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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 78050/17
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 25/03/2026
SIGNATURE:
In the matter between:
STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
THANDO FAKU First Respondent
PATISWA PATRICIA FAKU Second Respondent
Delivered: this judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by circulation to the parties/their
legal representatives by email and by uploading it to the electronic file o f his matter
on Caselines. The date for handing down is deemed to be 25 March 2026.
JUDGMENT
CARELSE, AJ
Introduction
[1] This is an opposed application for summary judgment in terms of Rule 32 of
the Uniform Rules of Court as it existed prior to its amendment with effect from 1 July
2019.
[2] The applicant ("the bank") seeks judgment against the respondents, who are
married in community of property, for payment of the outstanding balance arising
from a home loan agreement concluded with them, tog ether with interest and costs.
In addition, the bank seeks an order declaring the mortgaged immovable property
specially executable in terms of Rule 46A of the Uniform Rules of Court.
[3] Having regard to the nature of the respondents' opposition, which i s primarily
based on points in limine and the procedural history of the matter, it is necessary to
set out the relevant factual background in some detail.
Background
[4] On 8 December 2008, the bank and the respondents concluded a written
home loan agreement.
[5] The relevant terms of the home loan agreement for purposes of this
application include the following:
(a) the loan amount was R 695 000, with the principal debt, including the
initiation fee and the first insurance premiums, amounting to R 698 990.74;
(b) the initial term of the loan was 240 months;
(c) Part A, clause 18 provides, inter alia , that the mortgage bond would
secure an additional amount equal to 25% of the bond amount;
(d) clause 8.12 provides that a certificate signed by any of the bank's
managers, whose appointment need not be proved, will, on its mere
production, be sufficient proof of any amount due and/or owing by the
respondents under the agreement, unless the contrary is proved;
(e) the respondents chose 5 […] H[...] N[...], Al berante, Alberton as their
domicilium citandi et executandi (clause 17.1 read with the heading of Part A);
and
(f) clause 17.3 requires written notice should the respondents change that
address.
[6] Pursuant to the home loan agreement, and on 6 February 2 009, the
respondents caused a mortgage bond to be registered in favour of the bank over the
immovable property described as: Erf 9[...] Randhart Extension 1 Township.
Registration Division I.R, Gauteng Province, Measuring 991 square metres, Held by
Deed of Transfer No. T[...].
[7] The relevant provisions of the mortgage bond include:
(a) clause 1.1 records that the respondents are lawfully indebted and
bound to the bank for the sum of R 695 000, together with an additional
amount of R 173 750;
(b) clause 6 provides for a certificate of balance clause similar to that
contained in the home loan agreement;
(c) the respondents, at clause 14.2, chose 2 […] M[...] Close, Randhart as
their domicilium for the service of legal processes; and
(d) clause 14.4 requires written notice should that address change.
[8] By May 2016, the respondents had fallen into arrears with their repayment
obligations. On 1 June 2016, the bank caused notices in terms of section 129 of the
National Credit Act ("the NCA") 1 to be sent to the respondents by registered post.
The notices rea ched the correct post office and a first notification was sent to the
respondents.
[9] The respondents failed to comply with the section 129 notices and the bank,
on 17 June 2016, issued summons against the respondents in this Division under
case number 48285/2016 ("the 2016 action").
1 Act 34 of 2005.
[10] The respondents subsequently made payments, which temporarily brought
the arrears up to date, and the bank consequently withdrew the 2016 action without
tendering costs.
[11] Thereafter, the respond ents again fell into arrears. On 4 October 2017, the
bank's attorneys again dispatched notices in terms of section 129 of the NCA by
registered mail to the respondents' chosen domicilium addresses, at 2 [...] M[...]
Close, Randhart and 5 […] H[...] N[...], Alberante, Alberton, respectively. The notices
reached the relevant post offices and first notifications were issued to the
respondents. The respondents failed to respond to or comply with those notices.
[12] The bank subsequently, on 14 November 2017, issued a su mmons under the
present case number (78050/17), seeking payment of the outstanding indebtedness
arising from the loan agreement and an order declaring the mortgaged immovable
property specially executable ("the 2017 action").
[13] As at 12 September 2017, the bank calculated the outstanding balance on the
loan account to be R 864 135.37, together with interest thereon at the rate of 10.25%
per annum from 12 September 2017 to date of payment, together with monthly
insurance premiums of R 488.04 and assurance premiums of R 516.09 from the said
date.
