SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 14838/24
In the matter between:
ABSA HOME LOANS GUARANTEE
COMPANY (RF) (PTY) LTD FIRST APPLICANT
ABSA BANK LIMITED SECOND APPLICANT
and
THULASIVE TWALO FIRST RESPONDENT
CHWAYITA GAIL TWALO SECOND RESPONDENT
Coram: MGENGWANA AJ
REASONS FOR ORDER GRANTED ON 29 OCTOBER 2025
MGENGWANA AJ:
Introduction
[1] This is an opposed application for Summary Judgement and an
opposed Application made in terms of Rule 46A of the Uniform Rules of
Court brought by the First and Second Plaintiff against the First and Second
Defendant.
[2] The applications were initially set down for hearing on 18 March
2025, but had to be postponed by my brother , Acting Justice Kantor, to 27
October 2025 to enable the Defendants to serve and file their opposing
affidavits to both applications by no later than 17 April 2025.
[3] The Plaintiffs were ordered to file their Heads of Argument by no
later than 6 October 2025, and the Defendants were ordered to file theirs by
no later than 13 October 2025. The costs occasioned by the postponement
stood over for later determination. The dates set out above were issued and
agreed to by the First Defendant personally on 18 March 2025.
[4] The Plaintiffs’ Practice Note and Heads of Argument were fi led on 8
October 2025; the Heads of Argument of the Plaintiffs were therefore filed
out of time. The Defendants’ opposing affidavit (Answering Affidavit
deposed to by the First Respondent and Confirmatory Affidavit deposed to
by the Second Respondent) , which also incorporated averments supporting
condonation for the late filing of the Answering Affidavit, was filed on 23
October 2025, it was therefore filed way out of time, considering that it was
supposed to have been filed on 17 April 2025. This is also despite the fact
that the parties were notified of the date of the hearing and of the judge who
will be presiding over this matter on 15 October 2025 already.
[5] The Notice of Motion for Condonation of the late filing of the
Answering Affidavit was only filed on 27 October 20 25, on the day of the
hearing. After a brief appearance in co urt, the matter was stood down to the
afternoon of 28 October 2025 to enable the First Defendant, who was
appearing in person, to draft and file the Defendants’ Heads of Argument
and Answering Affidavits to the Rule 46A application and argue the matter
the same afternoon.
[6] The Defendants did indeed file their Heads of Argument and
Answering Affidavit to the Rule 46A application as ordered on 28 October
2025. Thereafter, the matter was argued by counsel for the First and Second
Plaintiff and the First Defendant , who also argued on behalf of the Second
Plaintiff, his spouse. T he court reserved judgment until 29 October 2025 in
order to consider the papers and the written and oral submissions made in
court before making a determination.
[7] After considering the submissions made by both parties , an order as
follows was then granted in favour of the Plaintiff on 29 October 2025:
“Condonation for the late filing of the Answering Affidavit is granted.
Summary judgment is granted against the defendants jointly and severally,
for:
1. Payment of R2 205 675.65 plus interest at 12.30% p.a. calculated
on daily balances and capitalised monthly on the first day of each
month from 7 February 2025, both days included; and
2. Costs as between attorney and client, including the costs
occasioned by the postponement of 18 March 2025 and 27 October
2025 with costs of counsel on scale B.
It is ordered in respect of the Rule 46A application that:
1. The property described as ERF 3[...] Goodwood, in the City of
Cape Town, Cape Division, Province of the Western Cape, held by
the defendants in terms of Deed of Transfer T[...] and mortgaged to
the plaintiffs by virtue of B4758/2020 is declared executable;
2. The abovementioned property shall be sold by the Sheriff subject
to such reserve price of R 2 145 000.00;
3. The following terms and conditions shall be inserted in the
conditions of sale that would apply at the auction to be held as
provided for in Rule 46A(8)(a);
“Where the execution creditor is the purchaser, the purchaser is relieved of
the obligation to pay the deposit or provide any guarantee in respect of the
balance of the purchase price or to make payment thereof, but for such
amount that would be in e xcess of the amounts payable under the
mortgage bond, it being expressly stated that such obligation would be
extinguished by set -off immediately when due and the execution creditor
shall provide proof of such set -off to the execution debtor. It is furthe r
expressly stated that the commission payable to the sheriff following upon
the sale in execution shall be paid within 21 days of the date of sale by the
execution creditor to the sheriff if the execution creditor purchased the
property at the auction.”;
“No one bidding at an auction shall be permitted to withdraw any bid and
where the reserve price was not achieved the court may confirm the sale to
the highest bidder at a later stage.”; and
4. The defendants shall pay the plaintiffs’ costs in respect of the Rule
46A application as between attorney and client, including the costs
occasioned by the postponement of 18 March 2025 and 27 October
2025 with costs of counsel on scale B.”
