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[2026] ZAGPJHC 265
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Changing Tides (Pty) Ltd N.O. v Tsapi (2024/070953) [2026] ZAGPJHC 265 (20 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 2024-070953
(1)
REPORTABLE:
YES /
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
.
In
the matter between:
CHANGING
TIDES (PTY) LTD N.O.
Applicant/ Plaintiff
and
ITUMELENG
TSAPI
Respondent/ Defendant
Heard:
12 November 2025
Delivered:
20 February 2026
JUDGMENT
YACOOB,
J:
[1]
The applicant/ plaintiff (Changing Tides)
sought default judgment against the respondent/ defendant (Mr Tsapi)
in terms of Rule
31(5) read with Rule 46A of the Uniform Rules on the
basis of a summons in which it sought a money judgment and
declaration that
the property put up as security by Mr Tsapi for a
home loan is specially executable. The application for default
judgment was,
in my view, hopelessly flawed, and I dismissed it.
Changing Tides requested reasons for the dismissal. These are those
reasons.
[2]
A
person’s home can only be declared specially executable by a
judicial officer who is required to exercise their discretion
after
considering all relevant factors. The principles have been
established by a number of judgments of the High Court, Supreme
Court
of Appeal and the Constitutional Court,
[1]
and have found articulation in the insertion of Uniform Rule 46A into
the Uniform Rules of Court, in November 2017.
[3]
The
reasons for these requirements are set out in the relevant judgments
and do not need to be repeated. In summary, they seek to
ensure fair
judicial process which balances and protects the constitutional
rights to housing
[2]
and not to
be arbitrarily deprived of property,
[3]
as well as the rights to be economically active and enter into
commercial agreements.
[4]
The
Constitutional Court held in
Japhta
v Schoeman
:
[4]
In
summing up, factors that a court might consider, but to which a court
is not limited, are: The circumstances in which the debt
was
incurred; any attempts made by the debtor to pay of the debt; the
financial situation of the parties; the amount of the debt;
whether
the debtor is employed or has a source of income to pay off the debt
and any other factor relevant to the particular facts
of the case
before the court.
[5]
[5]
In
Nedbank
Ltd v Mortinson
,
[6]
a Full Court of this Division determined that a creditor seeking
default judgment simultaneously with an order declaring hypothecated
immovable property executable must file an affidavit including the
amount of the arrears at the date of application, whether the
immovable property was acquired with a state subsidy; whether the
property is occupied or not; whether it is used for commercial
or
residential purposes and whether the debt sought to be enforced was
incurred to acquire that property.
[7]
I set this out to demonstrate that credit providers have known for at
least twenty years that that information was necessary
in this
Division when seeking this kind of relief.
[6]
This Division then inserted Chapter 10.17
into its Practice Manual, setting out exactly what an application
must put before the
court to enable the court to exercise its
discretion judicially when dealing with property which may be the
primary residence of
the defendant. This paragraph specifies that it
is to be read with Rule 46A. It sets out a number of requirements,
dealing with
service and the manner in which an application is to be
considered.
[7]
Chapter 10.17 requires the applicant to
provide details of attempts made by the applicant to contact the
respondent to negotiate
how foreclosure may be avoided, and that the
information referred to in Rule 46A (5) and (9)(b) must be included.
It also refers
to the fact that Rule 46A (6) sets out the rights of
the respondent.
[8]
The template for the affidavit in terms of
Chapter 10.17 of the Practice Manual requires the applicant’s
attorney to confirm
that the relevant requirements are fulfilled in
the papers before the court and to refer the court to where in the
papers the necessary
information can be found. This is
clearly an attempt on the part of the court to ensure that a legal
practitioner drafting
papers keeps those requirements in mind from
the outset, knowing that they would eventually have to depose to an
affidavit showing
that they are there.
[9]
Unfortunately, these affidavits seem to be
considered to be a matter of rote and substantive fulfilment of the
requirements is rare.
[10]
In
addition to referring to the relevant judgments dealing with
foreclosure, Chapter 10.17 refers to the
locus
classicus
when it comes to affidavits,
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
,
[8]
in which the court clearly sets out how evidence must be placed
before the court in an affidavit. Every legal practitioner ought
to
be familiar with the section of the judgment titled “The law
relating to the content of affidavits generally”.
[9]
Of particular importance are that the (primary) facts “must be
set out simply, clearly and in chronological sequence and
without
argumentative matter”,
[10]
and that
it
is not open to an applicant or a respondent to merely annexe to its
affidavit documentation and to request the Court to have
regard to
it. What is required is the identification of the portions thereof on
which reliance is placed and an indication of the
case which is
sought to be made out on the strength thereof.
