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
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 53745/2021
METBOARD PROPERTIES LIMITED PLAINTIFF
AND
MVAMBO INTELLIGENT TRANSPORT SOLUTIONS 1ST DEFENDANT
(PTY) LIMITED
ALBERT SEPATAKE MOKOENA 2ND DEFENDANT
JUDGMENT
___________________________________________________________________
This Judgment was handed down electronically and by circulation to
the parties’ legal representative by way of email and shall be
uploaded on CaseLines . The date of the hand down is deemed to be
on the 10 FEBRUARY 2026.
MAKUME J:
1. This is an application in terms of Rule 46A of the Uniform
Rules of Court. The Applicant seeks an order to declare two
immovable properties of the R espondent specially executable
and that the properties be sold on auction to recover a
judgment debt of about R676 000.
2. The judgment arises out of a breach of the lease agreement
by the R espondent s which led to action being instituted
against the respondent, default judgment was granted.
3. It is common cause that the Sheriff attached movables
belonging to the respondent to the value of R205 000. The
attached goods have not been removed for sale, instead, the
applicant issued this application which is being opposed.
4. The respondent opposes the application on the following
grounds:
4.1 Firstly, that the applicant has not complied with the
requirements of Rule 46A(3)(b), in that there has been
no service of the notice on Standard Bank and other
interested parties.
4.2 That the applicant must first exhaust the process of
selling their attached movables prior to leveraging the
immovable property.
5. I deal first with the pertinent background facts, which are
largely common cause. During or about the year 2019, the
first respondent duly represented by the second respondent
concluded lease agreements with the applicant in respect of
property situated at Aeroton in Johannesburg. The second
Respondent bound himself in writing as surety a nd co -
principal debtor in solidum and in favour of the applicant for
the due and punctual payment of rental and all additional
amounts owing, or which may become due and owing to the
applicant by the first respondent.
6. The first Respondent experienced financial problems and
bec ame unable to make payment of the monthly rental due in
terms of the lease agreement. On 9 November 2021, the
applicant issued summons against both respondents claiming
payment of the sum of R677 425.62 (Claim A) and
R114 120.72 (Claim B).
7. During March 2022 default judgment was granted in favour of
the applicant against the first and second respondents in the
total amount of R791 546.34.
8. It would seem from the papers that the respondents started
making payments in liquidation of the amount and as at July
2023, the respondent had reduced the capital by an amount
of R165 000.
9. On 4 May 2023, the Sheriff attached movables to the value of
R205 000, but did not remove same on instructions of the
Applicant’s attorneys. At that time, the capital owing was the
sum of R626 546.34 to which interest and legal costs still had
to be added.
10. On 3 June 2024, after the parties had failed to reach an
agreement about further instalments payment, the Applicant
issued this application in terms of Rule 46A, seeking an order
as follows:
10.1 The immovable property described as 1 [… ] P[… ] Road,
S[… ] 8[… ], Portion 96, 9 [… ] N[… ], Soweto,
Johannesburg, 1071 square metres in extend held by
deed of transfer T [… ].
10.2 1[… ] P[… ] Road, S [… ] 8[… ], Portion 91, 872 square
metres in extend 9[ … ] N[… ], Soweto, Johannesburg held
by deed of transfer T [… ], he declared specially
executable.
11. In support of the application, the applicant says the following
at paragraphs 21 and 22 of his founding affidavit:
“I submit that should the respondents’ assets as
identified by the Sheriff be sold on auction, that I
would obtain a fraction of the amount of assets
valued by the Sheriff. I submit further that I
would not be able to recoup the entire amount
claimed as per the order, which to -date is at
minimum a total of R626 546.34. This amount
excludes interest and the legal costs.”
COMMON CAUSE FACTS
12. It is common cause that the second respondent is the owner
of the immovable properties, which are the subject of this
application.