[8] Subsequent to the granting of the aforementioned Order, t he Court
was requested on 5 November 2025 to furnish the parties with reasons for
the Order; these reasons follow hereunder.
Factual Background
[9] On or about 1 8 December 2019, in Cape Town, the Second Plaintiff,
which was duly represente d by an authorised person, and the Defendants
concluded a written mortgage loan agreement on, inter alia , the following
terms:
a. That the Second Plaintiff would advance a sum of
R1 750 000.00 to the Defendants as a home loan.
b. That the principal debt agreed to by the Defendants and the
Second Plaintiff is an amount of R1 758 996.27, which is made
up of the loan amount , an initiation fee and an insurance
premium payable in respect of insurance over the immovable
property.
c. That all amounts owing will bear interest.
d. That interest would vary from time to time, linked to the prime
rate of the Second Plaintiff , and the monthly instalments would
be adjusted accordingly.
e. That the principal debt is to be repaid by the Defendants to the
Second Plaintiff in 360 monthly instalments of R17 437.98 per
month, to be adjusted according to the variable interest rate .
(my underlining)
f. That the Defendants will be in default under the home l oan
agreement, inter alia, if they fail to pay any amount payable to
the Second Plaintiff under the home loan agreement on the due
date thereof.
[10] When the Defendants failed to make monthly payments as agreed , the
attorneys for the Second Plaintiff addressed letters in terms of Section 129
read together with Section 130 of the National Credit Act 34 of 2005 (“the
NCA”) on 1 December 2023 to the Defendants. These letters were served on
the First Defendant by the Sheriff on 6 December 2023.
[11] Letters of demand requiring the Defendants to pay the First Plaintiff
an amount of R2 046 642.05 were also addressed to the Defendants on 19
March 2024; these letters were also served on the First Respondent by the
Sheriff on 22 March 2024.
[12] When the correspondence stated above failed to elicit a response which
was satisfactory to the Plaintiffs, the Plaintiffs issued and served a
Combined Summons on the Defendants . The Combined Summons sought
judgment in the amount of R2 046 642.05, together with interest thereon at a
rate of 13.05%, plus one per cent from 16 March 2024 to the date of final
payment, both dates inclusive , against the Defendants . The Combined
Summons was served on the Defendants on 5 July 2024.
[13] The Defendants served a Notice of Intention to Defend the action on
14 July 2024 and their Plea on 29 January 2025 after being served with a
Notice of Bar on 24 January 2025. The crux of the Defendants’ defense is as
follows:
a. They denied that it was a material term of the home l oan
agreement that the monthly instalment in the amount of
R17 437.98 would be adjusted according to the variable interest
rate without their consent.
b. They pleaded that the Plaintiffs have not complied with the
provisions of the NCA prior to commencing legal action against
them for defaulting. In other words, the Plaintiffs commenced
with legal action prematurely.
c. They noted that the Second Plaintiff was entitled to recover
from the Defendants payment of all amounts owing under the
home loan agreement, including overdue amounts and/or
immediate repayment of the balance of the principal debt owing
to the Second Plaintiff together with accrued but unpaid
interest, but pleaded that such entitlement is subject to the
provisions of Section 129 of the NCA.
d. They also pleaded that the alleged arrear amount of
R224 955.09 is in dispute since it is a product of the increase in
interest rate, which they never consented to.
e. They also pleaded that the ir failure to make monthly
instalments resulted from, inter alia, the advent of COVID-19,
which hampered their income-generating capabilities.
According to them , the COVID period lasted for over two
years.
f. They also pleaded that the above situation was worsened by the
unilateral increase of the repayment amounts based on the
increased interest rate , but despite this situation , they made
genuine attempts to remedy the situation of defaulting by
making payments showing a desire to remedy the situation.
g. They also pleaded further that they forwarded a payment plan to
the legal representatives of the Plaintiffs, but such a plan was
ignored. In this payment plan , they proposed to pay a monthly
amount of R13 000.00.
