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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 19777 / 2020
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 17 November 2025
SIGNATURE:
In the matter between:
OATES ARCHITECTS CC Applicant
and
PHATUDI PHENEAS NKOSI First Respondent
NEDBANK LIMITED Second Respondent
JUDGMENT
This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and by being uploaded to CaseLines. The date and time for
hand down is deemed to be 17 November 2025.
MAHON AJ:
INTRODUCTION
[1] This application concerns the execution of a judgment debt arising from an
architectural services agreement concluded between the applicant, Oates
Architects CC, and the first respondent, Mr Phatudi Pheneas Nkosi, in respect
of the design and renovation of the latter’s residential property situated at 4[...]
S[...] A[...] Road, Bryanston. The applicant seeks an order declaring the
immovable property specially executable in terms of Rules 46 and 46A of the
Uniform Rules of Court, pursuant to an order granted by Dip penaar J on 30
June 2022, in which summary judgment was entered against the first
respondent. The second respondent, Nedbank Limited, is cited by virtue of a
registered mortgage bond over the property.
[2] The underlying contractual relationship is largely com mon cause. The
applicant, represented by its sole member, Mr Mark Dylon Oates, was
engaged to provide architectural services for a residential project of
considerable scale. The agreement adopted the ordinary regime of staged
architectural fees, calculated as a percentage of the final value of the works.
During the course of the project, the estimated value of the works escalated
materially. The applicant maintains that this escalation was the inevitable
product of the design brief, the client’s instruction s and the professional
assessment of the scope of work. The applicant contends that it completed
the stages for which fees are claimed, and that despite partial payment, a
substantial balance remained due. When the first respondent terminated the
agreement, the applicant became entitled to be remunerated for the
completed stages, which formed the basis of the claim successfully advanced
in the summary judgment proceedings.
[3] The first respondent advances a very different narrative. He contends that the
applicant unilaterally inflated the project budget, increasing it from an initial
estimate of approximately R2.5 or R3 million to more than R10 million without
his informed consent. He further alleges that the applicant failed to discharge
material obligations under the agreement, including the submission of building
plans to the City of Johannesburg, compelling him to engage a replacement
architectural firm to regularise the drawings ultimately used to renovate the
property. These issues formed the essence of hi s opposition to the summary
judgment application, and later his attempt to appeal the order. Both the High
Court and the Supreme Court of Appeal rejected these contentions, the latter
refusing leave to appeal on the basis that there were no reasonable pros pects
of success.
[4] Against this background, the present application for execution is resisted not
on the basis of impecuniosity, homelessness or considerations traditionally
advanced in Rule 46A matters, but through a renewed assertion that the
underlying judgment is erroneous and that the applicant acted
unprofessionally. These contentions are intertwined with the first respondent’s
subsequent complaint to the South African Council for the Architects
Profession (“SACAP”), which led to disciplina ry proceedings and a finding of
professional misconduct against Mr Oates some months after the order by
Dippenaar J had been granted. The first respondent urges that these
disciplinary findings call into question the legitimacy of the fees claimed and,
by extension, the executability of his home.
[5] On the papers, the applicant maintains that the disciplinary proceedings have
no bearing on the judgment debt, which stands unless set aside on proper
procedural grounds, and that the first respondent’s renewed att empt to
traverse the merits of the summary judgment is impermissible. It further
contends that the present application does not fall within the class of matters
in which execution against a primary residence threatens homelessness or
infringes constitutional protections, particularly as the first respondent appears
to own additional immovable property and has not placed before the Court a
concrete case of personal or financial hardship.
[6] It bears noting that , from the Bar, it was averred that the adverse fin ding
initially made by the disciplinary committee was subsequently overturned on
appeal. If true, that development would further underscore that the disciplinary
process has no bearing on the validity of the judgment debt. However, in my
view, it matters not as the existence of the judgment debt remains unaffected,
whatever the outcome of those proceedings may have been.
[7] The matter therefore requires the Court to assess the factual matrix with some
care, to identify the true issues that remain open for det ermination at the
execution stage, and to determine whether the statutory requirements
governing execution against a primary residence have been met.
ISSUES FOR DETERMINATION
[8] The dispute had narrowed considerably by the time it reached this stage of the
proceedings. The judgment debt is extant, final, and has withstood challenge
at both High Court and appellate level. The essential question is therefore not
whether the applicant is owed the amount reflected in the Dippenaar J order,
but whether the applican t has met the requirements of Rules 46 and 46A for
the execution of that judgment against the first respondent’s immovable
property, and whether any of the first respondent’s contentions justify
withholding or qualifying such relief.