13. On 4 March 2023, the writ of execution was served on both
the respondents by the Sheriff, who placed under attachment
movables valued at R205 000. No other movable assets were
pointed out to the Sheriff, which could have made up the
difference between the capital amount and the attached
movable.
THE ISSUES
14. What is in issue in this matter is the following:
14.1 Whether the respondent indicated movables of sufficient
value to the Sheriff, to enable the Sheriff to realise
sufficient amount of money to settle the admitted debt.
14.2 Whether the nonjoinder of Standard Bank as a preferent
creditor suffices to deny the Applicant the order
declaring the immovable property specially executable.
14.3 Both properties classified as residential as required by
Rule46A.
15. The starting point in answering the first issue is the
interpretation of Rule45(3) read with Rule46(1)(a)(i) which
read as follows:
“Whenever by any process of the Court, the
Sheriff is commanded to levy and raise any sum
of money upon the goods of any person, he shall
forthwith himself, or by his assistant proceed to
the dwelling house, or place of employment, or
business of such person (unless the judgment
creditor shall give different instructions
regarding the situation of the assets to be
attached) and there;
(a) demand satisfaction of the writ and
failing satisfaction;
(b) demand that so much movable and
disposable property be pointed out as
he may deem sufficient to satisfy the
writ and failing such pointing out;
(c) search for such property.”
16. Rule46(1)(a)(i) reads as follows:
“Subject to the provisions of Rule 46A, no writ of
execution against the immovable of any judgment
debtor shall be issued unless –
(i) a return has been made of any process
issued against the movable property of
the judgment debtor, from which it
appears that the said person has
insufficient movable property to satisfy
the writ.
17. On 4 May 2023, the Sheriff presented himself at the
residential home/business premises of the first and second
respondents and demanded payment of the amount indicated
on the writ, to which the second respondent must have told
the Sheriff that the respondent has no such amount of money.
The second respondent must have then pointed out to the
Sheriff the movables that are indicated on the Sheriff’s
inventory, which come to an estimated value of R205 000.
18. In his answering affidavit, the second R espondent confirms
that the Sheriff, Mr Meso required him to point out to him the
property of the first respondent that were on the premises.
He confirmed that he pointed out to the Sheriff the items that
are listed in the inventory. He then says that other movable
assets of the first respondent are not kept at the property, but
were kept at respective locations or si tes where the first
respondent render services to its customers or clients.
19. What the second R espondent fails to tell this Court is that he
did not tell Mr Meso, the Sheriff that there were other
movables of the first R espondent and as to where those
movables are and what the nature of those movables are. It
must be remembered that the first respondent conducts
business at the properties that the applicant seeks to attach
and that is why the Sheriff was sent or directed to that place
not to si tes of the customers of the R espondent.
20. It is further strange that the respondent does not say that he
is making those movables available for attachment and that
they be sold. Respondent is still free, even after the granting
of this order to sell the movables and pay the judgment debt
and costs. This application is not about the sale of the
movables. It is an order to say that if the debtor does not
make means to pay, then the immovable property will be sold.
21. The Respondents have referred this Court to the matter of
NSB v AFB, case number 260/2019 (EC) Division of the High
Court held at Makhado, a judgment delivered on 25 October
2022. The facts in that matter are distinguishable, in that the
Court found that the null bona return on which the applicant
relied was defective and could not sustain an argument that
there were no movables pointed out.
22. The next judgment that the respondent referred this Court to
is the SCA decision in Bongile Samuel Nkola v Argent Steel
Group (Pty) Limited , case number 406/2017, a judgment
delivered on 26 March 2018. That matter does not support
the contention raised by the respondent that the Sheriff did
not ask to be shown other assets. At paragraph 8 of that
judgment, the Court makes the following remarks:
“There is no evidence on record that any
movables assets, corporeal or incorporeal were
pointed by Mr Nkola to the Sheriff. Yet in his
answering affidavit in the application, he claims
to have more than sufficient movable assets of
significant value, far in excess of the judgment
debt, against which the applicant can execute,
should it choose to do so, without having to
execute against my immovable property.”
