SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, MAKHANDA)
Not reportable
Case no. 98/2016
In the matter between:
BONGIWE FAVOURITE MBUWAKO Applicant
and
NEDBANK LIMITED First respondent
SHERIFF OF THE HIGH COURT, MTHATHA Second respondent
REGISTRAR OF DEEDS, MTHATHA Third respondent
PURCHASER OF ERF 2[...], MTHATHA Fourth respondent
Not reportable
Case no. 2925/2023
In the matter between:
NEDBANK LIMITED Applicant
and
BONGIWE FAVOURITE MBUWAKO Respondent
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___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] The matters described above are closely intertwined and can be conveniently
decided in terms of a single judgment. The applicant in the first matter (and the
respondent in the second matter) is a medical practitioner, Dr Mbuwako, who resides
at 4 […] W[...] Drive, Fort Gale, Mthatha, registered as erf 2[...], Mthatha (‘the
property’). She seeks, inter alia, an order that the attachment and sale in execution
of the property be declared null and void, and that the subsequent registration of
transfer be reversed an d that the title therein reverts to her. The applicant in the
second matter (and the first respondent in the first matter) seeks, inter alia, an order
evicting Dr Mbuwako from the property.
Background
[2] The underlying facts are mostly common cause. Fr om the papers, it is
apparent that Nedbank lent an amount of R 1 660 683 to Dr Mbuwako on 1
September 2012 for the purchase of the property but she fell behind in repayments.
Consequently, Nedbank obtained judgment against her on 22 March 2017 in the
amount of R 1 687 443. The property was attached on 12 July 2017. The parties
reached agreement to stave off a sale in execution, only for Dr Mbuwako to fail once
more in the fulfilment of her obligations. The property was sold in execution to
Nedbank on 17 August 2018 for the sum of R 1 300 000, which was used to reduce
the outstanding debt. Dr Mbuwako remained in occupation, despite demand that she
vacates the property. Nedbank subsequently launched eviction proceedings.
[3] On 11 December 2023, Dr Mbuwako’s a ttorneys wrote to Nedbank’s
attorneys. They indicated that she intended to pay the amount of R 1 687 443 and
intended to have the property transferred back to her. They also requested that
Nedbank’s eviction application be removed from the court roll, pending settlement. At
that stage, Dr Mbuwako still owed Nedbank the sum of R 1 653 501, comprising the
capital amount, accumulated interest, and costs. 1 Nedbank’s attorneys, represented
by Mr Louis Schoeman, responded on 19 December 2023 as follows:
‘1. The litigation for your client’s eviction from the property will not be withdrawn or
suspended and this will only be done if your client pays the amount referred to below
timeously and if, thereafter, an agreement of sale, as envisaged below, is concluded
between the parties timeously.
2. My client will accept the sum of R 1 687 443 in full and final settlement of its claims
against your client, this sum to be paid into my firm’s trust account, the details
whereof are . . . subject to the following:
2.1. The settlement amount is to be paid to my client by no later than the 4 th of
January 2024.
2.2. Payment of the abovementioned amount will not entitle your client to transfer
of the relevant property to her.
2.3. My client will transfer the property to your client pursuant to the conclusion of
an appropriate agreement of sale between the parties. The purchase price of
the property is to be equivalent to what it has cost my client to acquire it,
namely R 1 400 656, which is arrived at as follows:
Purchase price paid by my client R 1 300 000
Transfer duty and conveyancing costs R 100 656
Total R 1 400 656
1 Ms Moodley indicated that the amount was constituted as follows: R 835 941 (capital and accumulated
interest) + R 817 560 (costs) = R 1 653 501.
2.4. If the settlement amount is not paid timeously or, that having been done, an
agreement of sale in respect of the property has not been concluded between
the parties by the 31 st of January 2024, my client will proceed to sell the
property on the open market, and to evict your client from it. If the agreement
of sale is subject to any suspensive conditions and these are not fulfilled by
the 28th of February 2024, the eviction proceedings will continue.