[14] The respondents served their notices of intention to defend the 2017 action on
12 December 2017.
[15] Thereafter, on 22 December 2017, the bank served the present application for
summary judgment on the respondents by faxing it to their attorneys of record (a fact
not disputed during argument) and, subsequently, on 9 January 2018, effected
service at their attorneys' office address.
[16] On 27 March 2018, the respondents served their affidavit resisting summ ary
judgment.
[17] At the hearing of the summary judgment application on 14 January 2019, the
Honourable Judge Makhuvele ordered that the application be postponed sine die
and granted the bank leave to supplement its papers to comply with the provisions of
Rule 46A.
[18] Consequently, on 10 March 2021, the bank served its notice of application in
terms of Rule 46A together with an affidavit in support thereof ("the Rule 46A
affidavit"). Although the respondents delivered notices indicating an intention to
oppose the Rule 46A application, they failed to file any answering affidavit dealing
with the allegations contained in the Rule 46A affidavit or placing any information
before the Court explaining why the property should not be declared specially
executable.
[19] On 16 April 2021, the bank sought to amend its notice of application in terms
of Rule 46A. The respondents objected to the proposed amendment and the bank
did not pursue the amendment any further. In fact, it indicated in its heads of
argument that it abandons the amendment.
[20] There were also several interlocutory applications and the intervening COVID-
19 pandemic, which further delayed the matter. I was informed, from the bar, that the
various interlocutory applications brought dur ing the course of the litigation have all
since been resolved.
The issues
[21] Against this background, the issues for determination are:
(a) whether the respondents have disclosed a bona fide defence as
required by Rule 32 sufficient to defeat the application for summary judgment;
(b) whether any of the points in limine raised by the respondents constitute
a valid basis for refusing summary judgment; and
(c) whether the bank has satisfied the requirements of Rule 46A for the
declaration of the mortgaged property as specially executable.
The legal framework: Rules 32, 46 and 46A
[22] It is well established that summary judgment is a stringent remedy. The
plaintiff must verify the cause of action and the amount claimed, while the defendant
must satisfy the Court that he or she has a bona fide defence by fully disclosing the
nature and grounds of that defence together with the material facts relied upon. A
defendant must therefore set out facts which, if proved at trial, would constitute a
defence in law. 2 Bald or vague allegations will not suffice. The material facts relied
upon by a defendant must be set out with sufficient particularity to demonstrate the
existence of a defence. 3 The purpose of the procedure is to prevent defendants who
have no genuine defence from delaying the enforcement of a plaintiff's rights.4
[23] In banking matters involving mortgage bonds and loan agreements, the
evidential weight of a certificate of balance has also been recognised. In Rossouw
and Another v FirstRand Bank Ltd ,5 the Court held that where a contract provides
that a certificate of balance constitutes prima facie proof of indebtedness, such a
certificate is sufficient evidence of the amount due unless the debtor places evidence
before the Court to challenge its correctness.
[24] Rule 46A was introduced to give effect to the right of access to adequate
housing under section 26 of the Constitution, as interpreted by the Constitutional
Court in Jaftha 6 and then Gundwana. 7 These cases established that judicial
supervision is required before a debtor's home may be declared specially executable
and that such execution must be proportionate in the circumstances.
[25] Rule 46A regulates execution against residential immovable property and
requires the Court to exercise judi cial oversight before declaring a debtor's primary
residence specially executable. The rule mandates that the Court consider all
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A-E.
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A-E.
3 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B-229G.
4 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) paras
32-33.
5 2010 (6) SA 439 (SCA) at para 48.
6 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC).
7 Gundwana v Steko Development and Others 2011 (3) SA 608 (CC).
relevant circumstances, including whether there are alternative means of satisfying
the judgment debt, before granting such relief.
[26] The Constitutional Court has emphasised that execution against a p erson's
home requires judicial scrutiny and that such execution must be proportionate in the
circumstances. 8 Rule 46A, therefore, requires the Court to consider all relevant
circumstances, including the debtor's personal circumstances and whether
alternative means exist to satisfy the judgment debt.
[27] It is against this legal framework that the respondents' preliminary objections
and the merits of the application must be considered.
Analysis
The respondents' main argument at the hearing
[28] As will appear hereunder, counsel for the respondents and his instructing
attorney, who is also the first respondent, were content to argue only one point,
which, according to them, was dispositive of the whole matter. That point, as they
framed it, was that the C ourt lacked jurisdiction to hear the matter. However, it later
emerged that what was actually meant was that the summary judgment proceedings
before the Court were a nullity.
