SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025/197275
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: YES
DATE 10/12/2025
SIGNATURE
In the matter between:
NEDBANK LIMITED Applicant
and
EVODIA TSHABALALA Respondent
___________________________________________________________________
JUDGMENT-REASONS FOR COURT ORDER IN TERMS OF RULE 49(1)(c)
___________________________________________________________________
INTRODUCTION
1. This is an application for default judgment and an order declaring the
Respondent’s immovable property specially executable in terms of Rule 46A,
consequent upon the Respondent’s breach of a home loan agreement and mortgage
bond.
BACKGROUND AND PROCEDURAL HISTORY
2. The application is unopposed. The founding affidavit, deposed to by Michaela
Hicks, a manager in the Applicant’s foreclosure department, sets out the following
facts which are not disputed:
2.1. The Applicant and Respondent entered into a loan agreement on or about 20
June 2012 and on 18 July 2012 a mortgage bond (No. S[...]) was registered over
the immovable property, a sectional title unit, in the Protea Glen Estate, Soweto.
2.2. The Respondent failed to maintain the monthly instalments and, despite
demand and the delivery of a notice in terms of Section 129(1)(a) of the National
Credit Act, Act 34 of 2005 ("the NCA"), remains in default.
2.3. At the time of hearing the matter, t he arrears stood at R99,832.18,
representing approximately 20 months of instalments of R4,970.67 per month. The
total outstanding judgment debt is R365,085.39.
3. The application was duly served. The Sheriff’s return indicates that the papers
were served on the Respondent’s daughter, who informed the Sheriff that the
Respondent no longer resided at the chosen domicilium address.
4. The matter was set down on the unopposed roll for 27 November 2025. A practice
note was filed by the Applicant’s counsel. At the hearing, it came to light that the
Respondent was present in person and unrepresented. Upon the Court being alerted
to her presence, the matter was stood down to enable the parties to engage.
THE RESPONDENT’S CIRCUMSTANCES AND THE PARTIES’ AGREEMENT
5. Upon resumption, counsel for the Applicant advised the Court that the parties had
reached an agreement that in the event the court were to grant the applicant’s draft
order, he/she would seek an order suspending operation of same for a period of four
(4) months. Counsel further placed before the Court the exceptional circumstances
underpinning the Respondent’s default.
6. The Respondent purchased the property as a new development. Shortly after
taking occupation, significant structural defects, including cracks in the walls, were
discovered. The defects were of such a serious nature that regulatory bodies,
including the National Home Builders Registration Council ("NHBRC"), intervened.
The property was subsequently declared uninhabitable and was demolished. The
site currently stands vacant, with no structure in existence. The matter was further
reported to the Office of the Public Protector.
7. The Respondent was compelled to vacate the premises and has since been
renting alternative accommodation while still being liable for the mortgage bond. This
has caused her severe financial and personal hardship, impacting her ability to meet
her bond obligations.
COURT’S EVALUATION AND EXERCISE OF DISCRETION
8. Rule 46A and the constitutional imperative in section 26 of the Constitution
require this Court to be vigilant in exercising its discretion before granting an order
for the execution of immovable property, particularly where the property may be a
person’s home. The Court must consider all relevant circumstances to ensure justice
and equity.
9. While the Applicant has established a clear cause of action and has complied with
the procedural requirements of the NCA and the Rules of Court, the circumstances
presented are highly unusual and complex. The core asset securing the debt has,
through no fault of the Respondent, been utterly destroyed due to alleged apparent
latent defects and/or shoddy workmanship. The Respondent is now left with a liability
secured by vacant land.
10. The parties’ agreement to seek a four -months’ suspension of the order is noted.
However, the Court must independently assess what is just and equitable in the
circumstances.
11. The following factors weighed heavily in the Court’s deliberation:
11.1. The Nature of the Security: The property, as a vacant stand, has a drastically
different value and marketability compared to a developed residential unit. The
forced sale val ue of R462,000.00, upon which the proposed reserve price is based,
likely reflects a valuation of a developed property as according to the sworn
valuation. A sale in execution of a bare stand, in circumstances where the residential
complex has a history of structural failure and demolition, may not realise a fair
value, to the severe detriment of both parties.
11.2. Complex Legal Issues : The Respondent’s predicament raises potential legal
claims against third parties, including the developer, the builder, NHBRC, or possibly
other entities responsible for the construction and certification of the property. These
are complex issues requiring proper legal advice and possibly further litigation to
hold the responsible parties accountable and potentially secure redress for the
Respondent.
11.3. Justice and Equity: It would be unjust in the extreme to allow the execution
process to proceed precipitously in these circumstances, where the Respondent is a
victim of a failed housing project. A longer suspension is warranted to allow for the
exploration of all legal avenues that may ultimately contribute to resolving the
underlying debt.
11.4. Reserve Price: The Court notes the Applicant’s proposal for a reserve price of
R355,000.00, calculated by deducting outstanding rates of R36,463.96 and levies of
R70,340.22 from the forced sale valuation. Given the unique circumstances, this
calculation appears reasonable as a baseline to protect both parties' interests should
a sale ultimately proceed.
RATIONALE FOR THE EXTENDED SUSPENSION
12. The four -month suspension agreed upon by the parties was in the Court’s view
insufficient to address the profound complexities of this case. A period of twelve
months provides a more realistic timeframe within which the Respondent, ideally with
the benefit of legal assistance, can:
12.1. Investigate a venues of redress against th ose responsible for the defective
workmanship of her home.
12.2. Allow time for the respondent to sell, if she so chooses and possibly secure the
best bargain. Engage constructively with the Applicant, from a potentially
strengthened position, to explore a sustainable settlement, which could include a
voluntary sale of the land, a debt restructuring, or another resolution informed by the
outcome of any third-party claims.
12.3. Seek appropriate legal advice and, if necessary, approach relevant consumer
protection or ombud institutions.
13. This extended suspension is not intended to absolve the Respondent of her
financial obligations. It is a necessary, equitable intervention to prevent an
irreversible sale of the only remaining security under conditions that are manifestly
unfair and potentially financially ruinous, while enabling a process that could lead to
a more just and final resolution for all involved.
ORDER
14. In the exercise of my discretion, and in the interests of justice, I granted an order
in the following terms:
14.1. Judgment in favour of the Applicant for the capital sum of R365,085.39, with
interest at the rate of 9.40% per annum from 1 September 2025. The property was
declared specially executable.
14.2. A reserve price of R355,000.00.
14.3. Operation of the order is suspended for a period of twelve (12) months.
CONCLUSION
15. These then are my reasons for the order I granted on 27 November 2025.
Nkoenyane AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances:
For the Applicant: Advocate Msomi
Instructed by: Fairbridges Wertheim Becker Attorneys
For the Respondent: In person
DATE OF HEARING: 27 NOVEMBER 2025
DATE OF REASONS: 10 DECEMBER 2025