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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO. 27169/2020
In the matter between:
ABSA BANK LIMITED Applicant
and
CORNELIUS DE HEUS Respondent
JUDGMENT
H G A SNYMAN AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
……3/9/2025..................... …………………………….
DATE SIGNATURE
BACKGROUND
[1] The respondent (“Mr de Heus”) is the owner of the fixed property known as
Erf 5[...], Benoni Township, registration division I.R., province of Gauteng,
measuring 595 (five hundred and ninety five) square metres, held by deed
of transfer number T[...]. This is Mr de Heus’ primary res idence. It is
situated at 1[...] K[...] Avenue, Benoni, central (“the property”).
[2] Mr de Heus purchased the property by obtaining a home loan from the
applicant (“ABSA Bank”) on 10 October 2006 in the amount of R715,000.
As security for the loan, ABSA Bank registered a mortgage bond of over the
property in the combined sum of R858,000.
[3] Mr de Heus fell in arrears with his bond payments and ABSA Bank
instituted action against him in June 2020.
[4] On 1 August 2022 , ABSA Bank obtained judgment against Mr de Heus in
this court per order of Makhoba J. In terms of the order:
[4.1] The judgment amount was R624,934.21 plus interest at the rate of
6.25% per annum as from 19 May 2020 to date of final payment,
such interest to be capitalised monthly in arrears;
[4.2] The property was declared to be specifically executable;
[4.3] The property had to be sold in execution by the Sherriff subject to a
reserve price of R750,000.
[5] The Sherriff proceeded with the sale in execution on 20 July 2023. It is
common cause that before that, t he sale i n execution was “properly
advertised” in the Government Gazette and Citizen newspaper on 30 June
2023.
[6] According to the Sherriff’s report in terms of rule 46A(9) (c) and (d) (and this
is also common cause ), although t he auction was attended by eight
“bidders”, no bid was received.
[7] This is an application in terms of rule 46A(9)(c) of the Uniform Rules of
Court (“the rules”). This is for this court to reconsider the reserve price of
R750,000 set by the court in granting the order on 1 August 2022.
THE PARTIES’ CONTENTIONS
[8] ABSA Bank contends in its founding affidavit that the relevant factors this
court is required to take into consideration are as follow:
[8.1] Default judgment was granted in favour of ABSA Bank for a
substantial amount, being R624,934.21;
[8.2] The current outstanding balance on the home loan account, as at 20
September 2023, amounted to R944,326.42 (by now, two years later,
it is obviously higher than that);
[8.3] The outstanding balance is ever escalating, to the detriment of ABSA
Bank;
[8.4] The current monthly instalment amounts to R26,476.91 per month;
[8.5] The last payment that Mr de Heus made was on 2 May 2018 in the
amount of R10,500. The position regarding any payment s has not
changed since then;
[8.6] The total current arrears on the amount is R854,503.91 as on 20
September 2023;
[8.7] The current market value of the property is estimated to be
R1,100,000 as per a valuation dated 29 May 2023. The municipal
valuation is R870,000;
[8.8] The outstanding rates and taxes due to the local authority, as at 2
November 2023, amounted to R12,594;
[8.9] There are, to the best of ABSA Bank’s knowledge, no reasons other
than the reserve price being too high, taking the outstanding rates
and taxes owed t o the municipality into account, for the failure to
achieve a bid at the sale in execution;
[9] ABSA Bank contends in addition that both ABSA Bank and Mr de Heus
would be prejudiced by any further delay in the matter in that interest,
charges and service fees will continue to accrue to the outstanding balance.
This will result in the equity in the property being diminished.
[10] Moreover, ABSA Bank contends in the founding affidavit that both it and Mr
de Heus would benefit if the property is sold at a sale in execution “without
a reserve price ” as expeditiously as possible . This is to guard against the
deterioration of the property . I n doing so, it would secure a reasonable
selling price for the immovable property. I point out that i t was also in the
heads of argument on behalf of ABSA Bank submitted that no reserve price
ought to be fixed. However, this submission was not persisted with before
me. Before me, the relief sought was in accordanc e with the notice of
motion, namely that the reserve price be reduced from R750,000 to
R600,000.
[11] In his answering affidavit, Mr de Heus admitted that the sale in execution
was properly advertised. What transpired at the sale in execution was also
admitted.
[12] In so far as ABSA Bank’s relevant factors as set out above are concerned,
Mr de Heus merely noted what is stated in subparagraphs [8.1] to [8.6] and
[8.8] above. For the remainder:
[12.1] He denied that the property is worth only R1,100,000. According to
him, based on a Lightstone erf valuation of the property dated 6
December 2024 that he obtained , the estimated high value of the
property is R1,520,000 and the expected value is R1,160,000;
[12.2] He denied that the only reason for a bid not being received was the
reserve price.