[14] The legal documents referred to above were drafted by the First
Defendant, who is, for the record, an admitted advocate of this honourable
Court.
[15] The Plaintiffs responded to the Defendants’ Plea by serving and filing
a Summary Judgement Application on 17 February 2025. In this application,
the Plaintiffs averred that the following averments that appear on the
Defendants’ Plea are not triable issues:
a. That their account fell into arrears because of the variable
interest rate, and same was unilaterally increased by the
Reserve Bank without seeking the Defendants’ input.
b. That they fell into arrears due to COVID, which led to them
being unable to comply with their obligations in terms of the
home loan agreement.
[16] Closely linked to the Plaintiffs' Summary Judgement Application is
the application which seeks to have the mortgaged property of the
Defendants declared executable in terms of Rule 46A , which was served on
the Second Respondent on 10 March 2025.
[17] The Defendants vehemently opposed the suggestion that their
defence, as set out in their plea , does not raise any triable issues and
passionately averred as follows instead:
a. That the Plaintiffs did not engage with the Defendants in good
faith during the se ction 129 of the NCA proceedings, as they
failed to appreciate the sudden change in the circumstances of
the Defendants. If they appreciated the sudden change, then
they would have given detailed information as to why the
Defendants’ payment proposal was unacceptable to them.
According to the Defendants, the Plaintiffs would have to give
an explanation in court as to why the Defendants' payment
proposal was rejected. According to the Defendants, failure to
give the aforementioned information is a triable issue.
b. That i t is common cause that the Reserve Bank increased the
Repo Rate exponentially in a short space of time. It is this
increase that had a direct impac t on the Defendants’ ability to
pay their bond , even though they had already been struggling.
To top it all, so the Defendants aver, they were never consulted
by the Reserve Bank before the increases were made. The
Defendants submit further that they should have been engaged
by the Reserve Bank before the increase. So, the triable issue
that comes out of th e foregoing, according to the Defendants ,
would be for the Plaintiffs to explain to the court why they
simply chose to accept the position of the Reserve Bank and, by
so doing, exercise their discretion adversely against the
Defendants.
c. The Defendants further averred that they therefore dispute the
amounts that the Plaintiffs are alleging are owed to them by the
Defendants as they are a result of the interest rate that has been
increased without their consent.
[18] With regards to the Rule 46A application , the First Defendant averred
in his answering affidavit , that was only filed on 28 October 2025 and not
confirmed by the Second Defendant , that he realized that he may have
overlooked the issue during the hearing of 18 March 2025 and unwittingly
agreed to an order that the Summary Judgement and Rule 46A be heard
together despite non -compliance of the Rule 46A application with court
rules relating to Rule 6(5)(b) . The First Defendant did not elaborate on this
point.
Issues for determination
[19] Based on the above factual matrix, this Court was called upon to make
a determination on whether:
a. The Defendants should be granted condonation for the late
filing of their answering affidavits.
b. The Defendants’ plea, as it currently stands, does not raise any
issue for trial as a result whereof the Plaintiffs are entitled to
summary judgement.
c. The mortgaged property can be declared executable in terms of
Rule 46A.
d. If yes, whether a reserve price i n respect of the executable
property should be set.
e. The Plaintiffs are entitled to the costs of the Summary
Judgement and Rule 46A Applications , and if yes, on which
scale.
Applicable legal principles
[20] With regards to the issue of condonation, the Constitutional Court
held as follows in Van Wyk v Unitas Hospital1:
“[20] This Court has held that the standard for considering an
application for condonation is the interests of justice. Whether it is in
the interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to this enquiry
include but are not limited to the nat ure of the relief sought, the extent
and cause of the delay, the effect of the delay on the administration of
justice and other litigants, the reasonableness of the explanation for the
delay, the importance of the issue to be raised in the intended appe al
and the prospects of success.”2
1 2008 (2) SA 472 (CC).
2 Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC).
[21] Rule 32 of the Uniform Rules of Court , which governs Summary
Judgement Applications, states the following:
“(1) The plaintiff may, after the defendant has delivered a plea, apply
court for summary judgment on each of such claims in the summons as is
only—
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property;
(d) or for ejectment,
together with any claim for interest and costs.