[11]
The Chapter 10.17
affidavit is in my view clearly intended to assist legal
practitioners with doing this last.
[11]
Too often, an applicant for default
judgment and special executability pays lip service to the
requirements, either referring to
information that is not before the
court or making assertions that are not supported by the papers.
There is no compliance with
the basic rules of evidence and
affidavits, let alone the specific requirements for applications of
this type. Applicants in this
situation seem unfazed by repeated
removals from the roll because of shortcomings in their applications,
and take advantage of
the leniency of the court allowing them to
repeatedly supplement their applications. Not only does this result
in unwieldy court
files, the clogging of court rolls with matters
that ought not to be there, and a waste of judicial resources with
judges having
to read and re-read multiple affidavits on multiple set
down dates, there is also the risk of unnecessary compounded costs
being
added to the account of the hapless respondent/ defendant whose
loan agreement makes them liable for debt recovery costs.
[12]
In this case, as I have suggested, there
are a number of shortcomings in the application for default judgment
and special executability,
which mean it cannot be granted. The
dismissal of an application for default judgment does not cause any
prejudice to the plaintiff,
as it does not determine the main action.
Leave to supplement is an indulgence, not a right. It is as simple,
if not simpler, for
the plaintiff to bring a fresh application for
default judgment and special executability, which fulfils the
requirements and makes
out a case. A court and a defendant/respondent
would not then have to wade through a number of affidavits and
documents in order
to determine either what case to meet or whether
an order may granted.
[13]
In addition, counsel for Changing Tides’s
only submission in support of a removal from the roll with leave to
supplement was
that the dismissal would lead to delay. It is not
clear how there would be any more delay if a proper affidavit were
filed as a
founding affidavit than if it was filed as a supplementary
affidavit. There would still need to be proper service, and in fact,
Changing Tides having obtained an order authorising substituted
service on Mr Tsapi for all process in this matter, that would
be as
easily accomplished with a fresh application.
[14]
I cannot think of any other factors that
would prejudice Changing Tides, nor did counsel suggest any to me.
These, in general, were
the reasons why the application for default
judgment was dismissed. However I deal with all the shortcomings of
the application
in more detail below.
[15]
Changing Tides’s affidavit in support
of the application in terms of Rule 46A makes the following
allegations, with shortcomings
as identified.
(a)
Mr Tsapi has made no payments since 1 June
2024. There is no reference to a specific annexure from which this
can be determined.
The same paragraph refers to a certificate of
balance dated 1 June 2024, but that certificate is not annexed to the
affidavit,
nor does the affidavit inform the court where it may be
found.
(b)
Mr Tsapi’s last payment was made in
November 2023. This is allegation is made as if the allegation
regarding no payments since
June 2024 had not been made. It raises
questions in the mind of the reader regarding the details of the
payment history.
(c)
There is no allegation regarding when and
how Mr Tsapi breached the loan agreement. Mr Tsapi’s full
payment history is not
described.
(d)
The paragraph allegedly in fulfilment of
the requirements of rule 46A (and to which the Chapter 10.17
affidavit refers) simply says
that Changing Tides does not have the
necessary information. Nothing is said about what attempts, if any,
have been made to procure
that information.
(e)
The deponent states that Changing Tides
does not know anything about Mr Tsapi’s financial strength
relative to it, but is
nonetheless able to make the bald allegation
that Mr Tsapi does not have the means to satisfy the debt other than
by Changing Tides
executing on the property. It is unclear how Mr
Tsapi was able to obtain a loan with no information about his
financial position,
nor how Changing tides knows the debt cannot be
satisfied in any other way.
(f)
The allegation is made that neither
Changing Tides nor the lender with whom the loan agreement was
concluded is aware of whether
the property was acquired with the
assistance of a state subsidy. This allegation is surprising as a
lender is required to ascertain
the source of funds, and also would
know that the question of a state subsidy is relevant in the event of
default. The failure
to obtain this information in advance is
difficult to understand, particularly since, as I have set out above,
it has been a requirement
in this court for over twenty years. A
lender should as a matter of course enquire whether a state subsidy
is being used when a
home loan is considered.
[16]
In addition, it is by now well established
that a court must take into account the debtor’s payment
history, for example whether
this is a first default, whether there
was full payment for twenty years and then a sudden lapse, continued
defaults followed by
payment of the arrears in full, or whatever the
case may be. However this information is not set out in the
affidavit. Instead,
there is an annexure of a statement from which Mr
Tsapi’s payment record must be gleaned. The court is expected
to find the
number of breaches and date of breaches itself from
looking at the payment history. This is clearly inconsistent with the
requirements
of
Swissborough
.
[17]
There is a bald allegation that “numerous
attempts” were made to assist Mr Tsapi, without particularising
these. There
is a list of how many messages were sent or telephone
calls were made but not what the outcome was. There appears to
have
been only one telephone call. Whether these messages and the
telephone call can be considered to have been
bona
fide
attempts to avoid foreclosure
cannot be determined from the information provided.
[18]
In addition, there was no evidence that the
application had been served in accordance with the substituted
service order that had
been obtained.
[19]
The 10.17 affidavit filed on behalf of
Changing Tides is similarly problematic. The first requirement, as
set out in the affidavit
template, is that the deponent is satisfied
that a proper cause of action has been disclosed and there is not
mere reliance on
a security instrument, and requires the deponent to
refer to the specific paragraphs and the specific pages where each
relevant
allegation and the loan agreement and other relevant
document appears. Instead, this affidavit blandly refers the court to
the
particulars of claim and its annexures (which total over 90
pages). The court must find out for itself what is where.
[20]
The next requirement is that the person
must swear that there is compliance with Rule 18(6) and identify the
page numbers from which
this compliance can be seen. In this
affidavit, the deponent merely alleges that he is satisfied that
there is compliance with
Rule 18(6). Alternatively, the template
requires the deponent to state that that sufficient facts have been
disclosed and set out
for a proper cause of action and to identify
the page and paragraph numbers. In the affidavit before me, there is
simply a bald
allegation that sufficient facts have been disclosed to
found a proper cause of action, with no reference to paragraphs and
page
numbers.
[21]
Then,
in purported compliances with the judgments of
Mortinson
,
Folscher
,
and
Lekuku
,
[12]
which are named in the affidavit, the deponent confirms that the
affidavit in support of the application in terms of Rule 46A “sets
out the following information (insofar as it is known to the
applicant)”. It refers to the paragraphs containing the
woefully
inadequate information that I have already referred to
earlier in this judgment.
[22]
While an applicant is only required to set
out information that is known to it, this does not release it from
the obligations to
make reasonable enquiries. Sometimes these
enquiries need amount to no more than comparing one part of the
debtor’s file
to another, and the answer will become evident.
For example, in this application, there is an affidavit in support of
the application
to authorise substituted service. It indicates that
another address was found for Mr Tsapi. That information is clearly
relevant
to and should be included in the affidavit in support of the
Rule 46A application. It is disingenuous for the deponent in the Rule
46A affidavit to simply say that the plaintiff is unable to say
whether the property is occupied by the defendant or is the
defendant’s
primary residence. The information available to the
plaintiff must be collated and placed in the affidavit in a cogent
manner to
enable the court to assess it.
[23]
The various requirements put in place are
not simply a stratagem by courts to enable more paper to be generated
by formulaic affidavits
which add no value to court proceedings. They
are there to try and mitigate the immense harm that disproportionate
foreclosure
on people’s homes can cause, while still protecting
the integrity of the commercial arrangements which give people an
opportunity
to better themselves economically.
[24]
Where a case is not made out, it is in the
discretion of the court whether to permit supplementation in terms of
Rule 6(6) or to
dismiss the application. As I noted earlier,
dismissal of a default judgment application does not finally
determine anything and
the plaintiff is at liberty to bring a proper
application.
[25]
It is for these reasons that I ordered
that:
1.
The application is dismissed.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines/ Courtonline.
The date for hand-down is deemed to be 20 February 2026.
APPEARANCES
For
the applicant:
Ms M Beckenstrater
Instructed
by:
Moodie & Robertson
For
the respondent:
No appearance.
[1]
These
include
Japhta
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
Nedbank
Ltd v Mortinson
[2005] ZAGPHC 85
;
2005
(6) SA 462
(W);
Standard
Bank of South Africa Ltd v Saunderson and Others
2006
(2) SA 264
(SCA)
;
Gundwana v Steko Development and Others
2011
(3) SA 608
(CC);
FirstRand
Bank Ltd v Folscher and Another, and Similar Matters
2011
(4) SA 314
(GNP), and
Absa
Bank Ltd v Lekuku
[2014]
ZAGPHC 244
(14 October 2014).
[2]
Section
26 of the Constitution of the Republic of South Africa, 1996
[3]
Section
25(1) of the Constitution.
[4]
Note
1 above.
[5]
At
para [60].
[6]
Note
1 above.
[7]
At
para [33].
[8]
1999
(2) SA 279 (T)
[9]
323G-325C.
[10]
324D
[11]
324F-G
[12]
All
listed in note 1 above.