SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 3648/2020
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED. YES/NO
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff
(Registration Number: 1962/000738/06)
and
MBUYISENI TSHABALALA Defendant
(Identity Number: 7[…])
COURT ORDER
A. Summary judgement is granted for payment of the amount of R439 829-
21;
B. Interest is to be paid on the amount referred to immediately above at the
rate of 8.75% per annum from 13 November 2019 to date of payment as
provided for in the Loan Agreement, both dates inclusive;
C. It is ordered that the immovable property described as:
2
(1) A unit consisting of:
(a) Section No. 22 as shown and more fully described on
Sectional Plan No. 67/1988, in the scheme known as
Graceland One in respect of the land and building or
buildings situate at Northwold Extension 12 Township. Local
Authority: City of Johannesburg of which section the floor
area, according to the said Sectional Plan is 80 (eighty)
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 No. S[…] (“the Property”);
be declared executable for the aforesaid amounts;
D. An order is granted authorising the issuing of a writ of execution in terms
of Rul 46 as read with 46A for the attachment of the Property;
E. It is ordered that a reserve price of R NIL be set for the sale of the
property;
F. Costs of suit on the attorney and own client scale to be paid by the
respondent.
3
JUDGEMENT
INTRODUCTION
(1) This is an application for summary judgement based on a mortgage
loan which is secured by a first mortgage bond over a sectional title
property owned by the respondent.
(2) Summons was already issued in 2020 and the amount allegedly owed
by the respondent in respect of unpaid mortgage instalments, municipal
rates and taxed, as well as levies and other charges owing to the body
corporate, have increased significantly since 2020 if regard is had to the
information made available by the applicant in 2025.
(3) The respondent’s personal and employment circumstances seem to
have changed, mostly for the better, since he delivered his plea on 15
September 2022, but his attorney submitted at the hearing in 2025 that
he is over-indebted.
(4) From the documents filed on Caselines it appears that the matter was in
the unopposed motion roll of 12 October 2023. On that date Strijdom J
postponed the matter sine die, ordered the matter to be re- enrolled in
the opposed motion roll and the respondent was directed to ensure that
his attorneys of record officially place themselves on record within 14
days from the grant of that order. The respondent was directed to
4
ensure that his attorneys of record are present in court on the next
hearing date.1
(5) At the hearing date in 2025, the respondent’s attorney was present in
court, but the respondent was personally not present. I asked the
respondent’s attorney whether he was ready to proceed although he
has never placed himself on record as directed by Strijdom J on
23 October 2023. He did not object. He was willing to provide any
information that might be required by the court in terms of Rule 46A(3),
(5), (8) and (9) and generally for the court to exercise its judicial
oversight function properly.
LITIGATION HISTORY
(6) On 16 September 2008 the parties entered into a Loan Agreement
2 for
a loan amount which was utilised by the respondent to acquire the
mortgaged property.
(7) The Loan Agreement was to endure for a period of 240 months.
3
(8) The Loan Agreement was subject to terms and conditions, including
that a mortgage bond be registered in favour of the plaintiff for an
amount of R580 000-00 over the immovable property described as:
1 Caselines, 029-1 to 2.
2 Caselines, Particulars of Claim (“PoC”), para 4, 001-6.
3 Caselines, PoC, para 5.4, 001-7.
5
Certain: (1) A unit consisting of: (a) Section No. 22 as shown and more
fully described on Sectional Plan No. 67/1988, in the scheme known as
GRACELAND ONE in respect of the land and buildings situate at
Northwold Extension 12 Township, Local Authority: City of
Johannesburg of which section the floor area, according to the said
Sectional Plan is 80 (EIGHT Y) square metres in ex tent; and (b) an
undivided share in the common property in accordance with the
participation quota as endorsed on the said sectional plan, held by
Deed of Transfer No. S[…] (hereinafter referred to as “the property”).
4
(9) The defendant chose three different addresses as the address es at
which notices and documents in any legal proceedings against the
defendant, including notices of attachment of the property , could be
served.
(10) Default notices were sent by registered mail to all three addresses in
terms of section 129, read with section 130, of the National Credit Act
34 of 2005.
5 As at the date of this notice the arrears were R44 495-85
and the total indebtedness under the Loan Agreement was
R439 829-21.