(2)
(a) Within 15 days after the date of delivery of the plea, the plaintiff
shall deliver a notice of application for summary judgment, together with
an affidavit made by the plaintiff or by any other person who can swear
positively to the facts.
(b) The plaintiff shall, in the affidavit referred to in sub -rule (2)(a)
verify the cause of action and the amount, if any, claimed, and identify any
point of law relied upon and the facts upon which the plaintiff’s claim is
based, and explain briefly why the defence as pleaded does not raise any
issue for trial.
(c) If the claim is founded on a liquid document a copy of the
document shall be annexed to such affidavit and the notice of application
for summary judgment shall state that the application will be set down for
hearing on a stated day not being less than 15 days from the date of the
delivery thereof.
(3) The defendant may—
(a) give security to the plaintiff to the satisfaction of the court
for any judgment including costs which may be given; or
(b) satisfy the court by affidavit (which shall be delivered five
days before the day on which the application is to be heard), or
with the leave of the court by oral evidence of such defendant
or of an y other person who can swear positively to the fact that
the defendant has a bona fide defence to the action; such
affidavit or evidence shall disclose fully the nature and
grounds of the defence and the material facts relied upon therefor.”
(my underlining)
[22] In the unreported but reportable judgement Cohen N.O. and Others vs
Deans3 Nicholls JA held as follows:
“[29] The only decision to trace the history and reasoning behind the
amended procedure for summary judgment in detail is Tumileng Trading
CC v National Security and Fire (Pty) Ltd; E & D Security Systems CC v
National Security and Fire (Pty) Ltd (Tumileng). As observed by Binns
Ward J in Tumileng, most of the old authorities still apply in determining
whether a defendant has disclosed a bona fide defence. All the defendant
is required to do is disclose a genuine defence, as opposed to ‘a sham’
defence. (my underlining) Prospects of success are irrelevant and as long
as the defence is legally cognisable in the sense that it amounts to a valid
defence if proven at trial, then an application for summary judgment must
fail.
[31] The high court failed to con sider the test to be applied in deciding
whether to grant summary judgment. This was, and remains, whether the
facts put up by the defendants raise a triable issue and a sustainable
defence in the law, deserving of their day in court. The defendants must
fully disclose the nature and grounds of their defence and the material
facts on which it is founded. All a defendant has to do is set out facts
which if proven at trial will constitute a good defence to the claim.”
[23] In Joob Joob Investments v Stocks M avundla ZEK 4, Navsa JA states
the following with regard to the Summary Judgement procedure:
3 2023 [ZASCA] 56.
“[31] So too in South Africa, the summary judgment procedure was not
intended to ‘shut (a defendant) out from defending’, unless it was very
clear indeed that he had no case in the action. It was intended to prevent
sham defences from defeating the rights of parties by delay, and at the
same time causing great loss to plaintiffs who were endeavouring to
enforce their rights.
[32] The rationale for summary judgment proceedings is impeccable.
The procedure is not intended to deprive a defendant with a triable issue or
a sustainable defence of her/his day in court. Our courts, both of first
instance and at appellate level, have during that time rightly been tr usted
to ensure that a defendant with a triable issue is not shut out. In the
Maharaj case at 425G -426E, Corbett JA, was keen to ensure first, an
examination of whether there has been sufficient disclosure by a defendant
of the nature and grounds of his de fence and the facts upon which it is
founded. The second consideration is that the defence so disclosed must be
both bona fide and good in law. A court which is satisfied that this
threshold has been crossed is then bound to refuse summary judgment.
Corbett JA also warned against requiring of a defendant the precision
apposite to pleadings. However, the learned judge was equally astute to
ensure that recalcitrant debtors pay what is due to a creditor.
[33] Having regard to its purpose and its proper applic ation, summary
judgment proceedings only hold terrors and are ‘drastic’ for a defendant
who has no defence. Perhaps the time has come to discard these labels and
to concentrate rather on the proper application of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case at
425G-426E.”
4 2009 (5) SA 1 (SCA).
[24] Rule 46A which authorizes the execution creditor, with the leave of the
court, to execute against the residential immovable property of a judgement
debtor is comprehensively set out in the Uniform Rules of this Court.
[25] In Gundwana v Steko Development CC 5, stated the following when
emphasising the necessity of the court’s involvement when execution against
residential property is sought:
“[38] The decisions of this Court in Chief Lesapo v North West
Agricultural Bank and Another , and in Jaftha have challenged the notion
that the execution process needs no judicial content.