23. The SCA in rejecting that notion said the following at
paragraph 10 and 11 of the judgment:
“[10] The question that springs to mind
immediately is why Mr Nkola possessed of
such wealth, did not dispose of his
incorporeal property and pay the admitted
debt to Argent. His stance is that Argent
must seek out the movables and sell them
before attempting to execute again his
immovable properties. He would place the
duty on the judgment creditor, instead of
resolving his financial problems himself.
[11] I consider that the common law and the
rules place no obligation on a creditor to
execute against movable assets where a
judgment debtor has failed to point out
this out and make them available.”
24. In Silva v Transcape Transport Consultants & Another 1999
(4) SA, Wunsch J held that Rule 45 did not remove the
Court’s discretion. In that matter, the debtor had not pointed
out movable property to the Sheriff that were available to
satisfy the judgment debt. It is exactly what happened in this
matter.
25. Fisher J in Absa Bank v Njolomba 2018 (5) SA 508 at page
560, paragraph 41, dealt with the event where the attached
goods were insufficient to satisfy the debt and said the
following:
“Conversely, it would seem to be an exercise in
futility for a creditor to sell by auction household
goods that have little value.”
26. The second issue raised by the Respondent is that, because
Standard Bank holds a bond over one of the properties, it
should have been joined as a party to the application,
because Standard Bank has an interest in the outcome of the
application.
27. In paragraph 51 of the answering affidavit, which was in
response to paragraph 37 of the founding affidavit, the
respondent says the following:
“I wish to add that I acquired these properties by
obtaining finance from the bank. I still have a
mortgage bond on the property at
1[… ] P[… ] Road, S [… ] 8[… ], Portion 97 situated
95 N[… ], Soweto, Johannesburg. The mortgage
bond currently sits around just above R400 000
and it is held with Standard Bank of South
Africa.”
28. The Respondent says nothing in the answering affidavit that
the applicant should have joined Standard Bank in the
proceedings. This is stated for the first time in the
respondents’ heads of argument. The R espondents rely
mainly on the provisions of Rule 46A(3)(b) read with the
provisions of Rule 46(5)(a) of the Uniform Rules of Court.
29. Rule46A(3)(b) requires that an application to declare
immovable property executable shall be on notice to the
judgment debtor and to any other party who may be affected
by the sale in execution, including entities referred to in
Rule 46(5)(a) which are the following, preferent creditors, the
local authority and the body corporate.
30. The notice of motion was served on Standard Bank on
12 April 2024 and on 16 April 2024, a notice of opposition to
that mediation, notice was served on Standard Bank. The
notice of opposition was served by the respondent on the City
of Johannesburg and the applicant.
31. The question to be answered is whether the words on notice
should be understood to mean joinder. Standard Bank’s
interest in this matter is to recover money it has loaned to the
respondent and if the property is eventually sold, Standard
Bank who have r egistered a bond over the property will enjoy
the status of a preferent creditor without having to be joined.
In this instance, Standard Bank has been notified of this
process and will certainly file their claim with the Sheriff prior
to the date of sale in accordance with Rule 45(11)(a)(i) and
(ii) of the Rules of Court.
32. It is in my view a fallacy to suggest that the prayers on notice
in Rule 46A(3)(b) requires that Standard Bank should have
been joined or cited as a party in the application. It is
sufficient and incompliance with the rule if notified and it is
up to them to decide if they want to intervene, then they will
bring such an application.
33. Standard Bank has said nothing, even though they have
notice of the application, which means, they are convinced
that their rights are not threatened, they will participate in the
proceeds of a sale at an appropriate time.
34. In support of their contention on nonjoinder, the respondents
referred this Court to the SCA decision in Cuducap (Pty)
Limited v Philippus Johannes de Bruyn, case number 69/2023
delivered on 13 March 2024. The facts and issues in that
matter are far apart from the facts in this matter. In Cuducap,
the SCA found that Standard Bank should have been joined,
because the High Court had made a ruling cancelling the
bond that had been registered over a property without
Standard Bank having been cited as a party.