6
4 Caselines, PoC, para 5.9, 001-7 to 8.
5 Caselines, Annexure “PoC4”, 001-57 to 001-61.
6 Caselines, PoC, paras 12.1-12.2, 001-11.
6
(11) The respondent failed to remedy his breach of the Loan Agreement and
the applicant was accordingly entitled to claim the total of all amounts
owing by the respondent under the Loan Agreement.
7
(12) The applicant avers in the particulars of claim that it made various
attempts to assist the respondent to regularise his arrears position
under the Loan Agreement.
(13) In the particulars of claim the applicant claimed all amounts outstanding
under the Loan Agreement, with interest thereon, that the property be
declared executable for the amounts claimed, an order authorising the
issuing of a warrant of execution in terms of Rule 46, read with Rule
46A, for attachment of the property , that a reserve price be set by the
court for the sale of the property at a sale in execution, at a value to be
determined by the court, and costs on an attorney and client scale.
(14) The combined summons was served on 13 February 2020. The
respondent (defendant in the action) served a notice of intention to
defend and delivered a plea on 14 September 2022.
8
(15) On 6 October 2022 the applicant served an application for summary
judgement on the respondent. 9 By that time the arrears on the Loan
7 Caselines, PoC, 18.1-18.4, 001-13 to 001-14.
8 Caselines, 006-1 to 006-14.
9 Caselines, 007-1 to 007-18.
7
Agreement was R266 373-08 according to a certificate of balance dated
6 October 2022.10
(16) On a consideration of the plea filed, the respondent pleaded that he
was unemployed since 2014 until 2022, he denied having received a
section 129 letter, read with section 130, in terms of the NCA and
insisted that service of the summons was premature.
11 The respondent
denied the correctness of the Certificate of Balance and described it as
“mythical” and that it is unestablished how the balance was computed.12
(17) The respondent has, however, not pleaded any facts to substantiate his
bare denial of the amount owed according to the applicant.
(18) The applicant has pleaded, in its particulars of claim , all the averments
necessary to comply with the National Credit Act as well as those
required by section 26 of the Constitution and those in Rule 46(1)(a)(ii)
in respect of the property being declared executable, as the property
concerned is the primary residence of the respondent.
(19) The respondent has raised as a defence in his plea that the applicant
has not complied with section 129 (read with section 130) of the NCA.
13
He denies being “associated” with any addresses to which the section
129 NCA default notices were sent. The applicant referred to the
following:
10 Caselines, Annexure “SJ2”, 007-21.
11 Caselines, Plea, para 13, 006-5.
12 Caselines, Plea, para 16, 006-5.
13 Caselines, Defendant’s Plea, para 13, 006-4 to 5.
8
(19.1) In the Loan Agreement the respondent chose 3 Greenwood,
Niven Avenue, Bryanston as his address for service of legal
notices.
14
(19.2) In the mortgage bond the respondent chose 589, 5 th Road,
Northwold Extension 12, Randburg and 675 Mpela Street,
Dube as his domicilium addresses.15
(19.3) 2[…] G[...], N […], Randburg is the respondent’s residential
and primary address.16
(20) The respondent denied that the section 129 notices were never
“delivered”. The applicant submitted that this defence does not rais e an
issue for trial as the notices were dispatched to the respondent’s
domicilium addresses and that it had complied with the requirements
laid down for credit providers in relation to section 129 Notices in
Sebola v Standard Bank.17 The applicant:
(20.1) Sent the section 129 default notices by registered mail to the
respondent’s domicilium addresses;
(20.2) The Section 129 default notices were delivered to the correct
post office;
14 Annexure “POC1”, Loan Agreement, Clause 17, 001-38.
15 Mortgage Bond, Annexure “POC2”, Clause 13, 001-54.
16 Answering Affidavit, paras 48049, 008-18.
17 2012 (5) SA 142 (CC).
9
(20.3) A “track and trace” report has been annexed to the
particulars of claim; and
(20.4) The necessary allegations had been made in the particulars
of claim.
(21) Once the applicant has satisfied the above requirements, any
contention by the respondent that a Section 129 default notice was not
dispatched, is without merit and does not raise an issue for trial.
(22) Another defence raised by the respondent, having not denied to be in
default in terms of the Loan Agreement, is merely that he does not
accept that he has been in default to the “… exaggerated extent that the
applicant exacts”
18 and also claims that he serviced the loan “whenever
he could”.19 No facts were pleaded in respect of these defences.