[39] In Lesapo the constitutionality of a legislative provision , providing
for the seizure of property without recourse to a court of law upon default
of payment of a debt, was successfully challenged. In the course of her
judgment Mokgoro J stated:
“The judicial process, guaranteed by s 34, also protects the
attachment and sale of a debtor’s property, even where
there is no dispute concerning the underlying obligation of
the deb tor on the strength of which the attachment and
execution takes place. That protection extends to the
circumstances in which property may be seized and sold in
execution and includes the control that is exercised over
sales in execution. On this analysis, s 34 and the access to
courts it guarantees for the adjudication of disputes are a
manifestation of a deeper principle; one that underlies our
democratic order. The effect of this underlying principle on
the provisions of s 34 is that any constraint upon a person
or property shall be exercised by another only after
recourse to a court recognised in terms of the law of the
land.”
5 2011 (8) BCLR 792 (CC).
[40] In Jaftha section 66(1)(a) of the Magistrates’ Courts Act was found to
violate section 26(1) of the Constitution to the extent that it allowed
execution against the homes of indigent debtors, where they lose their
security of tenure. In the course of discussing a remedy for the violation,
Mokgoro J commented on the suggestion made by the applicants that
judicial oversight over the execution process was appropriate in the
following terms:
“It is my view that this is indeed an appropriate remedy in
this case. Judicial oversight permits a magistrate to
consider all the relevant circumstances of a case to
determine whether there is good cause to order execution.
The crucial difference between the provision of judicial
oversight as a remedy and the possibility of reliance on ss
62 and 73 of the Act is t hat the former takes place
invariably without prompting by the debtor. Even if the
process of execution results from a default judgment the
court will need to oversee execution against immovables.
This has the effect of preventing the potentially
unjustifiable sale in execution of the homes of people who,
because of their lack of knowledge of the legal process, are
ill-equipped to avail themselves of the remedies currently
provided in the Act.”
[41] The combined effect of these two cases is that execution may only
follow upon judgment in a court of law. And where execution against the
homes of indigent debtors who run the risk of losing their security of
tenure is sought after judgment on a money debt, further judicial oversight
by a court of law of the execution process is a must.”
[26] The court then went on to caution as follows in the same matter of
Gundwana:
“[53] Some further cautionary remarks are called for. It is rather ironic
that the effect of this judgment is to restore to the courts a function that
they exercised for close on a century before the introduction of rule 31(5)
in 1994. The change to the original position has been necessitated by
constitutional considerations not in existence earlier, but these
considerations do not challeng e the principle that a judgment creditor is
entitled to execute upon the assets of a judgment debtor in satisfaction of a
judgment debt sounding in money. What it does is to caution courts that in
allowing execution against immovable property due regard sh ould be
taken of the impact that this may have on judgment debtors who are poor
and at risk of losing their homes. If the judgment debt can be satisfied in a
reasonable manner without involving those drastic consequences that
alternative course should be j udicially considered before granting
execution orders.
[54] In Jaftha, Mokgoro J, before listing some relevant factors that needed
to be considered in judicial oversight of the execution process, warned that
“it would be unwise to set out all the facts th at would be relevant to the
exercise of judicial oversight.” Mindful of that warning, I would merely
add the following. It must be accepted that execution in itself is not an
odious thing. It is part and parcel of normal economic life. It is only when
there is disproportionality between the means used in the execution
process to exact payment of the judgment debt, compared to other
available means to attain the same purpose, that alarm bells should start
ringing. If there are no other proportionate means to attain the same end,
execution may not be avoided.”
Submissions made with regard to the condonation application.
[27] The crux of the First and Second Defendant’s averments , as made in
their answering affidavit, is that they were experiencing marital problems as
their answering affidavit, is that they were experiencing marital problems as
a result of a change in their lifestyle. These marital problems have resulted
in the Second Defendant refusing to cooperate with the First Defendant as
far as the timeous finalisation and the filing of the answering affidavit is
concerned. This stalemate was only broken by the intervention of both sets
of parents, as is generally the case in the Nguni culture, on 20 October 2025.
The Defendants went on to submit that the issues raised in their answering
affidavit are not as simplistic as conceived by the Plaintiff , and it’s on that
basis that they pray to this Court to condone the late filing of the answering
affidavit.