[29] That argument was premised on the following facts. The 2016 action was
issued under case number 48285/2016. The 2017 action (the combined summons)
was issued under case number 78050/17. The application for summary judgment
under the 2017 action was, however, issued under the case number 48285/2016
(the 2016 action's case number). The argument that followed was that the Court
lacked jurisdiction or that the summary judgment application was a nullity because
the 2016 action had been withdrawn and the summary judgment application could
therefore not have been issued under that case number.
8 Id at para 53.
[30] This point was raised for the first time at the hearing. It was not raised in the
respondents' heads of argument or in their supplementary heads of argument. Nor
was the submission supported by any authority.
[31] Counsel for the bank correctly pointed out that the use of the 2016 action's
case number on the summary judgment application in the 2017 action appears from
the papers to have been an obvious and bona fide mistake. The respondents were,
in any event, clearly aware of this manifest error, as they themselves used the
correct 2017 case number in their opposing affidavit and in their heads of argument.
Curiously, the respondents also used an incorrect case number (2025-78050) in their
supplementary heads of argument.
[32] The most important aspect was, however, that the respondents were unable
to demonstrate what, if any, prejudice they suffered due to the use of the wrong case
number on the application for summary judgment. The respondents' own heads of
argument effectively answer the point, where they stated:
"54 In Standard Bank of South Africa Ltd v Roestof 2004 (2) 492 (WLD) at
496F - The court found that a plaintiff should not be non -suited if the papers
are not technically correct due to obvious and manifest err ors, causing no
prejudice to the defendant, especially such as in that case where the
defendant set out what he perceived to be an answer to the plaintiffs case as
required by rule 32."
[33] The respondents' main argument advanced at the hearing is therefore without
merit.
[34] The respondents' counsel advanced two further brief submissions: (a) that the
bank failed to pursue its intended amendment of the Notice of Motion in respect of
the Rule 46A application after the respondents objected; and (b) that the bank did
not comply with section 129 of the NCA by failing to send the notices to the
respondents' new addresses, despite knowing of those addresses.
[35] The first submission is without merit. A litigant is under no obligation to
proceed with a n amendment once an objection has been raised. The second
submission is addressed under the seventh point in limine below.
[36] Even though these were the only arguments advanced by the respondents at
the hearing, the Court has nevertheless considered whe ther any other defences can
be discerned from the respondents' answering affidavit.
The respondents' answering affidavit on their indebtedness
[37] The respondents do not meaningfully engage with the merits of the bank's
claim in their affidavit, but in stead rely primarily on several points in limine , which
they contend preclude the granting of summary judgment.
[38] Their dispute concerning their indebtedness is seemingly based on payments
made in June, July and August 2016, before the withdrawal of th e 2016 action. That
withdrawal occurred because they had settled the arrears. They subsequently fell
into arrears again but notably failed to provide any evidence of any kind to dispute
their indebtedness under the 2017 action. According to the bank's reco rds, the
respondents' last payment was made on 10 March 2017. This is also consistent with
the updated home loan statement dated 4 February 2026. Those payments,
therefore, related to the arrears that gave rise to the 2016 action, and do not
constitute a defence to the indebtedness arising under the present action.
[39] The other issues raised by the respondents, which might conceivably relate to
their indebtedness, concern the so -called additional amount of R 173 750 and the
loan period. These issues were dealt with by the bank under the fifth and sixth points
in limine and I find it convenient to continue doing so. They will therefore be
addressed hereunder.
The respondents' points in limine
[40] The respondents oppose the application primarily on the b asis of eight points
in limine. These points are directed at alleged procedural or technical deficiencies in
the bank's claim, rather than at the substantive merits of the indebtedness arising
from the loan agreement.
[41] At the hearing of the matter, co unsel for the bank dealt comprehensively with
each of the points in limine raised by the respondents. Detailed submissions were
advanced both in the written heads of argument and in oral argument explaining why,
in the bank's submission, the respondents ha d failed to disclose a bona fide defence
as required by Rule 32 and why there is no merit in any of the points in limine.
[42] By contrast, despite being repeatedly invited by the Court to address these
points in limine and the submissions by the bank's counsel, counsel for the
respondents, with the assistance of the first respondent, did not substantively
engage with the majority of them. Instead, counsel indicated that the respondents
elected to stand by the contents of their opposing affidavit and the written heads of
argument previously filed.
[43] That stance does not discharge the burden imposed by Rule 32. A defendant
resisting summary judgment must place before the Court material facts
demonstrating a genuine defence. Merely standing by an affidav it, which itself
contains bald or unsubstantiated allegations, does not suffice.