(23) The respondent also claimed that the Certificate of Balance has “untrue
contents” and he also denies that the Certificate of Balance is proof of
amounts owed.
(24) The applicant submitted that the said defence does not raise an issue
for trial for the following reasons:
(24.1) When entering into the Loan Agreement and m ortgaging the
immovable property, the respondent agreed that a certificate
18 Answering Affidavit, para 23, 008-9.
19 Answering Affidavit, para 4, 008-5.
10
of balance will on its mere production be sufficient proof of
any amount due or owing unless the contrary is proved.20
(24.2) The respondent does not deny the mortgage bond or its
terms.
21
(25) In any event, denying the Certificate of Balance or the amount claimed
without providing a factual basis is not enough to withstand the granting
of summary judgement. In NPGS Protection and Security Services
CC v First Rand Bank Limited
22 it was held at paragraph 11:
“Rule 32(3) of the Uniform Rules requires an opposing affidavit
to disclose fully the nature and grounds of the defence and the
material facts relied upon therefor. To stave off summary
judgement, a defendant cannot contend him - or herself with
bald denials, for example, that it is not clear how the amount
claimed was made up. Something more is required . If a
defendant disputes the amount claimed, he or she should say
so and set out a factual basis for such denial. This could be
done by giving examples of payments made by them which
have not been credited to their account.”
(26) The respondent pleaded that the applicant has brought the summary
judgement application to dispossess the respondent of his
20 Mortgage Bond, Annexure “POC2”, clause 5, 001-51.
21 Answering Affidavit, paras 10-13, 008-6.
22 [2019] JOL 44849 (SCA).
11
Constitutional right to housing as the property in question is the
respondent’s primary and only abode.23
(27) The respondent also contends that, as at the date of his answering
affidavit24 he was poverty stricken, he relied on a meagre disability pay
to sustain himself and granting judgement against him will render him
homeless.25
(28) It transpired at the hearing of the matter in 2025 that the respondent’s
position has improved financially. That emerged from an email letter he
himself uploaded onto Caselines
26 a few days before the hearing. This
aspect was canvassed with his attorney when the court considered the
prescribed factors under Rule 46A(2). This will be dealt with later.
(29) The respondent further pleaded bare denials or that he had no
knowledge of the applicant’s allegations or that he regards those
allegations with suspicion. Rule 32(3)(b) requires an affidavit filed in
opposition to summary judgement to disclose fully the nature and
grounds of the defence and the material facts relied upon therefore. It is
found that these bare denials by the respondent did not raise any triable
issue and are not sufficient to resist summary judgement.
(30) The affidavit filed in support of the application for summary judgement
complied with the requirements under Rule 32 in that the applicant
23 Defendant’s Answering Affidavit, para 27, 011-11.
24 As at 28 December 2022, 011-21.
25 Answering Affidavit, para 30, 011-12.
26 Caselines 039-1.
12
launched the application within 15 days after delivery of the
respondent’s plea and the applicant’s deponent has:
(30.1) Verified the cause of action and the amount claimed;
(30.2) Identified the facts upon which the claim is based; and
(30.3) Explained briefly why the defences as pleaded do not raise
any issue for trial.
(31) It is therefore found that the applicant is entitled to summary judgement
as claimed in the particulars of claim.
EXECUTABILITY OF THE PROPERTY
(32) The applicant claimed relief that the respondent’s property be declared
executable for the amounts claimed as owing in the particulars of claim,
that an order be issued for a warrant of execution in terms of Rule 46,
as read with Rule 46A, for the attachment of the respondent’s property
and that a reserve price be set for the sale of the property at a sale in
execution at a value to be determined by the court.
27
(33) The respondent submitted that the applicant f ailed to provide evidence
of the market value of the property and the amount owing to the local
authority. These issues are to be considered under Rule 46A(5)(a) and
(c). These will be considered later in the judgement. The respondent
objected to his property being declared executable as he has nowhere
27 Caselines, Particulars of Claim, paras 22.3-22.5, 001-15 to 16.
13
to go should he be evicted. 28 He accused the applicant of having an
ulterior motive and of seemingly employing devious tactics in seeking
executability of the respondent’s primary residence. He submitted that
the applicant is inspired by profit and has seen the executability of the
respondent’s property as a shortcut to achieving that sinister objective.