35. In paragraph 9 the SCA said the following:
“It was not competent for the full court to make that order. It
granted relief that was not sought by Mr de Bruyn.
Furthermore, the full court made findings adverse to Standard
Bank’s interests without it being a party to the proceedings
before the full court and the High Court. The law on joinder
is well settled. A court would not deal with matters where a
third -party who may have a direct and substantial interest in
the litigation was not joined in the suit or where adequate
steps could not be taken to ensure that its judgment will not
prejudicially affect the party’s interests, nor would it make
findings adverse to any person’s interest without that person
first being a party to the proceedings before it.”
37. Lastly, the second respondent contends that both properties
constitute primary residents for him and his family. He omits
to say at paragraph 73 of his heads that in fact, both
properties also double- up as business premises of the first
respondent.
38. The Respondent raises this defence prematurely. The
defence of primary residents can only be meaningfully dealt
with when an eviction application is before court. I agree
with the applicant’s submission that whether or not the
properties are utilise d as primary residence by the second
Respondent and his family cannot be a defence to an
application to declare the properties executable. The
Applicant has compiled with the requirements of Rule 46A.
39. I am satisfied the Applicant have complied with the
requirements of Rule 46A(2)(a)(i) and 46A(2)(b). A Court will
not order executability without having considered all the
relevant factors. In this regard, the offers made by the
respondent to liquidate the judgment debt were rejected has
been insufficient. The second R espondent boast of
possessing other assets and that business is still going on
and yet, he does not inform the Court about his income and
expenditure to enable the applicant to assess his
affordability.
40. The ideal objective, according to Chapter 10.17 envisaged
under Rule 46A is to establish a payment plan for arrears and
so as to nullify a payment of the accelerated balance. In his
application, the applicant drew the respondent’s attention to
section 26(1) of the Constitution of the Republic of South
Africa. Despite that, the respondent failed to place
information before this Court regarding relevant
circumstances within the meaning of section 26(3) of the
Constitution.
41. The immovable property which are sought to be declared
executable were not acquired by means of a state subsidy,
neither was the debt sought to be incurred in order to acquire
the two properties. The debt emanates as a result of the
respondents having breached the terms of a lease agreement.
42. The second R espondent operates a business and uses both
properties as his business premises. He, the second
respondent does not say that he cannot afford alternative
housing, even though he is still running the business and as I
have indicated earlier on, he is still free to sell his motor
vehicles and pay the debt long before the s ale in execution
takes place. I am satisfied that the R espondents’ opposition
to this application is flawed and meant to delay payment. In
the result, I am satisfied that the application should be
granted and I make the following order ;
1. The immovable property described as :
1[… ] P[… ] Road, S [… ] 895, Portion 96, 9 [… ] N[… .] ,
Soweto, Johannesburg, 1071 square metres in extend
held by deed of transfer T[ … ] (“1[… ] P[… ] Road”) .
1[… ] P[… ] Road, S [… ] 895, Portion 91, 872 square
metres in extend 9[ … ] N[… ], Soweto, Johannesburg held
by deed of transfer T [… ] (“1[… ] P[… ] Road”).
Are declared specially executable.
2. The Registrar of the Honourable Court is authorised and
directed to issue a Warrant of Execution in respect of
immovable properties.
3. The immovable property at 1 [… ] P[… ] Road is to be sold
without reserve alternatively to be sold subject to the reserve
price of R 990 000.00.
4. The immovable property at 1 [… ] P[… ] Road is to be sold
subject to a reserve price of R 850 000.00.
5. A copy of this order is to be served on the Respondents as
soon as practicable after the granting of this order.
6. The second Respondent is order to pay the costs of this
application on the attorney and client scale.
__________________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv M Rodrigues
Instructed by: Van Rheede Attorneys
For the Respondent: Adv P Mbana
Instructed by: Razano Attorneys