2.5. The fact that the parties may be negotiating does not affect your client’s
obligation to timeously file her papers in opposition to the application for her
eviction.’
[4] On 5 January 2024, Dr Mbuwako arranged for payment. Her attorneys notified
Nedbank’s attorneys on 8 January 2024 and requested that the eviction application
be removed from the roll. Mr Schoeman responded on 12 January 2024,
acknowledging receipt of payment, but emphasising that there was no relationshi p
between the parties. He stated that Dr Mbuwako was an unlawful occupier and a
potential buyer like anyone else, but who would be required to pay only the purchase
price indicated in his earlier correspondence. The eviction application would proceed
unless Dr Mbuwako concluded an acceptable agreement of sale by the stipulated
deadline. Her attorneys replied on 14 January 2024, offering a purchase price of R
1 000 000 on behalf of their client and requesting that eviction proceedings be
suspended. To this, Mr Schoeman indicated on 18 January 2024 that there would be
no further negotiation, except for what was necessary to ensure the sale of the
property. On 7 February 2024, Dr Mbuwako’s attorneys recorded that their client had
already made payment of R 1 687 443 ad that Nedbank’s attorneys had stipulated a
deadline of 31 January 2024 by which the deed of sale was to have been concluded;
they had not, however, received the document in question. They requested a copy,
as well as a meeting so that agreement coul d be reached on the terms of the sale
as well as a meeting so that agreement coul d be reached on the terms of the sale
and the amount that Dr Mbuwako still owed, if any. This met with Mr Schoeman’s
response on 9 February 2024, stating that Dr Mbuwako had given no prior indication
that she wished to purchase the property. He went on to say the following:
‘1. By the close of business on the 15 th instant, your client is to consent formally to an
order for her eviction . . . An order for your client’s eviction will be taken on the 20 th
instant by agreement . It will be used to evict your cli ent and all who occupy the
property only if, by the 29 th instant, there is not in existence a binding deed of sale
between the parties or, if by that date there is a deed of sale in existence and that
deed of sale is subject to suspensive conditions, the suspensive conditions have not
all been fulfilled by the 29th of March this year.
2. Your client will be presented with an offer presently. The terms of the sale, apart from
the formal ones, will be:
2.1. a purchase price of R 1 400 656;
2.2. the offer will be open for acceptance by your client until the close of business
on the . . .
2.3. if the sale is subject to any suspensive conditions, your client will be afforded
until the 29th of March 2023 days to fulfil them;
2.4. the transfer will be dealt with by my firm.
Please make clear, by return email, whether your client accepts the terms set forth above or
not. If she does not, the matter must simply proceed . . .’2
[5] On 13 February 2024, Nedbank’s’ attorneys sent a deed of sale to Dr
Mbuwako’s attorneys for consideration, while emphasising that the eviction
application would still proceed unless a binding deed of sale was concluded. Dr
Mbuwako’s attorneys sent a letter on 14 February 2024, referring to Mr Schoeman’s
letter of 19 December 2023 and confirming that the only outstanding issue was
completion of the deed of sale. Their client sought, however, a breakdown of how
Nedbank had determined the settlement amount of R 1 687 443, as well as the
purchase price of R 1 400 656. Consequently, the attorneys in question requested
that the eviction application be held in abeyance, pending agreement on the
purchase price and the conclusion of the deed of sale. Mr Schoeman resp onded on
16 February 2024, indicating that Dr Mbuwako had had sufficient time within which to
execute and return the deed of sale; the eviction application would not be
suspended.