The respondent further submitted that the applicant will not suffer any
prejudice whatsoever should the respondent’s primary resident not be
declared executable. The respondent submitted that he will be rendered
destitute should he be dispossessed of his primary residence.
29
(34) As will become evident hereunder, by 2025, when the hearing in this
matter took place, the facts were different from 2022 when the
answering affidavit was signed and commissioned. The debt has
increased significantly and a large amount, albeit in dispute, is owing to
the body corporate of Graceland 1 Scheme, a significant amount was
owing to the City of Johannesburg for property rates and other charges ,
the total of which amounts exceeded the market value of the property.
(35) The applicant submitted that an order declaring the immovable property
executable, is in this case warranted taking into account that:
(35.1) The respondent’s attention was drawn to the relevant
provisions of the Constitution;
28 Answering Affidavit, 011-13.
29 Answering Affidavit, para 37, 011-15.
14
(35.2) There has been proper service of the application, including
service on the local authority and the body corporate; and
(35.3) The application complied with Rule 46A(5) as all the
prescribed supporting documents were annexed thereto. 30
These documents include a Lightstone valuation 31 and an
independent valuation.32
(36) Further documents were annexed to the application such as statement
of the mortgage account, 33 a municipal account (which also reflected
the municipal valuation of the property), 34 and a payment profile of the
respondent’s mortgage accounts detailing all payments made by him.
(37) The applicant complied with the requirements of Rule 46A(5) in respect
of a primary residential property. It relied on the judgement of the
Constitutional Court in Jaftha v Schoeman
35 where it was held that:
“If the judgement debtor willingly put his or her house up in
some or other manner as security for the debt, a sale in
execution should ordinarily be permitted where there has not
been an abuse of court procedure.”
CONSIDERATION OF RULE 46A
30 Annexures “SJ6” and “SJ7”, 008-46.
31 “SJ6”, 007-43 to 50.
32 “SJ7”, 007-51 to 54.
33 “SJ4”, 007-28 to 42.
34 “SJ5”, 007-43 to 44.
35 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC)
at [58].
15
(38) In Bestbier and Others v Nedbank Lt 36 the Constitutional Cour t
considered the scope, purpose and interpretation of Rule 46A, the
history of which may be traced back to the Jafta- judgement referred to
above. The purpose of Rule 46A is for the courts to protect the rights
enshrined in section 26 of the Constitution and to exercise judicial
oversight in the execution process. It is important for the court to tailor a
remedy after having regard to the facts of a case and against the fact
that execution is not an odious thing, provided that the peremptory
provisions of Rule 46A are followed. The Constitutional Court then
considered the provisions of Rule 46A to consider whether and how
they were applicable to the facts of that matter.
(39) What made this matter complicated is that the factors placed before the
court by the applicant in the affidavit supporting summary judgement,
were stated as at 1 October 2022. The hearing of the matter took place
in J anuary 2025 and updated financial information was provided. The
information as at 1 October 2022 will be dealt first and thereafter the
2025 information. What has become clear was that the financial position
of the respondent had become much worse over that period and that
prompted the respondent’s attorney to submit at the hearing that his
client is “over-indebted”. That is relevant in considering the provisions of
Rule 46A(2)(a)(iii) as to whether there are alternative means by the
respondent, as judgement debtor, of satisfying the judgement debt
36 2024 (4) SA 331 (CC) paras [54]-[65].
16
other than by execution against the judgement debtor’s primary
residence. No alternative means were put forward by any party.
(40) The applicant placed the following factors before the court as at
1 October 2022.
(40.1) The instalments payable by the respondent in terms of the
Loan Agreement amount to R8 785-82 (the instalments).
37
(40.2) The instalments in arrears as at 1 October 2022 amount to
R266 373-08, which means that the respondent was
approximately 30.31 months in arrears with payment of his
monthly instalments.
38
(40.3) The last payment received from the respondent was an
amount of R6 590-85 on 3 May 2021.
39
(40.4) The full amount owing by the respondent to the applicant,
and which was secured by the mortgage bond, is the amount
of R531 057-59.