[13] Regarding the latter, he stated that it is well known fact that the Sheriff’s
auctions are flooded with property speculators looking for a bargain and will
therefore not make a reasonable bid or offer. He alleged that this is
supported by the f act that no bid at all was received for the property at the
Sheriff’s auction. He said that if there were serious buyers then at least one
bid would have been received. He also referred thereto that the prime
interest rate has substantially been reduced since the property was
auctioned by the Sheriff, which will make a present sale much more
enticing to serious property buyers. Mr de Heus says that this is but one
factor that should be considered when determining the reserve price.
[14] He says that the way the auction process is designed, in that the auction is
not effectively advertised and managed is to the detriment of respondents
such as himself in that a realistic price for the property will not be fixed at
these auctions. He said that this court should follow a more practical and
creative approach in auctioning a property, thereby realising a realistic
market value for the sale of the property. He argued that this will be to the
benefit of respondents such as himself as wel l as others in a similar
situation as they would not be burdened with a huge debt after the sale of
the property.
[15] He alleged that currently most auctions are still performed at the Sheriff’s
offices at the sole oversight of the Sheriff. He argued that there is no judicial
oversight or governance over these proceedings and it gives room for the
abuse of the process, fraud and corruption at these sales. (Mr de Heus
provided no support for this contention . This, of course, also does not take
into account that if the reserve price fixed by the court is not achieved, the
Sheriff must within five days of the auction submit a report to court ,
addressing the issues listed in rule 46A(9)(d)(i) to (iv). Judicial oversight is
therefore expressly provided for in the rules.)
[16] Mr de Heus also argued that the current sale in execution process is
unfavourable. He requests that this court makes an order that the sale in
execution should be performed at the court of execution (in this case this
court) as opposed to at the Sheriff’s office. He also submitted that the sale
should occur by the Sheriff , with the Registrar of this court being present.
He stated in this regard that the Sheriff should be the auctioneer and the
Registrar should be the administrator of the auction proceedings. Moreover,
that the sale in execution should be listed on the court roll. (Again, Mr de
Heus cited no authority for this).
[17] He argued that the introduction of judicial oversight over a sale in execution
process will eradicate the potent ial of fraud and corruption. He asks that
this court increase the reserve price to R812,000.
[18] He merely noted ABSA Bank’s contention that both it and Mr de Heus
would be prejudiced by any further delay in the matter in that interest,
charges and service fees will continue to accrue to the outstanding balance,
with the result that the equity in the property will diminish. He argued that a
reasonable selling price will only be achieved should this court make an
order as proposed by him.
[19] In addition to the ab ove, Mr de Heus denied in the answering affidavit that
ABSA Bank’s deponent, Ms Thea Louise Williams (“ Ms Williams”) had the
necessary authority “ to depose to the founding affidavit ”, stating that her
signing authority expired on 31 December 2023 . (It is c orrect that t his is
actually what appears from the resolution that ABSA Bank attached to the
founding affidavit.)
[20] In the replying affidavit deposed to on 27 January 2025, Ms Williams
acknowledged that by the time she deposed to the founding affidavit, the
signing authority had already expired. She said, however, that nothing turns
on this because Mr de Heus did not evoke the provisions of rule 7 of the
rules.
[21] Be that as it may, Ms Williams annexed to the replying affidavit what she
referred to as “the correct resolution which ought to have been attached to
the initial Founding Affidavit and which resolution was of full operation,
force and effect as at 26 February 2024 when I deposed to the initial
Founding Affidavit”. In addition, she said that Mr de H eus’ opposition was
ill-founded because she was advised that in law no authority is needed to
testify in court proceedings. Any person of sound and competent mind is a
competent witness to testify in court proceedings. She therefore contended
that there is simply no merit in the ill -founded point made and raised by Mr
de Heus.
[22] However, it appears from the resolution attached to the replying affidavit,
that it was still not the “correct resolution”. It was only passed on 1 August
2024 and it would expire by 31 December 2025. Based on the two
resolutions before court, there is therefore a gap between 1 January 2024
to 31 July 2024 , i.e. the period during which the founding affidavit was
signed. Mr Eastes on behalf of ABSA Bank readily conceded this during
argument before me. He tendered a further resolution.
[23] In the result, when Ms Williams deposed to the founding affidavit, she did
not have “signing authority” in terms of the signing resolutions before court.
Only by when she deposed to the replying affidavit, she had the necessary
authority in terms of the resolution.
[24] During argument Mr Eastes reiterated the point that a deponent to an
affidavit does not need authority to depose to the affidavit and that lacking
signing authority does not make the affidavit a nullity. Moreover, that Mr de
Heus’ failure to challenge Ms Williams’ authority to institute the proceedings
on behalf of ABSA Bank in terms of rule 7, was fatal to his case.