[6] On 19 February 2024, Nedbank’s attorneys received a deed of sale execut ed
by the purchaser, reflected as BF Medicare (Pty) Ltd. The deed of sale was
unacceptable because, inter alia, it omitted to indicate whether mortgage finance
would be required. This prompted Nedbank’s attorneys to send a fresh deed of sale
would be required. This prompted Nedbank’s attorneys to send a fresh deed of sale
to Dr Mbuwako’ s attorneys on 21 February 2024, including instructions on how to
2 Sic. Original emphasis retained.
complete the document in relation to mortgage finance. Dr Mbuwako signed it on 28
February 2024, Ms Moodley signed it on behalf of Nedbank on 4 March 2024, and a
copy of the document was sen t to the former’s attorneys on 7 March 2024. They
contacted Nedbank’s attorneys on 8 April 2024, however, saying that they never
received the deed of sale; they confirmed that Dr Mbuwako required mortgage
finance. Mr Schoeman responded on 9 May 2024, attac hing a deed of sale executed
by Nedbank and requesting its completion and return if BF Medicare (Pty) Ltd still
wished to purchase the property. He indicated that, in terms thereof, the purchaser
was afforded a month within which to secure mortgage finance ; he also indicated
that the eviction application would proceed until Nedbank was satisfied that the
property would indeed be transferred to BF Medicare (Pty) Ltd. Dr Mbuwako’s
attorneys did not reply.
[7] On 7 June 2024, Dr Mbuwako’s new attorneys sent co rrespondence to
Nedbank’s attorneys, requesting a copy of the papers upon which Nedbank originally
secured judgment. Mr Schoeman responded on 13 June 2024, saying that the
papers could be obtained from Dr Mbuwako’s previous attorneys. The debt had,
nonetheless, been settled; the only remaining issue was whether Dr Mbuwako or BF
Medicare (Pty) Ltd still intended to purchase the property. This was followed by a
letter on 20 June 2024, under which Mr Schoeman pointed out that the time within
which the purchase r was required to secure mortgage finance had lapsed.
Consequently, the most recent deed of sale was no longer acceptable; the eviction
application would proceed. Dr Mbuwako’s new attorneys did not reply.
Issues for determination
[8] The main question co nfronting the court pertains to whether there is, in the
first matter, a basis for granting the declarator and that the registration of transfer be
reversed, with the result that title in the property reverts to Dr Mbuwako. In this
reversed, with the result that title in the property reverts to Dr Mbuwako. In this
regard, she appears to have framed her challenge in terms of the relevant provisions
of the National Credit Act 34 of 2005 (NCA); alternatively, she has relied on broad
contractual principles or those associated with unjust enrichment. The precise
outlines of her challenge are di fficult to discern. The determination thereof will,
however, decide the question underpinning the second matter, viz. whether Nedbank
is entitled to an eviction order.
The immediate issue is Nedbank’s argument that the first matter is res judicata. This
will be discussed below.
Res judicata
[9] Nedbank stated that Dr Mbuwako brought an application on 4 October 2018
for the same relief that she sought in the present matter, which Plasket J dismissed.
Consequently, Dr Mbuwako brought an application to resc ind the above order, which
Lowe J granted on 25 February 2020; the court directed that the original application
be set down afresh for argument. The matter came before Gxarisa AJ, who, on 5
August 2021, granted the relief sought and set aside the sale in e xecution. On
appeal, a full bench set aside Gxarisa AJ’s order on 30 November 2022. Dr
Mbuwako took no further steps.
[10] In Evins v Shield Insurance Co Ltd ,3 Corbett JA addressed the principle of res
judicata, saying that if a final judgment has been gi ven, then subsequent litigation
between the same parties in regard to the same subject -matter, and based upon the
same cause of action, is impermissible. 4 The object of the principle is to prevent the
repetition of lawsuits, the harassment of a defendant by a multiplicity of actions, and
the possibility of conflicting decisions. 5 In Ascendis Animal Health (Pty) Ltd v Merck
Sharp Dohme Corporation and Others ,6 the Constitutional Court, per Khampepe J,
approved the views expressed in Evins, and went on to hold that:
‘The requirements of res judicata , although trite, can be summed up as follows: (i) there
must be a previous judgment by a competent court; (ii) between the same parties; (iii) based
on the same cause of action; and (iv) with respect to the same subject-matter, or thing.’7
3 1980 (2) SA 814 (A).