40
(41) The applicant submitted that it is unlikely that the respondent will be
willing or able to satisfy the judgement debt by way of payment to the
applicant for the above reasons and that there is no alternative or less
37 Caselines, para 34.1, 007-12.
38 Caselines, paras 34.2 and 34.2, 007-12.
39 Caselines, para 34.4, 007-12.
40 Caselines, para 34.5, 007-13.
17
invasive means available for satisfying the judgement debt. 41 The
respondent referred to this submission as “utterly confounding” and
then stated that he cannot admit or deny it. 42 He did not plead any facts
to assist the court to understand his plea.
(42) The applicant submitted that the respondent’s right of access to housing
as envisaged in section 26(1) of the Constitution should be weighed
against the applicant’s rights against a property specially mortgaged to
it as security, and on the basis that the respondent expressly agreed
that the applicant could foreclose on the property in the event that the
respondent is in default with his obligations in terms of the Loan
Agreement.
43 The respondent denied this submission.
(43) The applicant submitted that the bond serves as a continuing covering
security for the obligations of the respondent and that the applicant
would not have lent and advanced the monies for which judgement is
sought in the absence of the registration of the bond.
44 The respondent
denied this submission in a bare denial.
(44) The applicant further submitted that it was not seeking the executability
order with an ulterior motive, but does so to recover a debt that is due,
owing and payable to it. 45 The respondent pleaded that the applicant
had an ulterior motive and was inspired by profit and that it would suffer
41 Caselines, para 35, 007-13.
42 Caselines, at 011-14.
43 Caselines, para 36, 007-13.
44 Caselines, para 37, 007-13.
45 Caselines, para 38, 007-13.
18
no prejudice if a declaration of executability was not made. 46 This
aspect was not pursued further by the respondent in argument at the
hearing.
(45) In support of its application for summary judgement, the applicant
annexed to the founding affidavit, the following in support of the
financial information stated in the affidavit:
(45.1) A certificate of balance 47 which confirmed the total
indebtedness of the respondent.
(45.2) A payment profile statement 48 which recorded each and
every payment made by the respondent from 31 July 2008 to
3 October 2022. This statement was not disputed.
(45.3) A statement of the bond account 49 of the respondent
indicating all debits and credits on the account from
registration of the bond up to 3 October 2022. This statement
was not disputed.
(46) Within the above context, the applicant placed further factors and
information before the court to be taken into account when determining
a reserve price for a sale in execution, should it be deemed appropriate
to do so.
46 Caselines, para 37, 011-15.
47 Caselines, Annexure “SJ2”, 007-21.
48 Caselines, Annexure “SJ3”, 007-22 to 27.
49 Caselines, Annexure “SJ4”, 007-28 to 42.
19
(47) A copy of a tax invoice50 from the City of Johannesburg in respect of the
respondent’s property was annexed to the affidavit showing a municipal
valuation of R700 000-00 and an amount owing of R22 446-09 as at
7 September 2022. The monthly charges were R455- 39 excluding VAT
and the arears outstanding for more than 90 days an amount of
R20 406-62.
(48) A Lightstone Valuation51 was annexed indicating:
(48.1) The property zoned as a residential property;
(48.2) The estimated higher tier value of R820 000-00;
(48.3) The municipal value of the property is R700 000-00;
(48.4) The estimated lower tier value of the property is
R670 000-00;
(48.5) The estimated overall value of the property is R720 000-00’
(48.6) The aforesaid estimated values of the property are based on
an accuracy score of 92%; and
(48.7) The comparative sales within the area of the property.
50 Caselines, Annexure “SJ5”, 007-14.
51 Caselines, Annexure “SJ6”, 007-45 to 50.
20
(49) A current and independent market valuation in respect of the
respondent’s property was provided52 indicating that:
(49.1) The property is zoned for residential purposes;
(49.2) The market value of the property is estimated at
R670 000-00; and
(49.3) The forced sale value of the property is R536 000-00.
(50) The applicant submitted that a reserve price could be calculated as
follows:53
Forced Sale Value: R536 000-00
Less: Outstanding Rates and Taxes: R22 446-09
Proposed reserve price: R513 553.91
(51) The deponent to the founding affidavit declared that to the applicant’s
knowledge the property was not obtained by way of a state subsidy.
(52) In respect of the applicant’s submissions on the calculation of the
reserve price, the respondent simply pleaded that the applicant’s
calculation should not be entertained.
