oversight
violates Section 26(3). In Standard Bank of South Africa Ltd v Hendricks and Others
2019 (2) SA 620 (WCC), the court supported Rule 46A as a way to ensure fairness,
equity, and constitutional compliance in execution proceedings against immovable
property.
[37] The first respondent indicated that he was earning a stipend and does not
indicate how he intends to regularise his account. His undertaking to resume paying
the instalments approximately 2 years after the summons has been issued does not
satisfy the requirement of providing an alternative to how the debt will be repaid. The
first respondent is currently employed and should be able to secure accommodation
for himself and his family.
[38] I find that the applicant has made out a case for the property to be declared
specially executable.
[39] The applicant placed the following information before the court in support of the
application in terms of Rule 46A to enable the court to set a reserve price:
(a) The last payment made to the account on the 31 August 2023 was R200.00;
(a) The last payment made to the account on the 31 August 2023 was R200.00;
(b) As at the date of issuing of the summons, the arrears amounted to R101 588.91;
(c) As of 17 April 2024 to the arrears amounted to R144 642.99;
(d) As of 17 April 2024, the first respondent was approximately 26.57 months in
arrears;
(e) The market value is estimated at R500 000.00. The estimated forced sale value
amount R400 000.00;
(f) The amount outstanding on the bond is an amount of R609 517.73;
(g) The amount owing to the local authority for rates and taxes amounts to
R14 356.29;
(h) Outstanding levies as of 1 May 2024 amounted to R33 908.47
CONCLUSION
[40] The first respondent’s conduct in these proceedings is indicative of an attempt to
delay the enforcement of a legitimate debt. The first respondent has raised
unmeritorious technical objections and advanced contradictory defences. He has, on
the one hand, acknowledged indebtedness in correspondence and affidavits, while
on the other, denied such indebtedness in his plea. This amounts to approbating and
reprobating, a course of conduct which evinces a lack of bona fides and
demonstrates the absence of any genuine defence to the applicant’s claim. I
therefore find that the applicant’s application for Summary judgment should be
granted, together with an order declaring the immovable property specially
executable.
In the result, I make the following order:
1. The first point in limine is dismissed.
2. The second point in limine is dismissed.
3. The third point in limine is dismissed.
4. The application for Summary Judgment is granted with costs. The respondent is to
pay the sum of R563 283.88 together with interest at the rate of 11.85 nominal per
annum, calculated daily compounded monthly from 31 July 2023 to date of
payment.
5. The below mentioned mortgaged property is declared specially executable:
(a) A Unit consisting of 200 as shown more fully described on Sectional Plan
No. SS171/2011 in the scheme known as P[...] F[...] in respect of the land
and buildings situated at Comet Extention1 Township; Local Authority: City
of Ekurhuleni Metropolitan Municipality of which section the floor plan is 62
square metres in extent and
(b) An undivided share in the common property in the scheme apportioned to
the said section in accordance with the participation Quota as endorsed on
the said sectional plan,
Held by deed of transfer number ST17376/2019 and subject to the conditions
as set out in the aforesaid deed known as Door 2[...] P[...] F[...], G[...] Street,
Comet Ext. 1, Boksburg.
6. The abovementioned immovable property may be sold in execution by the Sheriff
with a reserve price of R430 000.00.
7. The Registrar is authorised to issue the writ of execution against the
abovementioned immovable property.
8. The first respondent to pay the costs on an attorney and client scale.
P D KEKANA
ACTING JUDGE OF THE HIGH COURT
DATE OF HEARING: 19.07.2025
DATE OF JUDGMENT: 31.07.2025
APPEARANCES
Counsel for the applicant: Adv H Marais
Instructed by: RWL Incorporated
The first respondent: In person