[9] The issues that arise for determination may be distilled into four interrelated
questions.
[10] First, whether the applicant has complied with the procedural and substantive
requirements of Rule 46A, including the furnishing of a proper valuation, the
identification of a suitable reserve price, and the placing before the Court of all
information necessary to enable a just and equitable assessment of whether
execution against the property is warranted.
[11] Secondly, whether the first respondent has demonstrated, on the papers, that
execution against the immovable property would undermine constitutional
protections associated with access to adequate housing, or would otherwise
render the order unjust or disproportionate. This enquiry encompasses
whether the property is indeed his primary re sidence; whether he has access
to alternative accommodation; whether the judgment debt arises from
obligations that justify recourse to a primary residence; and whether the first
respondent’s financial circumstances demand judicial intervention to temper
the ordinary consequences of a final monetary judgment. The question of
whether the property is the first respondent’s primary residence is clouded by
contradictory indications: the answering affidavit cites a different residential
address, whereas the firs t respondent later suggested from the bar that he
resides at the property.
[12] Thirdly, whether the matters raised by the first respondent concerning the
conduct of the applicant, the escalation of the project budget, the alleged non -
submission of plans, and t he subsequent disciplinary findings of SACAP bear
any relevance to the execution enquiry. The Court must consider whether
these issues, already canvassed and rejected during the summary judgment
proceedings and in the unsuccessful application for leave to appeal, may
permissibly be revisited at this stage, either directly or indirectly.
[13] Fourthly, whether any equitable considerations, including the existence of a
mortgage bond in favour of the second respondent, the level of indebtedness
on the property, and the relationship between the municipal valuation, market
valuation, and the proposed reserve price, support or detract from the relief
sought.
[14] These issues form the basis of the Court’s analysis and, taken together,
determine whether an order declaring th e property specially executable is
appropriate in the circumstances.
LEGAL FRAMEWORK
[15] Execution against immovable property is governed by Rules 46 and 46A of
the Uniform Rules of Court. Rule 46 provides the general mechanism for
execution against immovable property, while Rule 46A creates a specialised
and constitutionally sensitive regime that applies whenever the property
concerned is a residential immovable property owned by a judgment debtor.
Rule 46A must therefore be treated as the governing framework in this matter,
although it operates against the backdrop of the procedural architecture
established by Rule 46.
[16] At common law and under Rule 46, execution against immovable property is
permissible only if the judgment debtor’s movable assets have been
excussed, or if the court has declared the immovable property specially
executable. Rule 46A preserves this principle, but overlays it with judicial
oversight that gives effect to section 26 of the Constitution. The purpose of
Rule 46A is to ensure that execu tion against a person's home does not occur
in a mechanical fashion and that considerations of proportionality, dignity and
fairness are properly weighed.
[17] Rule 46A(1) requires that no writ of execution against the residential
immovable property of a judgme nt debtor may be issued unless a court has,
after considering all relevant circumstances, declared such property specially
executable. This judicial oversight extends not only to the fact of execution but
also to its practical modalities, including the res erve price and any conditions
to be imposed on the sale.
[18] Rule 46A(2) obliges the execution creditor to place before the court detailed
information concerning the property. Central to this is a current valuation of
the property, which must be obtained from a sworn appraiser or other qualified
person. This valuation assists the court in determining whether a reserve price
is required under Rule 46A(9) and in assessing the proportionality of
execution.
[19] Rule 46A(3) obliges the judgment debtor to disclose releva nt information
regarding his or her personal circumstances, including employment, income,
dependants, and the presence or absence of alternative accommodation.
Although the subrule creates an obligation, the case law makes clear that the
court may not infer that such circumstances are irrelevant merely because the
judgment debtor has elected not to disclose them. Judicial oversight requires
that the court evaluate all available information, but it is equally true that the
debtor bears a burden to place hardship before the court in concrete terms.
[20] Rule 46A(5) requires service of the application on the judgment debtor, any
occupier of the property, and any mortgagee. This ensures that all affected
parties are afforded notice and an opportunity to participate in the process.
[21] Rule 46A(6) embodies the central proportionality assessment. The court must
consider all relevant factors, including whether the property is the primary
residence of the judgment debtor, the circumstances under which the debt
was incurred, t he amount of the debt, the debtor’s payment history, the
presence or absence of alternative means to satisfy the debt, and the potential
impact of execution on the debtor and any dependants. Where the property is
not a primary residence, the constitutional considerations that animate the rule
diminish, though judicial oversight remains required.