4 835F .
5 Ibid.
6 2020 (1) SA 327 (CC).
7 Paragraph 71.
[11] From the appeal judgment in the first matter, it is apparent that Dr Mbuwako
previously sought an order declaring the sale in execution on 17 August 2018 to be
null and void. The full bench set out the basis for her application as follows:
‘In the founding affidavit, the respondent [Dr Mbuwako] alleged that the first respondent [the
sheriff] and the appellant [Nedbank] had not complied with the provisions of rule 46 of the
Uniform Rules of Court and that [Dr Mbuwa ko] was prejudiced in the result. She stated the
following:
“The facts of the matter at the time of drafting of this application are that: there are no signed
conditions of sale according to [the sheriff] and/or [the sheriff] refuses to disclose the signed
conditions of sale to [Dr Mbuwako]. Further, the facts of the matter at the time of drafting of
this application are that the auction (sale) of the property did not take place in public and was
not sold to the highest bidder. The facts of the matter at th e time of drafting this application
are that the property was sold in prejudice to [Dr Mbuwako] without a reserve price. [Dr
Mbuwako] will expound the severe consequences (prejudice) of the abovementioned material
irregularities to [her] in detail in the latter part of this affidavit.”8
. . . In amplification of the aforegoing, [Dr Mbuwako] set out the prejudice complained of as
follows:
“ . . . the immovable property was not sold at a public auction; . . . no reserve price was set for
the immovable property; and . . . there were no signed conditions of sale.”’9
[12] The full bench found that the court a quo had incorrectly held that there had
been non -compliance with rule 46 of the Uniform Rules of Court (URC).
Consequently, it upheld the appeal.
[13] In the first matter, Dr Mbuwako has adopted a different approach. Although
not readily apparent from her founding papers, the underlying cause of action seems
to be based on the contention that the parties agreed that payment of the judgment
to be based on the contention that the parties agreed that payment of the judgment
debt would amou nt to full and final settlement of the dispute, with the result that
ownership of the property would revert to Dr Mbuwako. It is not based on compliance
or otherwise with rule 46. Whereas the relief sought in the first matter, i.e. an order
declaring the sale in execution to be null and void, is the same as that in her earlier
application, it cannot be said that the cause of action is the same. The point in issue
8 Sic.
9 Nedbank Limited v Bongiwe Favourite Mbuwako (unreported, case no. CA 17/2022, Eastern Cape
Division, Makhanda), paragraphs 8–9.
is whether payment of the judgment debt, in the circumstances, must result in the
reversion of ownership in the property to Dr Mbuwako.
[14] Consequently, there is no basis for Nedbank’s argument that the first matter is
res judicata. The merits must be considered.
The first matter — application for a declarator
[15] At the outset, it is necessar y to remark that Dr Mbuwako’s papers were badly
drafted and certainly not the embodiment of perspicuity. The relief sought in her
notice of motion is for:
‘an order directing that the attachment and sale in execution . . . transfer and registration of
[the property] . . . be declared null and void and [be] set aside.’
[16] She also sought an order directing the Registrar of Deeds to:
‘reverse the registration of transfer of the property in the name of [Nedbank] and revert the
title in respect of the said property in the names of the applicant.’10
[17] No procedural shortcomings were relied upon. Instead, Dr Mbuwako built her
case on the following allegations:
‘[O]n or about December 2023, [the parties] entered into settlement negotiations in terms of
which it was agreed that, in full and final settlement of the debt, an amount of R 1 687 443
should be paid by [Dr Mbuwako]. Annexed herein . . . is proof of payment . . .
Consequent to these sums being paid, aforesaid, and despite the knowledge by [Nedban k]
of such payment, [Nedbank], through its attorneys, boldly delivered a letter to [Dr Mbuwako],
demanding the signing of an offer to purchase . . . the same property, [Dr Mbuwako] has
settled for . . . R 1 400 000.
Surely, this came as shocking news to [D r Mbuwako] as this was not what [she] was
expecting. All [that] she was expecting from [Nedbank] was to be furnished with [the]
prepared documents for her to sign for transfer and registration of the property into her own
name . . .
10 Sic.
When [Dr Mbuwako] deman ded answers and clarity as to what . . . [the] amount of R
1 687 443 [was] for, if it was not for settling [Nedbank’s] debt, there was no satisfactory
explanation forthcoming, except being threatened with eviction proceedings . . .
I then demand that if [N edbank] does not want the house to be transferred into my name as
before, refund me . . . the R 1 687 443 [that] I paid them.’11
[18] In argument, Dr Mbuwako contended that Nedbank’s right to retain the
property was dependent on the existence of the debt. Once Dr Mbuwako paid the
outstanding amount, the need for security fell away and Nedbank was obliged to
transfer ownership back to her.
[19] To that effect, reference was made to section 129 (3) of the NCA. 12 The
provisions in question state that:
‘(3) Subject to subsection (4), a consumer may at any time before the credit provider has
cancelled the agreement, remedy a default in such credit agreement by paying to the credit
provider all amounts that are overd ue, together with the credit provider’s prescribed default
administration charges and reasonable costs of enforcing the agreement up to the time the
default was remedied.’
[20] The above provisions must be interpreted, however, with reference to the
relevant portion of subsection (4), which provides that:
‘(4) A credit provider may not reinstate or revive a credit agreement after –
(a) the sale of any property pursuant to –
(i) an attachment order; or
(ii) . . .
(b) . . .
(c) . . .’
[21] It is co mmon cause that the property was sold in execution after its
attachment pursuant to the order granted in favour of Nedbank on 22 March 2017.
The underlying mortgage agreement was, therefore, incapable of reinstatement or
11 Sic.
12 Dr Mbuwako’s legal representative referred to section 129 (3) (a), but the provisions were amended in
terms of the National Credit Amendment Act 19 of 2014.
revival; Dr Mbuwako could not, ex l ege, remedy her default. The provisions of
section 129 (3) of the NCA do not assist.
[22] Reference was made to the case law. In Nullah v Harper ,13 the erstwhile
Appellate Division confirmed that there are reciprocal obligations between mortgagor
and mortg agee: the former is required to pay the amount due under a mortgage
bond on the due date, and the latter is required to discharge and cancel the bond
pari passu with such payment. 14 The issue in the first matter, however, is not
Nedbank’s refusal or failur e to cancel the bond. The case is irrelevant. In Volkskas
Bank Bpk v Bankorp Bpk (h/a Trust Bank) en ‘n Ander, 15 to which Dr Mbuwako also
referred, the issue before the erstwhile Appellate Division was at what precise
moment, during its clearing process, c an payment of a cheque be said to have been
effected.16 The case is clearly irrelevant. Reference was made, too, to Standard
Bank of South Africa Ltd v Saunderson and Others ,17 where the Supreme Court of
Appeal dealt with the constitutionality of the sale of residential property for the
recovery of bond repayments. The case is also irrelevant, save for the court’s
observation that:
‘A mortgage bond is an agreement between borrower and lender, binding upon third parties
once it is registered against the titl e of the property, that upon default the lender will be
entitled to have the property sold in satisfaction of the outstanding debt. Its effect is that the
borrower, by his or her own volition, either on acquiring a house or later, when wishing to
raise further capital, compromises his or her rights of ownership until the debt is repaid. The
right to continued ownership, and hence occupation, depends on repayment. The mortgage
bond thus curtails the right of property at its root, and penetrates the rights of ownership, for
the bond-holder’s rights are fused into the title itself.’18
[23] If anything, then Saunderson is authority for the principle that Dr Mbuwako’s
[23] If anything, then Saunderson is authority for the principle that Dr Mbuwako’s
right to continued ownership and occupation of the property was dependent on her
repayment of th e amounts owed under the bond. The debt was, however, never
repaid. Nedbank consequently exercised its right as bondholder to sell the property
in satisfaction thereof.
13 1930 AD 141.
14 151.
15 1991 (3) SA 605 (A).
16 Headnote, 607C.
17 2006 (2) SA 264 (SCA).
18 Paragraph 2.
[24] Dr Mbuwako also referred to ABSA Bank Ltd v Mokebe and Related Cases ,19
where the court held that the reinstatement of a credit agreement was permissible
until the creditor realised the proceeds of a sale in execution. 20 The case does not
assist. The decision in Le Feuvre v Standard Bank of South Africa Limited and
Others,21 was mentioned, too. In that regard, the applicant claimed that a sale in
execution was unlawful and invalid because he had allegedly reinstated the credit
agreement in accordance with section 129 (3) (a) of the NCA prior to the sale in
execution.22 Similarly, the case does not assist. None of the remaining decisions
cited by Dr Mbuwako was remotely relevant to the first matter.23
[25] The payment of R 1 647 443 did not, strictly speaking, constitute settlement of
the outstanding debt still owed in terms of the mortgage bond. From the exchange of
correspondence between the parties, it was clearly intended as payment ‘in full and
final settlement of [Nedbank’s] claims against [Dr Mbuwako]’, including the capital
amount, accumulated interest, and costs, 24 and as envisaged under paragraph 2 of
Mr Schoeman’s correspondence, dated 19 December 2023. Crucially, it was made
only after Nedbank had already attached and sold the property in execution of the
judgment debt. Dr Mbuwako’s contention that Nedbank no longer h ad a right to the
property after payment because there was no longer any need for security, is entirely
misplaced. The horse has already bolted — and has disappeared into the sunset. Dr
Mbuwako’s contention conveniently ignores the common cause fact that N edbank
attached and sold the property when she failed to repay the debt. Nedbank simply
exercised its right as bondholder. There was, moreover, nothing at that stage to have
prevented it from continuing to pursue recovery of whatever remaining amount Dr
Mbuwako still owed.
[26] In Nkata v Firstrand Bank Ltd ,25 the Constitutional Court held, with reference
to sections 129 (3) and (4) of the NCA, that:
to sections 129 (3) and (4) of the NCA, that:
19 2018 (6) SA 492 (GJ).
20 Paragraph 43.
21 2024 JDR 4261 (GJ).
22 Paragraph 3.
23 Serfontein and Another v ABSA Bank Ltd and Others 2023 (5) SA 579 (FB); Cohen v ABSA Bank Limited
2024 JDR 0430 (SCA); and Maree N.O. and Others v Standard Bank of SA Ltd (6038/2023) [2024] ZAFSHC
27 (2 February 2024).
24 See n 1 above.
25 2016 (4) SA 257 (CC).
‘ . . . the barrier to the revival of [a] credit agreement applies only when the proceeds of a
sale in execution have been realised. Only then would the revival be of no use to either
party.’26
[27] Dr Mbuwako’s subsequent payment, after the sale in execution, never
resuscitated the mortgagor -mortgagee relationship between the parties. By that
stage, Nedbank itself had purchased the property and become the registered owner.
[28] It was, moreover, suggested in argument that Nedbank’s refusal to transfer
the property back to Dr Mbuwako was a breach of contract. There was nothing in the
papers, however, to sup port this; there was no allegation that the underlying
mortgage agreement made provision for such an eventuality. In any event, any
obligation to do so would have run contrary to the provisions of section 129 (4) of the
NCA, as well as the principles appar ent from the various authorities already
discussed.
[29] Similarly, it was suggested that Nedbank’s refusal gave rise to unjust
enrichment. The immediate difficulty is that Dr Mbuwako made no allegations to that
effect in her papers; on the common cause f acts there is simply no evidence to
support any contention that Nedbank was unjustly enriched at her expense.