[44] In determining the issues before it, the Court nevertheless assessed the
points in limine on the basis of the affidavits, the documentary record, the written
submissions and the argument presented on behalf of the bank.
First point in limine: The mortgage bond is not a liquid document
[45] The first point in limine is that the bank's claim does not qualify for summary
judgment because the mortgage bond is a continuing covering bond and therefore
not a liquid document.
[46] This contention is misconceived. The bank's claim is not founded solely upon
the mortgage bond but arises from the indebtedness created by the loan agreement
and reflected in the loan account. In addition, the bank relies on a certificate of
balance, which, in terms of the contractual provisions governing the parties'
relationship, constitutes prima facie proof of the amount owing unless the contrary is
established.
[47] Apart from bare assertions, the respondents have placed no factual material
before the Court demonstrating that the certificate of balance is incorrect. The
evidential value of su ch certificates has been recognised by the Supreme Court of
Appeal in Rossouw v FirstRand Bank Ltd.9
[48] Furthermore, in terms of the old Rule 32, summary judgment is also
competent where the claim in the summons is for a liquidated amount of money. A
"liquidated amount of money" is an amount that is either fixed or capable of prompt
and easy ascertainment from the terms of the agreement or the supporting
documents. That much is evident from the certificate of balance.
[49] In these circum stances, the respondents' objection to the liquid character of
the claim is without merit.
Second point in limine: The 2016 action was withdrawn without a tender for
costs
[50] The respondents contend that the present proceedings are defective because
an earlier action between the parties was withdrawn and the issue of costs in that
matter has not yet been determined.
[51] This submission is untenable. The earlier action was withdrawn after the
arrears, which gave rise to that action, had been settled. T he question of costs in the
withdrawn proceedings does not affect the validity of the present action, which arises
from a subsequent default. If the respondents' complaint is that they are entitled to
the costs of the withdrawn 2016 action, then they are e ntitled to follow the remedies
provided by the rules for such a situation.
9 Above n 5.
[52] Furthermore, where actions have been withdrawn but the costs have not yet
been paid, this does not provide a basis for a lis pendens defence, if that is what the
respondents rely upon. Lis pendens rests upon the existence of a pending, earlier
action and depends on the continued existence of that other action. Once it is
withdrawn, the other action is no longer in existence. The payment of costs is also
not regarded as part of the action in law, and the costs procedure does not form part
of the original action between the parties.10
[53] The second point in limine must therefore fail.
Third point in limine: The application is an abuse of process
[54] The respondents further contend that the institution of the present
proceedings constitutes an abuse of the court process because the bank withdrew
the earlier action and instituted fresh proceedings. This is related to the second point
in limine.
[55] This argument cannot be sustained. The earlier action was withdrawn after
the respondents remedied their default by settling the arrears. When the
respondents subsequently defaulted again, a new cause of action arose.
[56] The mere institution of fresh proc eedings in such circumstances does not
constitute an abuse of process. The principles governing abuse of process were
authoritatively stated by the SCA in Price Waterhouse Coopers Inc ,11 and none of
those circumstances arise, nor have they been properly al leged or proved in this
case.
[57] No facts have been placed before this Court suggesting mala fides or an
improper purpose on the part of the bank.
10 Body Corporate of Valence House (SS: 183/1992) v Malani NO and Others [2015] JOL 33407 (KZD)
at para 7(c) referencing RSA Faktors Bpk v Bloemfontein Township Developers (Edms) BpkenAndere
1981 (2) SA 141 (O).
11 Price Waterhouse Coopers Inc and Others v National Potato Co -Operative Ltd 2004 (6) SA 66
(SCA) at para 50.
[58] The third point in limine is therefore unsustainable and must fail.
Fourth point in limine: The inclusion of insurance and assurance premiums
[59] The fourth point in limine relates to the inclusion of insurance and assurance
premiums as part of the indebtedness claimed by the bank. This, according to the
respondents, means that the claim is not liquid and further that, due to their
allegation that the assurance has lapsed, the monthly instalments are no longer
correct.
[60] The loan agreement expressly provides for such premiums to form part of the
respondents' contractual obligations. Moreover, the certificate of balance relied upon
by the bank reflects the amount outstanding on the account.
[61] The respondents have not demonstrated that any amount included in the
certificate is contractually impermissible or factually incorrect.
[62] Their objection in this regard is without merit and the fourth point in limine
must fail.