[22] Rule 46A(8) empowers the court to set a reserve price. In recent
jurisprudence, this has become the norm rather than the exception,
particularly where there is evid ence of substantial equity in the property or
where the amount owed is markedly lower than the market value. The reserve
price serves as a safeguard against sales in execution that would unjustly
enrich purchasers or disproportionately harm the debtor. The court may
dispense with a reserve price if justified by the evidence.
[23] Rule 46A(9) requires the court, before authorising a sale in execution, to
ensure that the reserve price (if set) reflects a fair balance between the
interests of the creditor and the d ebtor. The market valuation is the starting
point, but the rule allows deviation where circumstances demand it.
[24] Rule 46A(11) permits variation of the reserve price or other conditions of sale
should a sale not take place at the reserve price. This ensures flexibility and
fairness in circumstances where an initially fair reserve price proves
impracticable.
[25] When execution proceeds, Rule 46 governs the procedural steps relating to
attachment, notice, advertising, the preparation of conditions of sale, and the
conduct of the auction. These provisions do not require comprehensive
discussion here, but two features of Rule 46 remain relevant. First, the sheriff
must ascertain and notify all mortgagees and preferent creditors of the
intended sale. Secondly, the sale must take place subject to a reserve price
where one has been ordered under Rule 46A(9).
[26] Taken together, Rules 46 and 46A create a dual system in which execution
against immovable property is permitted, but in the case of a primary
residence only after careful judicial scrutiny has ensured that the constitutional
rights implicated by such execution have been properly respected. The task of
the court is to apply these principles to the facts before it, determining whether
the applicant has discharged its bu rdens and whether the first respondent has
demonstrated that execution would be unjust, disproportionate or
constitutionally impermissible.
POSTPONEMENT APPLICATION
[27] Before turning to the merits of the application, it is necessary to record that at
the commencement of the hearing the first respondent, who appeared in
person following the withdrawal of his attorneys on 1 August 2025, sought a
postponement in order to obtain new legal representation. I afforded him a full
opportunity to address me on the c ircumstances giving rise to the withdrawal,
the steps he had taken to secure alternative representation, and the reasons
why the matter could not proceed. Counsel for the applicant opposed the
postponement, submitting that it was neither timeously nor adeq uately
motivated and that its effect would be to prolong litigation that has already
been pending for several years despite the judgment debt having been
finalised in 2022.
[28] The first respondent explained that financial constraints had prevented him
from securing new attorneys and that he wished to have a legal representative
who could, in his view, articulate his grievances concerning the architectural
contract more effectively. However, he was unable to provide a satisfactory
account of what steps he had t aken between the withdrawal of his attorneys
on 1 August and the date of the hearing to secure alternative representation.
The explanation proffered was vague and unsupported by any confirming
material. He did not contend that he was unaware of the hearing date, nor did
he suggest that his former attorneys withdrew without warning or that he had
been misled or prejudiced in any way that could not be cured by an
appropriate costs order.
[29] In determining the application, I was guided by the well -established principles
governing postponements. A postponement is not a matter of right; it is an
indulgence granted in the exercise of a judicial discretion, and only where it is
in the interests of justice. The applicant is entitled to the finalisation of
proceedings that have been delayed for a considerable period. The judgment
debt was confirmed on appeal more than two years ago and the first
respondent has had multiple opportunities to advance his defences, including
through the filing of an answering affidavit in th ese very proceedings. No new
facts or developments were identified that would justify a further delay.
[30] Having considered the submissions of both parties and the history of the
matter, I concluded that good cause had not been shown. The request for a
postponement appeared to be a belated attempt to defer the inevitable
consequences of a final judgment rather than a genuine necessity arising from
circumstances beyond the respondent’s control. I accordingly dismissed the
application for a postponement, with re asons to follow in the main judgment.
The hearing then proceeded, with the first respondent participating fully and
being afforded the opportunity to address all issues arising in the main
application.
ANALYSIS
[31] A preliminary issue concerns the status of the property as the first
respondent’s primary residence. The papers are not entirely clear on the point.
In his answering affidavit, the first respondent identifies his residential address
as 3 […] L[...] Avenue, Bryanston, and he does not expressly assert th at he
occupies the S[...] A[...] Road property as his home. During argument, the first
respondent, who appeared in person, initially conceded that the property was
not his primary residence. He then appeared to withdraw or qualify that
concession, and sought t o suggest that he does, in some manner, reside
there. The equivocation leaves the record without a definitive and coherent
assertion one way or the other.