[25] Mr de Heus persisted with his argument regarding a lack of authority before
me. He raised an emotional plea that it does not feel good to get the feeling
one is being “stepped” on and being thrown the book at.
[26] In so far as the remainder of Mr de Heus’ opposition is concerned, ABSA
Bank in its reply noted the points or issues Mr de Heus raised. It argued
that Mr de Heus made various secondary conclusions, without any primary
facts upon which those conclusions are based. ABSA Bank argued that the
resultant effect of this is that the bulk of Mr de Heus’ answering affidavit is
inadmissible opinion evidence. It is simply the inadmissible opinion of Mr de
Heus. ABSA Bank further argued that the auction process is proper and
regulated by the rules. T hroughout this whole process, there has been
proper compliance with the rules.
[27] ABSA Bank further challenged the correctness of the Lightstone erf
valuation. It pointed out that in any event, the Lightstone property valuation
indicates that the expected value of the property is R1,160,000 , with a high,
being the best possible price it would obtain in open market, of R1,520,000.
It denied that the values would be achieved in a forced sale , where it is
common knowledge that properties sell for lower prices than their market
value.
DISCUSSION
(i) Rule 46A
[28] In terms of rule 46A(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.
[29] In terms of rule 46A(9)(b) , in deciding whether to set a reserve price and
the amount at which the reserve price 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
(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.”
[30] In terms of rule 46A(9)(c), if the reserve price is not achieved at a sale in
execution, the court “must”, on reconsideration of the factors in paragraph
(b) and its powers under this rule, order how execution is to proceed . The
court has a wide discretion in this regard.
[31] In the matter of ABSA Bank Limited v Mokebe and related cases 2018 (6)
SA 492 (GJ), the Full Court held as follows regarding the court’s duty in a
case of a primary residen ce to consider and, if appropriat e, impose a
reserve price for the sale in execution:
“[53] The determination of a reserve price is an issue which is
provided for in the Uniform Rules of Court. The sale of a
property, and in particular of a primary residence, for nominal
amounts of mone y occurs to the detriment of the defaulting
homeowner. Such a person, whether the poorest of the poor
or otherwise, not only loses his or her home but remains
indebted to a mortgagee for a substantial amount — even in
cases where the on -sale of the propert y occurs to buyers at
substantially higher prices than the prices realised during the
sale in execution.
……
[57] The courts' power and duty to impose a reserve price is
founded, inter alia, in s 26(3) of the Constitution. The process
of granting judgment against the homeowner is the first step
that may lead to his or her eviction from the property. Thus a
court is to consider all the relevant factors when declaring a
property specially executable at the behest of a bondholder.
It is thus incumbent upon the bank or bondholder to place 'all
relevant circumstances' before the court when it seeks an
order for execution. This, in our view, includes a proper
valuation of the property (under oath), the outstanding
valuation of the property (under oath), the outstanding
arrears, municipal accounts and like info rmation. This is not
to thwart the mortgagee's right to execution, to which it may
be entitled, but to secure a just and equitable outcome. It is
not a prohibition to realise a bank's security as is suggested
in the affidavit filed by Investec. The oversig ht duty is a far
cry from such perceived prohibition. This is based on s 1 of
the Constitution which places an obligation on all to promote
the value of human dignity, the achievement of equality and
the advancement of human rights and freedoms which would
include the application of s 26 of the Constitution by a court,
having regard to all the relevant circumstances, before
sanctioning the process that may lead to the ultimate eviction
from a home. This is not to hamper the ability of the
mortgagee to execu te but that very process requires
oversight.”
(ii) Ms Williams’ authority
[32] Ms Williams deposed to ABSA Bank’s affidavit in support of the application
on 26 February 2024. In paragraph 1.2 of the affidavit , Ms Williams said
that ABSA Bank duly authorised her to depose to the affidavit and to
represent ABSA Bank in these proceedings. Attached to the affidavit was
ABSA Bank’s resolution, entitled “ABSA resolution-signing authorities”. The
resolution was dated 1 July 2023. Ms Williams’ name ap pears from the
resolution. According to the resolution it would expire on 31 December
2023. In the result, by the time Ms Williams deposed to the founding
affidavit, the resolution had already expired.
[33] I accept that Mr de Heus, acting in person, felt himself at a disadvantage
regarding the legal arguments ABSA Bank raised in this regard. However, it
is trite that a deponent need s no authority to depose to an affidavit.