[63] However, the bank sought an order directing the respondents to pay the
monthly insurance and assurance premiums reflected in the summons from 12
September 2017 to date of payment. In my view, such relief is neither necessary nor
appropriate in the present proceedings. The certificate of balance relied upon by the
bank certifies the amount owing under the loan agreement and provides the basis for
the liquidated monetary claim advanced in the summons. The additional premiums
referred to in the summons form part of the respondents' contractual instalment
obligations under the loan agreement and are reflected in the running loan account.
In summary judgment proceedings, the Court grants judgment for the certified
indebtedness and interest thereon, while any ongoing contractual charges remain
regulated by the loan account and do not require a separate order of Court.
Fifth point in limine: The additional sum of R 173 750
[64] The respondents further contend that the additional amount of R 173 750 is
not due and payable and may not be included in the amount claimed, as th is amount
was not agreed upon nor advanced.
[65] The evidence indicates that the additional amount was expressly agreed upon
in the mortgage bond as foreshadowed in the home loan agreement and that it
represents security for costs, charges and interest that may arise in connection with
the loan agreement. It does not form part of the principal debt claimed in these
proceedings.
[66] The respondents have not shown that the bank has included any amount in
the claim that was not contractually due . The fifth point in limine must accordingly
also fail.
Sixth point in limine: The loan period issue
[67] The sixth point in limine concerns an alleged discrepancy relating to the
duration of the loan agreement and the calculation of the monthly instalme nts. It was
not clearly articulated how this issue constitutes a defence to the bank's claim.
[68] Even if such discrepancy existed, the undisputed evidence shows that the
respondents failed to make the payments necessary to maintain the loan account in
good standing. It remains undisputed that at the time this action was instituted, their
last payment was on 10 March 2017.
[69] The issue raised, therefore, does not constitute a defence to the bank's claim.
[70] The sixth point in limine must, therefore, also fail.
Seventh point in limine: Section 129 of the NGA
[71] The respondents further contend that the bank failed to comply with the
requirements of section 129 of the NCA.
[72] The evidence before the Court indicates that the statutory notices were
dispatched by registered mail to the domicilium addresses chosen by the
respondents. The tracing results reveal that the notices were received at the relevant
post office and that a first notification was sent to the respondents. It follows that the
bank had, in fact, complied with the requirements of section 129 of the NCA.
[73] The Constitutional Court has made it clear that delivery of such notices occurs
once the credit provider has taken the steps required by the NCA to bring the notice
to the consumer's attention. The Constitutional Court in Kubyana12 further held that if
a consumer had elected to receive notices by way of registered mail, the consumer
must respond to notifications from the post office requesting the consumer to collect
registered items, unless, in the circumstances, a reasonable person would not have
responded.
[74] At the hearing, the respondents further argued, without providing any context
or evidence, that they had changed their domicilium addresses and that the bank
was aware thereof. However, when pressed to produce evidence showing that the
respondents had done so in writing, as required by the agreements between the
parties, their counsel was unable to do so. No other evidence could be found on the
papers that the r espondents informed the bank that they had changed their
domicilium addresses.
[75] The respondents have not demonstrated that the bank failed to comply with
these requirements. The seventh point in limine, therefore, cannot succeed.
Eighth point in limine: The application was brought out of time
[76] The final point in limine concerns the timing of the summary judgment
application. The respondents submitted that the application was served outside the
prescribed 15-day period provided for in the rule.
12 Kubyana v Std Bank of South Africa Limited 2014 (3) SA 56 (CC) at para 43. Also see: Sebola and
Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC).
[77] The respondents served their notices of intention to defend on 12 December
2017. In these notices, they provided a fax number at which their attorneys would
accept service. The application for summary judgment was faxed to the respondents'
attorneys on 22 December 2017, thus within the prescribed period and was
physically served on the ir attorneys thereafter, on 9 January 2018. None of this was
disputed at the hearing, and even if the application was out of time due to the
intervening December holiday period, no prejudice is evident or was alleged by the
respondents.
[78] The eighth point in limine must, therefore, also fail.
Conclusion on the points in limine
[79] For the reasons set out above, none of the points in limine raised by the
respondents constitute a valid basis for refusing summary judgment. Moreover, none
of these points was meaningfully pursued at the hearing, despite repeated invitations
from the Court to address them.
[80] The respondents have failed to disclose a bona fide defence as contemplated
in Rule 32 and the preliminary objections raised by them cannot be sustained.
[81] Each of the points in limine must accordingly be dismissed.
Should the immovable property be declared specially executable?