[32] For purposes of this judgment, however, it is unnecessary to resolve that
ambiguity. Even if one assu mes in the first respondent’s favour that the
property is indeed his primary residence, the requirements for granting the
relief sought are nonetheless met. The first respondent has placed no
evidence before the Court demonstrating that execution would ren der him
homeless, deprive him of access to adequate housing or impose a burden of
such gravity as to outweigh the applicant’s entitlement to enforce a final
judgment. He has identified an alternative residential address and owns at
least one additional imm ovable property, neither of which is said to be
unavailable to him. He has provided no information on dependants, household
circumstances or financial vulnerability, despite the clear injunction of Rule
46A(3) to do so. In the absence of any concrete evide nce of hardship, and
given the substantial equity in the property relative to the judgment debt, the
constitutional concerns that ordinarily require heightened scrutiny do not arise
with any persuasive force. Indeed, in his oral submissions he accepted that he
could relocate if necessary and that the property, if sold, would yield a surplus,
even on a conservative valuation. On either characterisation of the property,
the proportionality enquiry yields the same conclusion.
[33] The applicant has taken all steps required of an execution creditor in terms of
Rule 46A. A current sworn valuation was furnished, together with the
municipal valuation and the title deed particulars, enabling the Court to assess
the property’s present worth and the equity available. The a pplication was
properly served on the first respondent and on the mortgagee, Nedbank, and
there is no suggestion that any interested party lacked notice or an opportunity
to participate. The sheriff’s report confirms that the procedural requirements of
Rule 46 have been satisfied and that the property may be sold in execution
subject to the Court’s determination of the questions reserved for judicial
oversight. The applicant has therefore placed before the Court the information
that the rule obliges it to provide.
[34] The first respondent’s answering papers, by contrast, do not engage directly
with the constitutional and proportionality enquiries contemplated by Rule 46A.
Instead, they invite the Court to revisit the merits of the underlying dispute by
asserting that the applicant acted unprofessionally, unilaterally escalated the
project budget and failed to submit the building plans. These allegations mirror
those raised in opposition to the summary judgment application, and later in
the unsuccessful attempt to obtain leave to appeal. The summary judgment
stands as a final order, and the Supreme Court of Appeal has refused leave
on the basis that none of these contentions presents a reasonable prospect of
success. As a matter of principle, the execution stage is not a forum in which
the merits of the judgment may be re -opened. To permit a judgment debtor to
resist execution by simply repeating contentions already adjudicated would
undermine the finality of judgments and render the execution process
contingent on the debtor’s dissatisfaction with the outcome of prior
proceedings. The proper remedy for a debtor who disputes the correctness of
a judgment is an appeal or rescission where available. Neither mechanism
assists the first respondent here.
[35] The first respond ent’s reliance on the subsequent disciplinary proceedings
before SACAP does not alter this position. Those proceedings occurred after
the order had been granted by Dippenaar J, and no application for rescission
or variation has been brought on their accoun t. A disciplinary finding of
misconduct against a professional does not retrospectively nullify a civil
judgment, nor does it constitute a basis for refusing to give effect to a final
order. Unless and until the judgment debt is set aside by a court of com petent
jurisdiction, the debt exists and must be enforced in accordance with the
procedural regime established by the rules. Moreover, the disciplinary findings
do not resolve the matters that formed the subject of the summary judgment.
They reflect a prof essional body’s evaluation of conduct with reference to its
own statutory standards, not a court’s determination of contractual liability or
quantum. The attempt to blur these domains cannot be sustained.
[36] The Rule 46A enquiry is instead directed to whether execution against the
property would constitute an unjustifiable infringement of the protections
implicit in section 26 of the Constitution. The first respondent avers in broad
terms that the property is his home, but he does not place before the Court
concrete information regarding his household composition, the presence of
dependants, or the availability of alternative accommodation. He does not
assert that execution will result in homelessness, nor does he provide the kind
of personal financial information contemplated by Rule 46A(3). What emerges
from the papers is that the first respondent owns at least one other immovable
property, which is not said to be encumbered or unavailable for occupation. In
the absence of evidence of hardship, the Court canno t assume that the first
respondent faces destitution or displacement. While Rule 46A does not permit
indifference to the debtor’s circumstances, it equally does not require the
Court to speculate on hardship where none has been demonstrated. During
the hearing, the first respondent acknowledged that he had previously resided
at the L[...] Avenue property, that he owns no fewer than two immovable
properties on the papers, and that he had attempted to market the S[...] A[...]
Road property for sale. None of this s upports a conclusion that execution
would leave him without accommodation.
[37] The proportionality enquiry also takes into account the nature and origin of the
debt. The judgment arises from fees payable for architectural services
voluntarily engaged for a sub stantial renovation project. The debt is not trivial,
nor does it arise from involuntary circumstances or an unforeseen calamity.