Whereas Dr Mbuwako’s payment of R 1 647 443 may well have settled all
outstanding claims, she should not have expected the return of the property,
simpliciter, when Nedbank had previously reduced the outstanding amount owed at
the time of the sale itself (comprising the capital amount, accumulated interest, and
costs) by the value of the purchase price, i.e. R 1 300 000. To put it differently,
Nedbank was entitled to receive fair value in exchange for its disposal of an asset to
Dr Mbuwako — or to anyone else, for that matter. Insofar as Nedbank may or may
not have been entitled to payment of the full amount, that is not an issue for this
court to de cide. At the very least, it cannot be said that the papers support the
court to de cide. At the very least, it cannot be said that the papers support the
granting of an order for the relief sought based on the principles of unjust
enrichment.
[30] There is, in the end, no merit in Dr Mbuwako’s application. Her payment of R
1 647 443 did not revive the underlying mortgage agreement or require Nedbank to
return ownership in the property. The correspondence between the parties reveals,
26 Paragraph 131.
moreover, that the parties never reached agreement on the terms of the deed of
sale; alternatively, to the extent that it could be said that they did, the suspensive
conditions regarding Dr Mbuwako’s securing mortgage finance were never fulfilled.
There was also no evidence on the papers to support any argument that Nedbank
was contractually obligated to retur n ownership after payment or that it was unjustly
enriched at her expense.
The second matter — application for eviction
[31] Nedbank relies on essentially the same set of common cause facts in support
of its eviction application. On 12 April 2023, Nedba nk’s attorneys demanded that Dr
Mbuwako vacates the property. Subsequently, Nedbank commenced proceedings in
terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (PIE). An order was granted on 14 Nove mber 2023,
authorising service of a written notice on Dr Mbuwako and the King Sabata
Dalindyebo Local Municipality, respectively; the sheriff executed same on 20 and 21
November 2023.
[32] Dr Mbuwako opposed the application on 11 December 2023. She conten ded
that she had fulfilled the terms contained in Mr Schoeman’s letter of 19 December
2023 by paying the settlement amount of R 1 647 443 and signing the deed of sale;
all suspensive conditions had been met. Consequently, there was a binding contract
between the parties, preventing Nedbank from proceeding.
[33] The common cause facts do not support Dr Mbuwako’s assertions.
Admittedly, she paid the settlement amount on 5 January 2024, but despite the
extensive exchange of correspondence between the attorneys it was apparent by 20
June 2024 that no deed of sale had been concluded by either Dr Mbuwako or her
company, BF Medicare (Pty) Ltd. Alternatively, if a deed of sale had been concluded
at an earlier date, then the suspensive conditions regarding Dr Mbuwako ’s securing
mortgage finance were never fulfilled. Considering the correspondence, however, it
mortgage finance were never fulfilled. Considering the correspondence, however, it
seems that the real reason why a binding deed of sale never came into effect was
because Dr Mbuwako was unhappy about the calculation of the purchase price; she
had just paid an amount of R 1 647 443 in settlement of Nedbank’s claims and
expected (wrongly, as it has already been shown) that ownership in the property
would (or should) consequently have reverted to her without need for further
payment.
[34] In terms of section 4 (7) of PIE:
‘If an unlawful occupier has occupied the land in question for more than six months at the
time when the proceedings are initiated, a court may grant an order for eviction if it is of the
opinion that it is just and equitable to d o so, after considering all the relevant circumstances,
including, except where the land is sold in a sale of execution pursuant to a mortgage,
whether land has been made available or can reasonably be made available by a
municipality or other organ of sta te or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, disabled persons and
households headed by women.’
[35] Dr Mbuwako indicated in her papers that she had resided at the property
since at least 2010. There were five minor children who stayed with her, all attending
local schools. In addition, Dr Mbuwako’s partner as well as her adult son and his wife
resided at the property; all were unemployed. She went on to aver that sh e would be
unable to find suitable alternative accommodation in the immediate future because
she had exhausted her savings after paying the settlement amount of R 1 647 443.
[36] For the reasons already discussed in relation to the first matter, the court is
satisfied that no valid defence has been raised by Dr Mbuwako for her continued
occupation of the property. Furthermore, the court is satisfied that the requirements
of section 4 of PIE have been met. It would be just and equitable for an eviction
order to be granted.