[28] Plaintiff’s attorneys did not file any affidavit in opposition to
condonation, but their counsel submitted from the bar that the explanation
for the delay is unreasonable. The least the Defendants could have done
when faced with the alleged difficulties was to contact the attorneys for the
Plaintiffs and advise them of the difficulties they are facing , which have
made it impossible for them to meet the deadline of the filing of the
answering affidavit. Plaintiff’s counsel also highlighted to the Court that the
Defendants have a pattern of not complying with the rules of court in that
they had to be served with a Notice of Bar before filing their plea , and that
they had failed to timeously file their answering affidavit on the previous
hearing date , which then necessitated this matter to be postponed to 27
October 2025.
Submissions made with regard to the Summary Judgement Application
[29] The Plaintiffs’ counsel submitted that for one to avoid summary
judgement, one has to set out facts (by way of admissible evidence of
someone who can swear positively thereto) which, if proven at trial, would
amount to a defence to the Plaintiff’s claim with sufficient particularity to
enable the Court to judge his bona fides. The defence must not be presented
in a manner that is needlessly bald, vague or sketchy.
[30] Counsel for the Plaintiffs then proceeded to highli ght the factual
inaccuracies pertaining to the defences raised by the Defendants as follows:
a. That, contrary to what is now pleaded by the Defendant s, the
Defendants did agree to a variable interest rate. Paragraph 9.4
of the mortgage loan agreement that was signed by the
Defendants clearly states that the Plaintiffs may increase or
reduce Defendants’ repayment amount according to the
change in interest rate to ensure that Defendants mortgage loan
is repaid in the same time as it would have been had the interest
rate not changed.
b. That the Defendants did receive the section 129 (read together
with section 130) notices in terms of the NCA, and that they
engaged with the legal representatives of the Plaintiffs in an
attempt to reach a payment agreement, which was not
concluded within the prescribed period. It is therefore factually
incorrect for the Defendants to allege that their payment
proposals were ignored , as the Plaintiffs’ attorneys made a
counterproposal that was not accepted by the Defendants.
[31] Despite the aforegoing, the interest rate argument and the alleged non-
compliance with the provisions of the NCA do not, nevertheless, give rise to
triable issues, Counsel for the Plaintiffs submitted.
[32] The Defendants submitted that their opposition is threefold:
a. That after receipt of the section 129 notice, the Defendants
engaged with the Plaintiffs and made a clear proposal, which
was simply ignored. The Defendants , therefore, submit that the
Plaintiffs engaged in section 129 of the NCA proceedings
simply to comply with the procedural requirements of the NCA.
b. That the Plaintiffs should not have adopted the interest rates of
the Reserve Bank, especially if one has regard to the effects of
COVID-19, which summarily suspended the income-generating
capabilities of the Defendants whilst expecting them to keep up
with their bond repayments. The Defendants also submitted that
they do not understand why Plaintiffs never saw it necessary to
also suspend pay ments, given that COVID-19 was a Force
Majeure.
c. The Defendants therefore dispute the amounts that the Plaintiffs
are alleging are owed as they are a result of the interest rate that
has been increased without their consent.
[33] They submitted further that none of the issues raised by them in the
plea and answering affidavit can be cured without the need for a trial in
order to properly traverse them through the direct evidence from the
Plaintiffs and their witnesses.
Submissions made with regard to the Rule 46A application
[34] The Plaintiffs’ counsel submitted as follows regarding the
requirements of a Rule 46A application:
a. The judgment creditor who seeks an execution order against the
residential immovable property of the judgement debtor must
approach the court for an order in terms of the provisions of
Rule 46A.
b. When considering whether to declare immovable property
executable or not, the court has to consider all relevant
circumstances before granting or refusing such an order so as to
ensure that a defendant’s section 25 and 26 constitutional rights
are protected.
c. Given that such relevant circumstances fall within the
knowledge of the defendant, he or she has the duty to place
these circumstances before the court.
[35] The First Defendant prefaced his answering affidavit in opposition to
the Rule 46A application with condonation for the late filing on his affidavit
in response to the Plaintiffs application made in terms of Rule 46A based on
the same grounds outlined in the answering affidavit opposing the summary
judgement application.
[36] The First Defendant then proceeded to submit that he is of the belief
that it is not prudent for this Court to pronounce immediately as to the
executability of the property without first pronouncing on whether the
summary judgment application should succeed or not.