54
(53) The applicant further submitted that there were no other bonds
registered over the respondent’s property and thus no other secured
creditor.
52 Caselines, Annexure “SJ7”, 007-51 to 54.
53 Caselines, para 44, 007-15.
54 Caselines, Answering Affidavit, para 43, 011-17.
21
(54) The applicant then summarised the factors pleaded by the
respondent,55 and also the applicant’s submissions in respect thereof .
They are not dealt with here due to what was part of the information
before the court some two-and-a half years later in 2025.
(55) The applicant submitted that, in weighing up the rights of the applicant
and respondent:
(55.1) The respondent’s inability to afford the property and being
unable to pray what is lawfully due to the applicant and being
unable to pay and keep the liabilities associated with the
property up to date should be considered.
(55.2) It was submitted that there is no other satisfactory means of
satisfying the respondent’s indebtedness to the applicant and
that an order should be granted to declare the property
specially executable;
(55.3) The applicant will be severely prejudiced if it is not permitted
to execute against the property as it will have no other
means of recovering the debt.
56
SUBMISSIONS AND INFORMATION AT THE HEARING
(56) At the hearing in January 2025 Mr Phambuka appeared for the
applicant. Mr Mukwev ho of Mukwevho Mokgola Inc . Attorneys
55 Caselines, paras 49-54, 00716 to 17.
56 Caselines, para 55, 007-17 to 18.
22
appeared for the respondent, despite the fact that the said attorneys
had not placed themselves officially on record as ordered by Strijdom J
on 12 October 2023.
57 At this hearing the respondent did not attend the
proceedings in court . I enquired from Mr Mukwevho whether he would
be able to address the court and answer any questions which the court
may want to ask when considering the factors prescribed in Rule 46A(8)
and (9). When he answered in the affirmative, he was allowed to
address the court on behalf of the respondent.
(57) Prior to the hearing, the applicant uploaded onto Caselines certain
updated information as follows:
(57.1) A Certificate of Balance dated 16 January 2025 indicating the
indebtedness of the respondent to be an amount of
R647 470-44 as at that date and that the monthly instalment
at that date was R16 766-61.
58
(57.2) An account statement from the applicant up to 3 January
2025 with the amount owing as per the Certificate of Balance
of R647 470-44. This statement indicates that no monthly
instalment was paid since 2019, save for an amount of
R5 000-00 on 20 November 2024 and an amount of
R5 500-00 on 14 December 2024.
59
57 Caselines, Court Order, 029-1 and 2.
58 Caselines, 038-18.
59 Caselines, 038-1 to 17.
23
(57.3) A statement 60 issued on behalf of the Body Corporate of
Graceland 1 by Whitfield Property Management indicating an
amount due by the respondent to the Body Corporate as at
1 February 2025 for levies and electricity of R1 897 620-37.
(57.4) A statement f rom the local authority indicating that at
11 January 2025 an amount of R36 692-23 was due and
payable.61
(58) Counsel for the applicant dealt with the claims and the defences raised
and submitted that the respondent did not raise any triable issue in
opposition to the application for summary judgement. He pointed out
that it was now the third time the matter is in court and that the
indebtedness of the respondent increased significantly since summons
was issued in 2020. From the statement filed by the applicant it was
clear that each and every debit order since 2018 was reversed.
(59) The applicant submitted that in view of the indebtedness of the
respondent and the amounts owing to the applicant, the local authority
and the body corporate in 2025, the setting of a reserve price was a
futile exercise as there was no equity in the property . In all probability
no bids would be received at a sale in execution as the purchaser would
have to pay the amounts owing to the local authority and the body
60 Caselines, 040-4 to 17.
61 Caselines, 038-23 to 24.
24
corporate in terms of the prescribed conditions of sale, the total of which
far exceeded even the market value of the property.
(60) When the court considered whether a reserve price should be set, the
dicta in the judgements of Standard Bank of South Africa Ltd v
Hendricks and Related Cases
62 and Absa Bank Ltd v Mokebe and
Related Cases63 were taken into account that where a court grants an
order for execution against the primary residence of a debtor, saving
exceptional circumstances it is obliged to set a reserve price. Such
exceptional circumstances are present in this matter and therefore no
reserve price is set. These circumstances have been set out above,
including that the respondent’s total indebtedness far exceeds even the
market value of his property.
