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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 131861/2025
(1) REPORTABLE: N
(2) OF INTEREST TO OTHER JUDGES: N
(3) REVISED: Y
Signature:
Date: 22.8.2025
In the matter between:
MARTIN DZVITI First Applicant
RUTH DZVITI Second Applicant
and
EHLERS FAKUDE INCORPORATED First Respondent
SHERIFF OF THE COURT Second Respondent
JUDGMENT
Kumalo J
INTRODUCTION
[1]. In this matter, the Applicants approached this court on an urgent basis to
interdict the Respondents from proceeding with the sale in execution by public
auction of the Applicants’ two immovable properties scheduled for the 26 th of
August 2025.
[2]. The First Respondent opposes the application.
[3]. The genesis of this matter dates as far back as 2015 and culminated in a full
bench appeal in this Court. In 2017, the First Respondent demanded a payment
of R246,390.71, which was based on a taxed bill of costs of 2017. Applicants
failed to pay the amount, and the First Respondent issued Summons
Commencing Action out of the Regional Court, Pretoria. Summary judgment
was granted on 18 May 2018 for the above -stated amount plus interest at
10.5% a tempore more.
[4]. The Applicants brought an application for the Rescission of Judgment, which
was denied with costs. The taxed bill of costs for the rescission application
amounted to R29,816.94.
[5]. The Applicants were presented with the two bills of costs, and they failed to
make payment to the First Respondent. Warrants of execution were issued, but
the First Respondent received a nulla bona.
[6]. The First Respondent obtained a Court Order in terms of section 66 of the
Magistrate Courts Act 32 of 1944, which authorised the Clerk of the Court to
issue a warrant of execution against the immovable property of the debtors.
[7]. The Applicants decry the fact that the sale in execution of the immovable
property, which they allege is their primary residence, is to proceed without a
reserve price as required by law and sought to rely on the provisions of Rule
46A of the Uniform Rules of Court.
[8]. Counsel for the Respondent counted the above by mentioning that the
proposed sale in execution in this regard is in terms of section 66 of the
Magistrate Courts Act, Act 32 of 1944.
[9]. Simply applying section 66 has led to abuse by creditors, wherein the debtor’s
immovable property would be sold for a price that is substantially less than its
market value. In the matter of Jaftha v Schoeman and Others 1The
Constitutional Court held that section 66(1)(a) was unconstitutional because it
failed to provide judicial oversight over sales in execution against immovable
property of the judgment debtor. The clerk of the court could issue a warrant of
execution against immovable property upon being presented with a nulla bona
return from the sheriff.
[10]. Section 66( 1)(a) was amended to introduce R ule 56A, which implemented an
application process to declare immovable property specially executable in terms
of section 66(1)(a) of the Act.
[11]. In the application, the Court is enjoined to enquire into all relevant
circumstances, which may include the amount and nature of the debt, the
circumstances in which the debt arose, the financial situation of the debtors and
family, any attempts made by the debtor to pay off the debt, the alternatives
which might allow recovery of the debt without the sale in execution of the
debtor’s property, the hardship which will be caused to the debtor and family or
other occupies if the sale is permitted, whether the creditor’s interest will be
adequately protected and any other relevant factors.
[12]. In this case, though it appears that an application was made in terms of s ection
66(1)(a) to declare the Applicants’ immovable property specially executable, this
Court is not satisfied that a proper consideration was done.
[13]. The Applicants allege that the property is their primary residence. No reserve
price was suggested or proposed. It is not clear from the conditions of sale what
rates and taxes are owed, or if they ever were requested from the relevant
municipality. There is no indication whether the banks were served with the
1 Jaftha v Schoeman and Others; Scholtz and Others 2005 (2) SA 140 (CC)
applications. All that the deponent to the affidavit of the First Respondent is that
they have requested from the banks the balance outstanding on the bond.
[14]. The conditions of sale do not speak to any reserve price and do not indicate
what is owed in terms of rates and taxes. It is also not clear if any of the
creditors of the Applicants have been advised, for example, the Receiver or
Revenue, etc.
[15]. Counsel for the Applicants also raised the issue of whether the First
Respondent can claim fees in circumstances where it is self -represented. He
based his argument on the fact that the First Respondent is the alter ego of Mr.
Fakude, who argued the matter on behalf of the First Respondent. Whilst this
may be a fascinating argument, this Court is unable to entertain the same since
it was not pleaded in the Applicants’ papers, particularly their founding affidavit.
[16]. Whilst technically the Applicants’ counsel did not file a certificate confirming the
urgency of the matter, this court is of the view that it would be unjust to punish
the Applicants for their counsel’s failures and/or shortcomings. I am further of
the view that the matter was sufficiently urgent to be heard by this Court.
[17]. In the circumstances and based on the above, the following order is made:
1. That condonation for failure to comply with the ordinary rules of this court
relating to timeframes and format of application be and is hereby condoned
by reason that this application is urgent as envisaged in Uniform Rule 6 (12).
2. The Respondents are hereby interdicted and restrained from carrying out an
auction sale in execution in respect of ERF 1 […], PORTION 2 […] H[…]
G[…] EXTENSION 102, MIDRAND, JOHANNESBURG in GAUTENG held
under Title Deed No 15/8/2025 -3:04:33 PM Page 2 of 4 076 -9 076-9 3 DT
93941 / 2004 as well as ERF 1 […], PORTION […] H[…] G[…] EXTENSION
1[…], MIDRAND, JOHANNESBURG in GAUTENG held under Title Deed No
DT 98113 / 2004 scheduled for the 16th day of AUGUST 2025 at 10h00.
3. Each party is to pay its own costs.
MP Kumalo
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic
file of this matter on CaseLines.
For the applicant: Adv I Mereriwa
Instructed by: Chivizhe & Katiyo Attorneys
For the first respondent: Mr EZ Fakude
Instructed by: Ehlers Fakude Incorporated