[37] The First Defendant submitted further that once this Court decides on
the fate of the summary judgement application and they are privy to the
reasoning, then they can be in a position to advance well-informed
submissions against execution.
[38] The First Defendant concluded by saying that it is impossible for him
and his spouse to make proper submissions regarding the Rule 46A
application.
Discussion and findings
[39] The explanation provided by the Defendants for the delay in filing
their answering affidavits to both the summary judgement application and
Rule 46A application might not be extensive , but one cannot say that it was
unreasonable given the circumstances they f ound themselves in. Moreover,
the nature and consequences of the relief that were sought against them will
have far-reaching consequences should they be granted. Therefore, the
interest of justice dictated that the condonation applications for the late filing
of the answering affidavits in respect of both the summary judgement
application and the Rule 46A should be granted herein.
[40] The first attack advanced by the Defendants to the summary
judgement application was that the Plaintiffs did not engage in the section
129 proceedings with the Defendants in good faith because they did not
furnish the Defendants with an explanation as to why the restructured
approach towards the bond repayment tabled by the Defendants was not
good enough.
[41] To make a determination on the above, one has to give an analysis of
what exactly transpired after the section 129 letter was served by the Sheriff
on the Defendants on 6 December 2023. It must be placed on record that the
Defendants were already in arrears by an am ount of R114 184.12 at th at
point. The papers filed herein showed that there was no reaction at all
received from the Defendants after receipt of this letter.
[42] The Plaintiffs had to send a second section 129 letter by email to the
First Defendant on 20 March 2024, whereafter the following occurred:
a. The Defendants committed to making a payment of R60 000.00
at the end of March 2024 , whilst the arrear amount was
R200 290.54.
b. On 27 March 2024, the Defendants committed themselves to
making a monthly payment of R20 000.00, provided that
R13 000.00 of this amount is fixed and not affected by the repo
rate.
c. On 2 April 2024, the Defendants made a payment of
R40 000.00, which reduced the arrears to R160 290.54, but they
only made the next payment in the amount of R21 517.19 on 21
June 20 24; at this point , the arrears had climbed back to
R203 437.90.
d. On 5 July 2024, a Combined Summons was served on the
Defendants, to which they reacted by serving a Notice of
Intention to Defend and also accepted the offer to mediate
attached to the Combined Summons on 14 July 2024.
e. On 15 July 2024, the Plaintiffs’ legal representative invited the
Defendants to furnish them with a settlement proposal to which
they will take instructions from the Plaintiffs. The Defendants
reacted to this invitation by proposing the adjustment of the
loan agreement to give the Defendants an opportunity to
continue paying the original R13 000.00 per month , and that
they will try to settle the arrears over a period of twelve months.
f. On 16 July 202 4, the legal representatives for the Plaintiffs
responded by stating that the loan agreement itself cannot be
adjusted, but proposed that the Defendants make a payment of
at least the full instalment for the month , which at that stage
was R21 554.85. The First Respondent promptly responded to
this proposal by saying that “It would appear that the Courts
must decide on this issue . We were never party to the decision
of the Reserve Bank that now affects us and we intend to
challenge that.” It was therefore not correct for the Defendants
to allege that their payment proposal was “simply ignored”.
[43] It must be noted in relation to the above that the proposal of
R21 554.85 is not far off from the R20 000.00 that had been proposed by the
Defendants in March 2024 , and the Defendants also made a payment of
R21 517.19 to the Plaintiffs on 21 August 2024 , which is also not far off
from the amount proposed by the Plaintiffs. This calls into question the bona
fides of the Defendants when they made the R20 000.00 payment proposal
and when they rejected the proposal made by the Plaintiffs on 16 July 2024.
[44] Despite the foregoing, the Plaintiffs only resumed legal proceedings
against the Defendants on 24 January 2025 by serving a Notice of Bar on the
Defendants after realising that the Defendants' level of indebtedness to the
Plaintiffs was increasing substantially while the Defendants were supine and
doing nothing to bring it under control.
[45] It is therefore clear from the above set of facts that it was, in fact, the
Defendants who had closed the door to further engagement herein. They can
therefore not cry foul when the Plaintiffs decided to accept their invitation to
a meeting with a judge , albeit, six months later . This court therefore f ound
that the Defendants first ground of defence is not supported by material facts
and is therefore not a genuine defence.