(61) Mr Mukwevho submitted on behalf of the respondent that he remains
employed and could pay the amount owing to the applicant in eight
equal monthly instalments.
64 The respondent had made an offer to the
applicant on 9 October 2023, which offer was not accepted.
(62) Mr Muk wevho nevertheless submitted that the respondent is over -
indebted, after having heard the argument on behalf of the applicant.
He contended that the levy calculation was incorrect and that the
amount owing was R200 000-00 less.
62 2019 (2) SA 620 (WCC) at 641 C-D.
63 2018 (6) SA 492 (GJ).
64 Caselines, Supplementary Heads of Argument, para 5.4, 034-2.
25
(63) Even if the court gives the respondent the benefit of the doubt and
reduce the amount owing to the body corporate by R200 000-00, the
balance of approximately R1 600 000-00 far exceeds the market value
of the respondent’s property.
(64) On a question from the court, Mr Mukwevho replied that the respondent
and his brother reside in the property concerned. No further information
was made available as to whether the brother could contribute to the
expenses in respect of the property.
65
(65) The court asked Mr Mukwevho whether he had received an email letter
addressed to him a few days prior to the hearing and which letter was
uploaded onto Caselines by the respondent personally.
66 He confirmed
that he did receive it. The email reads as follows:
“Hi Phathu
Thanks for taking my call. Could you please negotiate with
Standard Bank that I repay R10 000-00 at the moment until I
get back on my feet. The current instalment of just over
R15 000-00 is unaffordable. Otherwise that’s what our defence
will be that I did not just leave the bond as it is, but I suggested
reduced premiums and that we ask the court to reduce the
premiums.
Thanks in advance
65 See Rule 46A(9)(b)(VI).
66 Caselines, 039-1.
26
Mbuyi”
(66) Mr Mukwevho confirmed that he had not made the offer to the applicant
as instructed by his client. He also did not request that monthly
instalments be reduced.
(67) The court put it to Mr Mukwevho that if his client could afford to spend
R10 000-00 per month on residential accommodation, the respondent
would not be homeless if his property was sold in execution and that he
could rent reasonabl e alternative accommodation for R10 000-00. He
agreed with the court.
(68) In reply counsel for the applicant pointed out that no allegation of an
abuse of court process was made by the respondent. He also submitted
that the mortgage bond made provision for executability.
(69) An interim order was issued at the end of the proceedings that the
parties had two more days to upload information and submissions to
verify the amount outstanding in regard to amounts payable to the body
corporate, including any judgement of the magistrates court to which
reference was made in argument.
(70) Well after the deadline, and some four months later, the respondent ’s
attorney uploaded supplementary submissions to the affect that a claim
of R184 159-17 by the body corporate against the respondent was
dismissed and that the body corporate riled an appeal against the
27
dismissal of that claim. The submission was made that the court could
not set a reserve price whilst there are matters pending which
challenged the levies.
67
(71) Having considered all the facts set out in Rule 46A(9), and the
information set out above, the court has come to the conclusion that it is
most likely that no offer will be received should a reserve price be set.
Arranging a sale in execution in accordance with Rule 46 at a reserve
price will simply cause more time to pass by without any likelihood of an
offer being received, which will just cause further costs being incurred.
This will cause prejudice to the applicant to pay the costs of the sale in
execution and it will prejudice the respondent in that his indebtedness to
the applicant, the local authority and the body corporate will simply
further increase significantly without the possibility that there may be
value for him to be obtained from a sale when his indebtedness far
exceeds even the market value of the property.
(72) The order to be issued will consequently make provision for the
execution of and attachment of the property, with a sale in execution to
be held at a R NIL reserve price. Any purchaser will have to pay the
amounts owing to the local authority and the body corporate.
(73) Consequently, the order set out above, is made.
67 Caselines, 043-1 to 2.
28
LM du Plessis
Acting Judge of the High Court
Gauteng Division
Johannesburg
REPRESENTATION
For the applicant
Counsel: Adv N Phambuka
Attorneys: Ramsay Webber Inc.
Respondent
Mr Phathutshedzo Mukwevho
Attorneys: Mukwevho Mokgola Inc. Attorneys
Date of Hearing: 23 January 2025
Date of Judgement: 25 September 2025