Relief and order
[37] Dr Mbuwako has failed to establish a basis for granting the relief sought in the
first matter. There is no reason, either in fact or law, why the attachment and sale in
first matter. There is no reason, either in fact or law, why the attachment and sale in
execution of the property must be declared null and void; similarly, there is no reason
why the registration of transfer must be reversed or why title in the property must
revert to Dr Mbuwako.
[38] Regarding the second matter, Nedbank has successfully demonstrated why
an order for eviction must be gra nted. The court is of the opinion, moreover, that it
would be just and equitable to do so. In determining a date by which Dr Mbuwako
and the residents of the property must vacate, the interests of the children must be
considered; there must be as little di sruption as possible to their schooling. Although
Dr Mbuwako pointed out that she has limited resources to find alternative
accommodation in the short term, she admitted that she is a medical practitioner,
presumably with access to a reasonable income. Fur thermore, it would not be unfair
to observe that she has been aware of the risk of eviction from the property for a
period of at least two years, Nedbank’s having commenced proceedings on 21
August 2023. It would, in the circumstances, be just and equitabl e to determine the
deadline for vacation of the property as being 31 December 2025; a further period of
two weeks should be allowed, prior to the start of the school year, before the eviction
order may be carried out.
[39] In relation to costs, the full be nch in the appeal remarked that Dr Mbuwako’s
conduct was vexatious and deserved the censure of the court, as expressed in a
punitive costs order. The same, regrettably, must be said of her conduct in the first
matter. As previously mentioned, the papers were badly drafted and her challenge to
the attachment of the property and its sale in execution was completely without
merit. From the correspondence between the parties, it is difficult not to believe that
Dr Mbuwako had no real intention of purchasing the property and that the various
overtures made in this regard were motivated chiefly by the need to avoid eviction.
The above comments do not, however, apply to her conduct in the second matter.
The above comments do not, however, apply to her conduct in the second matter.
She was entitled to oppose the eviction application, notwithst anding the flawed basis
upon which she did so. The costs to be awarded must be tailored accordingly.
Considering the complexity and nature of the proceedings, scale B is applicable.
[40] In the circumstances, the following order is made:
(a) regarding the first matter (case no. 98/2016):
(i) the application is dismissed; and
(ii) the applicant therein, Dr Mbuwako, is ordered to pay the attorney -and-
client costs of the first respondent, Nedbank Limited, on scale B, as
envisaged under rule 67A, read wi th rules 69 and 70, of the Uniform
Rules of Court;
(b) regarding the second matter (case no. 2925/2023):
(i) the respondent therein, Dr Mbuwako, and all those occupying the
property situated at 4[...] W[...] Drive, Fort Gale, Mthatha, registered as
erf 2[...], Mthatha , are hereby evicted therefrom on or before 31
December 2025;
(ii) the sheriff is hereby ordered to take such steps as may be necessary
to carry out the above eviction on or before 15 January 2026 if the
respondent and all those occupying the above property h ave failed to
vacate by the date stipulated in subparagraph (i);
(iii) the respondent is ordered to pay the party -and-party costs of the
applicant, Nedbank Limited, on scale B, as envisaged under the rules
described in paragraph (a) (ii), above.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant in the first matter
(and respondent in the second matter): Mr KP Ntila
Instructed by: LUXOLO FODI INC
c/o MABENTSELA AND ASSOC
110 High Street
Makhanda
(Ref: Mr KP Ntila, 2309/NM/023)
Tel: 072 129 3484
Email: kaypeentila@outlook.com
For the first respondent in the first matter
(and applicant in the second matter): Adv KL Watt
Instructed by: WHITESIDES
53 African Street
Makhanda
(Ref: Mr Nunn/sw/C10316)
Tel: 046 622 7117
Email: nunn@whitesides.co.za
Date heard: 29 May 2025.
Date delivered: 30 September 2025.