Streicher JA held in this regard as follows in Ganes and another v Telecom
Namibia Limited 2004 (3) SA 615 (SCA) at 624G-I:
“[19] There is no merit in the contention that Oosthuizen AJ erred
in finding that the proceedings were duly authorised. In the
founding affidavit filed on behalf of the respondent Hanke
said that he was duly authorised to depose to the affidavit. In
his answering affidavit the first appellant stated that he had
no knowledge as to whether Hanke was duly authorised to
depose to the founding affidavit on behalf of the respondent,
that he did not admit that Hanke was so authorised and that
he put the respondent to the proof thereof. In my view, it is
irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent to an affidavit in motion
proceedings need not be authorised by the part y concerned
to depose to the affidavit. It is the institution of the
proceedings and the prosecution thereof which must be
authorised. In the present case the proceedings were
instituted and prosecuted by a firm of attorneys purporting to
act on behalf of the respondent. In an affidavit filed together
with the notice of motion a Mr Kurz stated that he was a
director in the firm of attorneys acting on behalf of the
respondent and that such firm of attorneys was duly
appointed to represent the respondent. Tha t statement has
not been challenged by the appellants. It must, therefore, be
accepted that the institution of the proceedings was duly
authorised. In any event, Rule 7 provides a procedure to be
followed by a respondent who wishes to challenge the
authority of an attorney who instituted motion proceedings on
behalf of an applicant. The appellants did not avail
themselves of the procedure so provided. …”
[34] In so far as Mr de Heus’ challenge to Ms Williams’s authority to launch the
application is concerned, it is equally trite that he had to do so in terms of
the mechanisms provided for in rule 7(1).1
[35] I find that it is inconceivable that an application of this magnitude could
have been launched on behalf of ABSA Bank without the knowledge and
have been launched on behalf of ABSA Bank without the knowledge and
authority of ABSA Bank.
[36] In the result, I find that Mr de Heus’ challenge in this regard lacks merit.
1 See Brand JA in Unlawful Occupiers of the School Site v City of Johannesburg 2005 (4) SA
199 (SCA) at 205, paragraphs 15 and 16.
(iii) Mr de Heus’ argument on the merits
[37] In so far as Mr de Heus’ argument is concerned that this court should fix a
higher reserve price and order that the auction takes place by the Sheriff as
auctioneer, with the Registrar as the administrator of the auction, with the
auction being listed on the court roll, I find that Mr de Heus has failed to
make out a case in support of this.
[38] Mr de Heus has not presented any authority for this proposition. He has
also not provided any stat istical data , or evidence that would support his
suggestion of an unprecedented mode for the sale in execution.
[39] Moreover, Mr de Heus’ suggestion does not accord with the rules and it will
overburden the Registrar of this court. There is also no support for his
contention that this will result in a higher sale price being achieved.
[40] In any event, this court per Makhoba J on 1 August 2022 ordered that the
sale in execution should take place by Sheriff. I see no basis to interfere
with that finding , or to rewr ite the rules in so far as sales in execution are
concerned.
CONCLUSION
[41] As I see it ABSA Bank’s case for the reserve price to be reduced to
R600,000, and the contentions it raised, stand uncontested.
[42] Of particular concern to me is that ABSA Bank’s right to execute against the
property has now been delayed for years.
[43] At the same time, Mr de Heus has since 2 May 2018, i.e. for the past seven
years, not made any payment towards the arrear amount. The amount is
slowly but surely increasing.
[44] In all this time, Mr de Heus could have made alternative arrangements. It
was, of course, also open for him to arrange a private buyer, if the property
had the value which he contended for in his answering affidavit. His failure
to do so is significant.
[45] I therefore agree with Mr E astes’ submission on behalf of ABSA Bank that
both ABSA bank and Mr de Heus would be prejudiced by any further delay
in the matter and that interest charges and service fees will continue to
accrue to the outstanding balance. This will result in the equity in the
property being diminished.
[46] In the result, I grant the following orders.
ORDER
[1] It is confirmed that the reserve price of R750,000.00 set by the order of this
court dated 1 August 2022 was not met.
[2] The property known as:
ERF 5[...] BENONI TOWNSHIP
REGISTRATION DIVISION I.R., THE PROVINCE OF GAUTENG
MEASURING 595 (FIVE HUNDRED AND NINETY FIVE) SQUARE
METRES
HELD BY DEED OF TRANSFER T[…]
SUBJECT TO THE CONDITIONS THEREIN CONTAINED
(hereinafter referred to as “the property”) may be sold by the Sheriff at a
sale in execution with a reserve price of R600,000.00;
[3] The respondent is ordered to pay the costs of the application.
________________________________
H G A SNYMAN
Acting Judge of the High Court of
South Africa, Gauteng Division,
Pretoria
Heard in court: 18 August 2025
Delivered and uploaded to CaseLines: 3 September 2025
Appearances:
For the applicant: Adv J Eastes
Instructed by Delberg Attorneys Inc.
For the respondent: Mr C de Heus
In person