[46] With regard to the second defence advanced by the Defendants , the
following must be recorded:
a. From the Court's reading of the papers filed herein , it’s quite
clear that when the interest rate was standing at 11.05% in the
first quarter of 2020, the Defendants’ mortgage loan account
was not in arrears. It only started to fall into arrears when the
interest rate was dropped to 9.05%, and it continued to fall into
further arrears even when the interest rate was dropped to 8.3%
to such an extent that it had to be adjusted in January 2022.
b. It was this adjustment that resulted in the Defendants' monthly
instalments moving up to R16 000.00 per month from
R13 987.11 per month , but the Defendants managed it very
well until the end of 2022 , even though the interest rate had
again cli mbed to 11.8% at that stage . It was only from the
beginning of 2023 that the mortgage loan account of the
Defendants started getting into serious problems when the
interest rate was adjusted upwards , and it has never recovered
since then.
c. It should also be recorded that this period was outside of the
National State of Disaster, which was brought to an official end
on 5 April 2022.
[47] This Court therefore f ound that the increase in interest rate and
COVID-19 are not solely to blame for the unfortunate situation the
Defendants found themselves in . The adjustment that cleared the arrears of
the Defendants while increasing the bond repayment amount to R16 000.00,
which was done in the first quarter of 2022, cannot be excluded as well. The
fact that this adjustment is not mentioned in the Defendants’ answering
affidavit has not gone unnoticed, nor is the fact that the Defendants had
agreed to the adjustment of the loan repayment amount in accordance with
the variable interest rate when they signed the mortgage loan a greement on
18 December 2019.
[48] The Defendants were also being disingenuous when they lamented not
being consulted when there is an interest rate increase, while they did not cry
foul for not being consulted when the interest rate was adjusted downwards.
This court therefore found that the Defendants’ second ground of defence is
not supported by material facts as well and is therefore nothing else but “a
sham” defence.
[49] This Court has also noted that the Defendants ha d omitted to give
details of what resulted in a change in their lifestyle and home economics.
The First Defendant simply states that he is not working but omits to say
what the employment status of the Second Resp ondent is. So, he omits to
take this Court into his confidence by disclosing all the material facts on
which his defence is premised.
[50] This Court therefore f ound that the answering affidavit filed by the
Defendants in opposition to the summary judgement application of the
Plaintiff did not disclose a bona fide defence. This Court therefore ha d no
choice but to grant summary judgement against the Defendants.
[51] Having found in favour of the Plaintiff in the summary judgement
application; this Court had to make a determination on whether the property,
which is the subject of these proceedings , can be declared executable in
terms of Rule 46A.
[52] As stated somewhere in th ese reasons, the Defendants filed a terse
affidavit in which they submitted that it is impossible for them to make
proper submissions regarding the Rule 46A application. This was submitted
after they alleged that they sought the assistance of the Department of
Human Settlements to assist them with a housing grant , which will not be
less than R250 000.00 should they succeed. This bare averment was not
supported by anything else (ie. communication between the Defendants and
the Human Settlement Department). This is all that was submitted on behalf
of the Defendants in respect of the Rule 46A application.
[53] Therefore, the Second Defendant having been served with a Rule 46A
application on 10 March 2025, the First Defendant having appeared at court
on 18 March 2025, the Defendants having failed to make submissions
relevant to the making of an appropriate order by th is Court in respect of a
Rule 46A application despite my brother, Acting Judge Kantor, having made
an order, inter alia, as follows:
a. That th e applica tions for summary judgement and in terms of
Rule 46A are postponed to the semi-urgent roll, on 27 October
2025;
b. That th e Defendants shall deliver their answering papers in
respect of the Rule 46A application and any affidavit/s opposing
summary judgement, if any, by no later than 17 April 2025.
This Court therefore grante d an execution order against the property which
is the subject of this litigation at a reserved price of R2 145 000.00.
[54] There was no doubt that the postponements of the 18th of March 2025
and 27th of October 2025 were occasioned by the lack of urgency with
which the Defendants approached these applications. The court's time and
resources were wasted in the process ; this Court therefore had to show its
displeasure by mulcting the Defendants with a punitive cost order.
______________________________
TJ MGENGWANA
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Mr. L. Wessels
Cape Bar
Instructed by: Sandenbergh Nel Haggard
For the First Respondent: In person
For the Second Respondent: First Respondent