The first respondent initiated an ambitious building project, accepted the
professional services that were rendered, and then chose to terminate the
agreement in circumstances that led to litigation. The debt therefore owes its
existence to contractual obligations voluntarily assumed, and the creditor is
not a financial institution seeking to enforce a mortgage bond, but a
professional who has successfully pursued a claim for remuneration. Rule 46A
does not distinguish between classes of creditors, but the provenance of the
debt remains a relevant factor in assessing proportionality. The first
respondent’s oral submissions reinfor ced the voluntary nature of the
underlying obligation: he described the property as a high -value home,
accepted that he had invested substantially in its construction, and
acknowledged contemplating its sale to address his indebtedness.
[38] The property in que stion has a material value well in excess of the judgment
debt and associated costs. The sworn valuation indicates that even if the
reserve price is fixed conservatively, there is substantial equity that can be
realised without unfairness to the debtor. Th e availability of such equity
ordinarily supports the granting of an order declaring the property specially
executable, subject to an appropriate reserve price, since it avoids the risk of
the debtor’s home being sacrificed for a fraction of its worth. The presence of
a mortgage bond in favour of Nedbank is not a bar to execution; the bank has
been notified and has not opposed the application. There is no evidence of
arrear municipal debts or encumbrances that would absorb the equity in a
manner that threatens injustice.
[39] Against this background, and in the absence of circumstances that would
render execution disproportionate or constitutionally impermissible, the
requirements of Rules 46 and 46A are satisfied. The judgment remains extant,
the debtor has not made payment, and no credible basis exists to withhold the
ordinary consequences of a final order. The first respondent’s attempt to
revisit the merits cannot be entertained, and he has not established the kind of
hardship that would justify refusing or po stponing the relief sought. In these
circumstances, it is just and equitable to authorise execution against the
property, with a reserve price to be fixed so as to protect the interests of all
parties concerned.
CONCLUSION
[40] In the result, the applicant has demonstrated compliance with the procedural
and substantive requirements governing execution against residential
immovable property. The first respondent, despite ample opportunity, has not
placed before the Court any evidence capable of establishing that execution
would imperil his access to adequate housing, render him homeless or
otherwise produce consequences of a constitutionally impermissible kind. His
opposition rests substantially on matters already adjudicated in the summary
judgment proceedings an d in his unsuccessful attempts to appeal. Those
issues cannot be revived at this stage, nor do the subsequent disciplinary
proceedings alter the status of the judgment debt or furnish a basis to resist
execution.
[41] The property bears a value markedly exceedi ng the judgment debt and
associated liabilities, and there is no indication that a properly supervised sale
in execution, subject to an appropriate reserve price, would yield anything
other than a fair realisation of the respondent’s equity. Weighing the i nterests
of both parties, and applying the judicial oversight required by Rule 46A in
light of section 26 of the Constitution, I am satisfied that authorising execution
accords with justice and equity in the circumstances.
[42] In my view, a reserve price of R11 050 000 (eleven million and fifty thousand
rand) is appropriate to fix for the sale in execution of the property. This amount
reflects a fair proportion of the most reliable evidence of market value placed
before the Court, takes acco unt of the municipal valuation, the extent of the
judgment debt, the outstanding bond and municipal charges, and preserves
the respondent’s substantial equity while ensuring that the applicant is not
deprived of the fruits of a final judgment.
[43] In the circumstances, the following order is made:
1. The immovable property situated at 4[...] S[...] A[...] Road, Bryanston,
held under Title Deed T[...], is declared specially executable in terms of
Rules 46 and 46A of the Uniform Rules of Court.
2. A reserve price of R11 050 000 (eleven million and fifty thousand rand)
is fixed for the sale in execution of the property.
3. The sheriff for the district in which the property is situated is authorised
to attach and sell the property in execution, subject to the reserve price
fixed above and in accordance with Rules 46 and 46A. Should the
property not be sold at or above the reserve price, the applicant shall
return the matter to Court for reconsideration of the reserve price or for
such further directions as the Court may deem appropriate.
4. The sheriff shall give all notices required by Rule 46, including notice to
mortgagees and preferent creditors, and shall settle the conditions of
sale subject to the terms of this order.
5. The sheriff is directed to effect service of this order on the first
respondent.
6. The first respondent shall pay the costs of this application, including all
reserved costs, on scale B.
_________________________
D MAHON
Acting Judge of the High Court
Johannesburg
Date of hearing: 12 August 2025
Date of judgment: 17 November 2025
APPEARANCES:
For the Applicant: Adv van der Linde
Instructed by: Blumenthal Attorneys
For the 1st Respondent: In person
No appearance for the 2nd Respondent: