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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No.: 22542/2023
In the matter between:
NEDBANK LTD Plaintiff
and
MANDLA STEPHANS Defendant
Coram: Montzinger AJ
Heard: 11 March 2026
Delivered: 26 March 2026
Summary: Application for summary judgment – Plea filed but no affidavit opposing
summary judgment – Defendant represent s himself but not present at court when
summary judgment application is heard – Whether a court consider ing a summary
judgment application is obliged to consider the defences raised in the plea where there is
no opposition under oath in the summary judgment application – Consideration of
whether Rule 46A justifies the immovable property being sold in execution – Summary
judgment and Rule 46A granted.
ORDER
1. Summary Judgment is granted against the defendant for payment in the amount
of R 1,683,966.55.
2. Interest on the amount in paragraph 1 at the rate of 10.75% per annum from 1
November 2023 calculated daily and compounded monthly, to date of payment.
3. Costs on a party and party scale, with counsel’s fees on a party and party scale.
4. The immovable property described as Erf 2[...] Sandown, in the City of Cape
town, Cape Division, Western Cape Province, in extent 336 square metre and
held by deed of transfer number T[...] is declared especially executable.
5. The Registrar of this Honourable Court is authorised to forthwith issue a
warrant of attachment as envisaged in terms of Rule 46(1)(a) of the Uniform
Rules of Court.
6. The sale in execution of the Property shall be subject to a reserve price of
R1,700 000,00.
JUDGMENT
Montzinger AJ
Introduction
[1] This is an application for summary judgment together with an application in terms
of Uniform Rule 46A for an order declaring the mortgaged immovable property
executable.
[2] The matter was enrolled on the unopposed motion court roll on 11 March 2026.
The defendant was served with the summary judgment application, the Rule 46A
application, and a notice of set -down enrolling the matter on the aforementioned
date. The defendant failed to appear and to file an affidavit in opposition to either
application.
[3] The plaintiff's claim arises from a home loan agreement concluded between the
parties on 3 November 2017, pursuant to which the plaintiff lent and advanced
monies to the defendant in the amount of R1,746,800.00. The loan agreement was
in respect of the defendant’s immovable property situated at 7 [...] C[...] Crescent,
Sandown, also known as Erf 2[...] Sandown.
[4] A covering mortgage bond was registered over the immovable property, in favour
of the plaintiff. In terms of the bond, the defendant acknowledged indebtedness to
the plaintiff in the capital sum of R1,746,800.00, together with interest and an
additional cover amount of R437,000.00 for costs and charges.
[5] The defendant has fallen in arrears with the repayment of the monthly installments
in a rather su bstantial amount. As of 28 October 2025, the outstanding balance
had escalated to R2,071,326.47 and the defendant's arrears had grown to
approximately R444,921.14. By February 2026, the arrears stood at R512,475.18 .
The plaintiff issued action proceedings claiming payment of the sum of
R1,683,966.55, together with interest thereon and an order declaring the
immovable property executable, and costs.
[6] At the hearing of the matter I raised with plaintiff’s counsel, Ms Van Zyl, whether
the court can grant summary judgment, without considering the allegations in the
plea, even though no affidavit opposing the summary judgment was filed. Ms Van
Zyl submitted that the court could grant judgment, but that it would probably be
prudent for the court to consider the defences raised in the plea even though it was
not raised in an affidavit as required by the rule.
Litigation history
[7] The plaintiff issued summons in December 2023. After t he defendant failed to
enter an appearance to defend , the plaintiff pursued and was granted default
judgment on 3 February 2025 and obtained an order in terms of r ule 46A to sell
the property at a public auction.
[8] However, shortly before the scheduled sale in execution was due to take place the
defendant served the plaintiff with an application to rescind the default judgment.
The auction was cancelled and ultimately the plaintiff agreed to an order
rescinding the default judgment. This meant that the defendant was required to file
a plea. The defendant delivered the plea consisting of a special plea and a plea on
the merits on 14 October 2025. The plaintiff then applied for summary judgment.
[9] The summary judgment application was served on the defendant on 3 November
2025 at his domicilium citandi et executandi address being Zone 2 [...], Block
2[...], Unit [...], Langa . That street address is different from where the property
that forms the subj ect of this matter is located, being 7 [...] C[...] Crescent,
Sandown. The summary judgment application was served on Ms N Stephans, the
defendant's mother. The summary judgment application was also served on 7
November 2025 by leaving a copy on the principal door of the mortgaged
property at 7 [...] C[...] Crescent, Sandown . The Rule 46A application was
similarly served at the Langa address, being the defendant's domicilium address.
[10] Despite having recei ved proper notice of both the application for summary
judgment and Rule 46A application, no affidavit in opposition to either
application was filed by the defendant.
Legal requirements to granted summary judgment
[11] The requirements for a party seeking summary judgment is set out in Uniform
Rule 32. The legal principles that have developed around the requirements and the
application of the rule are well established. However, since the amendment of the
rule in 2019, a plaintiff may, only after the defendant has delivered a plea, apply
to court for summary judgment on any of the bases contemplated by the rule.
[12] A defendant facing summary judgment has three options. Consent to judgment or
give security for the claim amount or convince the court, on affidavit, that a bona
defence1 exist to the plaintiff’s claim. The affidavit must disclose fully the nature
and grounds of the defence, and the material facts relied upon. However, the
defendant need not prove the defence. What must be set out is merely facts which,
if proved at trial, would constitute an answer to the plaintiff's claim2.
[13] Rule 32 also requires the plaintiff's affidavit in support for summary judgment to
engage with the defendant’s pleaded defence. As was noted in Tumileng
Trading3, the amended rule requires the plaintiff's founding affidavit to address
the defendant's pleaded defences, and a failure to do so could be fatal to the
application.
1 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
3 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) paras 21 - 23
[14] In respect of evaluating whether summary judgment should be granted or not and
what is expected of a defendant seeking to successfully oppose a summary
judgment application the court said , also in Tumileng Trading 4, that the classical
formulations in earlier cases such as Maharaj5 and Joob Joob
Investments6, despite the 2019 amendment to rule 32, remain.
[15] However, even if a defendant’s defence appears weak or insubstantial, the court
retains a residual discretion to refuse summary judgment 7. This discretion allows
the court to co nsider whether granting summary judgment might result in an
injustice, particularly where there is a reasonable possibility that a fuller
exploration of the issues at trial could reveal a valid defence8.
The defences raised in the plea
[16] The distinctive feature of this matter is that the defendant filed a plea, but failed to
deliver an affidavit opposing the summary judgment application. This raises a
procedural question: must the court in the absence of an opposing affidavit, still
have regard to the defences raised in the plea? Or is it open to the court to treat the
matter as entirely unopposed and proceed to consider the summary judgment
application without reference to the plea?
[17] Under the pre-2019 version of the rule, summary judgment was applied for after
entry of appearance to de fend, and the defendant's plea would not ordinarily have
been delivered by the time the application was heard. Under the amended rule, by
4 Tumileng Trading para 13
5 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
6 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA)
7 Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2001 (1) SA 268 (SCA)
8 Breitenbach at 227 D
design, the plea precedes the summary judgment application, and the plaintiff is
required by the rule to engage with t he pleaded defence in its affidavit seeking
summary judgment.
[18] There are two possible approaches to the present situation. The first is that, since
the defendant has not filed an opposing affidavit and has not given security, the
court should treat the matter as entirely unopposed and proceed to grant summary
judgment, if such a case has been properly made out, without reference to the
plea. The second approach is that, even in the absence of an opposing affidavit,
the court retains a discretion to have regard to the defences appearing from the
plea, particularly considering the current design of the rule, which places the plea
at the heart of the summary judgment enquiry.
[19] Uniform Rule 32(5) provides that if the defendant does not give security or satisfy
the court as provided in Uniform R ule 32(3), the court may enter summary
judgment. The use of the word "may" imports a discretion. Summary judgment is
described in the authorities a s "an extraordinary and stringent remedy" 9 that
closes the door on the defendant. The court retains an overriding discretion not to
grant summary judgment10 even where the defendant has not appeared.
[20] Moreover, as I have stated Rule 32 now requires from the plaintiff to engage with
the plea, not with the opposing affidavit, since at the time the plaintiff's affidavit is
prepared, no opposing affidavit yet exists. A court hearing the summary judgment
application will thus have the defendant's plea before it, together wit h the
plaintiff's affidavit explaining why the pleaded defences raise no issue for trial. It
9 Maharaj, above, at 425H
10 Collet v FirstRand Bank 2011 (4) SA 508 (SCA) para 18
would be incongruous with the design of the amended rule for the court to ignore
the plea entirely simply because no opposing affidavit was filed.
[21] The principle articulated in Uphuhliso11 is instructive and support my approach. In
that case, the court held that a defendant's affidavit resisting summary judgment
must disclose fully the nature and grounds of the defence, and that the plea, as
read with the affidavit, with due regard being had to any divergence between
them, would have to be considered in assessing whether it is sufficient to stave off
summary judgment 12. The court in Uphuhliso also gave expr ession to what has
been termed the "divergence principle" , the rule that a defendant may not raise
defences in an affidavit resisting summary judgment that are not foreshadowed in
the plea.
[22] The converse of the "divergence principle" leads logically to the following
proposition. W here no opposing affidavit has been filed, the plea stands as the
sole basis through which the defendant has communicated a defence. In such
circumstances, the court should consider the plea to determine whether, even
accepting the best possible interpretation of the defendant's case, the pleaded
defences could constitute a bona fide defence in law that would warrant the
granting of leave to defend.
Application of the Legal Principles to the Facts
[23] I am satisfied that the plaintiff has complied with all of the procedural
requirements of Rule 32 . The defendant also received proper notice of the
11 Nedbank Limited v Uphuhliso Investments and Projects (Pty) Limited and Others 4 All SA 827 (GJ)
12 Uphuhliso para 26
application. Having considered the defendant’s plea , t he special plea, is in
substance no plea at all, but rather a request for docum ents. On the merits the
defendant makes three critical admissions in his plea that are wholly destructive of
a defence to the claim . He admits the existence of the loan agreement, the
registration of the mortgage bond, and the existence of the arrears and an
outstanding balance.
[24] The balance of the plea consists of bald denials that are not substantiated by any
material facts. The defendant's denial that the copy of the mortgage bond annexed
to the particulars of claim is the correct bond document is inherently implausible
given the other facts that are admitted.
[25] The defendant also offered only a bald denial of the plaintiff's compliance with
sections 129 and 130 of the National Credit Act (“NCA”). The defendant does not
allege that he failed to receive the notice, does not allege any specific non -
compliance with the relevant sections, and does not identify any failure by the
plaintiff. This cannot constitute a bona fide defence.
[26] Accordingly, I find that the defences raised in the defendant's plea, read with the
most generous interpretation of the plea do not constitute bona fide defences
capable of preventing the grant of summary judgment. There is also no basis on
which I can exercise my discretion agai nst granting summary judgment. The
plaintiff is therefore entitled to judgment being granted.
Application to declare property executable
[27] This aspect of the application engages the defendant's constitutional right of
access to adequate housing under section 26(1) of the Constitution of the Republic
of South Africa, 1996 and the court’s judicial oversight obligation in all cases
where execution is sought against a person's primary resi dential home. T he
requirements of judicial oversight are entrenched in Rule 46A.
[28] Rule 46A now represents the primary procedural pathway for giving effect to the
constitutional mandate in mortgage foreclosure matters. Ultimately, a court shall
not authorise execution against immovable property which is the primary
residence of a judgment debtor unless, having considered all relevant factor s, it
considers that execution against such property is warranted having considered
various factors.
[29] Rule 46A(9) provides that, in an application to sell a defendant’s primary
residence by way of public auction a court must consider whether a reserv e price
is to be set while Rule 46A(10) sets out the factors to be considered in deciding
the amount of the reserve price.
Application to the facts
[30] Having regard to the evidence before the court, there is support in the record for a
conclusion that the p roperty is not the defendant's primary residen tial home .
However, out of an abundance of caution , since the defendant represented
himself, I will rather treat the property as if i t is, as the evidence is not conclusive
that the defendant does not reside at the mortgage property.
[31] In any event, the court’s ability to exercise its discretion is limited as the
defendant placed no facts before the court regarding housing rights, p rimary
residence, or the impact of a sale in execution on his housing circumstances.
[32] I have had regard to the affidavit filed in support of the Rule 46A application. I
am satisfied that the plaintiff has complied with the procedural requirements of
the Rule. The evidence before me establishes that the plaintiff made numerous
attempts to resolve the defendant's indebtedness without recourse to execution.
The defendant has made no payments from July 2023 to October 2024 and also
for the entire 2025. The last successful payment was on 10 December 2024 in the
amount of R16,092.58, which is less than the monthly instalment. The defendant
has also demonstrated an unwillingness to engage with the plaintiff and no
inclination to service the debt or propose any alternative arrangement.
[33] The judgment debt is substantial , amounting to R2,071,326.47 as of October
2025, with arrears of R512,475.18 by February 2026. The debt is not trifling. The
defendant consciously and voluntarily hypothecated the property as security for
the loan advanced by the plaintiff, in the full knowledge that execution against the
property could follow from a default. There is accordingly no other satisfactory
means of satisfying the judgment debt. Considering all relevant factors that appear
from the record, I am satisfied that execution against the property is warranted.
[34] In respect of a reserve price I must, pursuant to Rule 46 A(9), consider whether a
reserve price should be set, and if so, at what amount . Considering the uncertainty
regarding whether the defendant regards the property as a primary residence, a
reserve price should be set.
[35] In respect of what that reserve price should be, I have considered the f actors
prescribed by Rule 46A(10) (i-ix). I have also kept in mind that the objective of a
reserve price is to align the interest of the plaintiff and defendant as far as it is
possible13 to realise as much value in the property as reasonably possible.
[36] In the exercise of my discretion in determining a reserve price I took into the
account t he market value of the property of R3,000,000, the forced sale value
R2,400,000, the amount owing under the bond R2,071,326.47, and the
outstanding levies R392,590.45 and all the other available factors that appear from
the record. In my view it would serve the interest of both the plaintiff credito r and
the defendant debtor best if an amount as close as possible to the market value of
the property could be obtain at the auction. However, I am mindful that it is highly
unlikely that the market value would be achieved considering the circumstances ,
being a court ordered sale in execution. The force sale value therefore becomes
more prominent to serve as a guide in determining the reserve price.
[37] In this case I find that a reserve price of R1, 700,000 is reasonable. The reserve
price represents 56% of the market value and 70% of the forced sale value .
Although ordinarily I would prefer a reserve price closer to 100% of the force sale
value in this instance I am having regard to the high outstanding levies amount of
R392,590.45 that would likely be h igher by the time the auction is held. That is
also a cost the prospective buyer will have to consume. In this instance the amount
of R1 700 000.00 sufficiently protects the defendant's equity interest in the
property while ensuring that the plaintiff is not prejudiced by a sale at an
unrealistically low price that would yield no meaningful reduction in the judgment
debt.
13 Absa Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ) par 65
[38] In respect of costs, I am mindful that the defendant agreed to costs on an attorney
and client scale. However, in this instance the plaintiff is not out of pocket. There
was no seriously contested litigation, the defendant represented himself and
cannot be accused of vexatious conduct in doing so. The primary purpose of a cost
order is to minimize the extent to which a successful litigant will be out of pocket
because of litigation such party not have to endure 14. There is no suggestion that
this matter warrants a punitive scale. A cost order on a party and party scale in
this case would therefore suffice.
Conclusion and order
[39] In the result the following order is made:
1. Summary Judgment is granted against the defendant for payment in the
amount of R 1,683,966.55.
2. Interest on the amount in paragraph 1 at the rate of 10.75% per annum
from 1 November 2023 calculated daily and compounded monthly, to date
of payment.
3. Costs on a party and party scale, with counsel’s fees on a party and party
scale.
4. The immovable property described as Erf 2 [...] Sandown, in the City of
Cape town, Cape Division, Western Cape Province , in extent 336 square
metre and held by deed of transfer number T[...] is declared especially
executable.
14 Mkhatshwa & Others v Mkhatshwa & 6 Others (2021) ZACC 15 para 20
5. The Registrar of this Honourable Court is authorised to forthwith issue a
warrant of attachment as envisaged in terms of Rule 46(1)(a) of the
Uniform Rules of Court.
6. The sale in execution of the Property shall be subject to a reserve price of
R1,700 000,00.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Attorneys for applicant: Harold Gie Attorneys
Counsel for applicant Ms Van Zyl