[82] The bank has complied with the procedural requirements of Rule 46A by
placing before the Court an affidavit add ressing the nature of the property, the
respondents' indebtedness, their payment history, and the value of the property.
[83] The bank has produced an updated certificate of balance, dated 4 February
2026, confirming that the respondents are indebted to i t in the amount of
R 2 006774.04, together with interest at 10.25 % per annum from 4 February 2026 to
date of payment. The certificate further reflects arrears in the amount of
R 1 573 888.06 and a current monthly instalment of R 23 096.20.
[84] The cert ificate of balance, dated 4 February 2026, reflects the respondents'
current indebtedness on the loan account and was placed before the Court primarily
for purposes of the Rule 46A enquiry. The monetary judgment sought in these
proceedings, however, remains the amount claimed in the summons, namely R 864
135.37, together with interest. The updated certificate, therefore, serves to illustrate
the respondents' continuing default and the magnitude of the indebtedness, but does
not alter the relief claimed in the summons.
[85] The respondents have not placed any evidence before the Court to challenge
the correctness of the certificate of balance or the calculation of the indebtedness. In
the absence of such evidence, the certificate constitutes prima facie proo f of the
amount owing in accordance with the contractual provisions governing the parties'
relationship.
[86] The bank has also placed before the Court a recent municipal account issued
by the City of Ekurhuleni, which indicates that the property is in substantial arrears in
respect of municipal rates and services. As at 26 December 2025, the outstanding
municipal balance amounted to approximately R 202 775.05.
[87] The municipal statement further reflects that the account has been in arrears
for a considerable period, with significant portions of the debt falling into the 60 -day
and 90-day arrears categories.
[88] The respondents have not placed any evidence before the Court explaining
how the municipal indebtedness will be settled or demonstrating an ability to
maintain payment of the property-related obligations going forward.
[89] The bank has also produced a n updated independent valuation report
prepared by DDP Valuers (Pty) Ltd, which values the property at R 2 200 000 and
indicates a forced-sale value of R 1 550 000.
[90] The valuation report records that the property comprises a residential dwelling
with various improvements, including a swimming pool and outbuildings.
[91] Execution against a person's home engages the right of access to adequate
housing under section 26 of the Constitution. Courts are therefore required to
provide judicial oversight to ensure that execution is justified and proportionate in the
circumstances.13
[92] In considering whether the property should be declared specially executable,
this Court has had regard to all the relevant circumstances contemplated in Rule 46A,
including t he amount of the indebtedness, the respondents' payment history, the
municipal arrears, the value of the property, and the absence of evidence from the
respondents regarding their personal circumstances or alternative means of
satisfying the judgment debt.
[93] In the present matter, several considerations weigh in favour of granting the
order sought.
[94] First, the property was mortgaged to the bank as security for the loan
agreement concluded between the parties.
[95] Second, the respondents have been in persistent default of their repayment
obligations, and the arrears have reached a substantial level. The certificate of
balance reflects arrears exceeding R 1.5 million, which indicates that the d efault is
longstanding and serious.
[96] Third, the municipal account demonstrates that the respondents have also
failed to maintain payment of municipal rates and services associated with the
property. The arrears exceeding R 200 000 further indicate tha t the respondents
have not been able to meet the financial obligations attached to the ownership of the
property.
[97] Fourth, despite indicating opposition to the Rule 46A relief, the respondents
have not placed any evidence before this Court regarding t heir personal
13 Gundwana v Steko Development and Others above n 7.
circumstances, their financial position, or any alternative means by which the
judgment debt could reasonably be satisfied.
[98] In the absence of such information, there is no basis upon which the Court
could conclude that execution against the property would be disproportionate.
[99] Having regard to the magnitude of the indebtedness, the persistent failure to
maintain payments under the loan agreement, and the additional municipal arrears, it
appears unlikely that the respondents will be able to satisfy the judgment debt
through less invasive means.
[100] In these circumstances, and in the absence of any evidence suggesting that
the indebtedness could reasonably be satisfied by less invasive means, execution
against th e mortgaged property remains the only effective mechanism available to
the bank to enforce its rights under the loan agreement.
[101] The respondents have placed no evidence before this Court suggesting that
execution against the property would render th em homeless or otherwise unjustly
deprive them of access to housing.
[102] In those circumstances, execution against the property constitutes a
proportionate and justified remedy.
[103] Rule 46A(9) further requires the Court to consider whether it is app ropriate to
determine a reserve price for the sale in execution.
[104] The determination of an appropriate reserve price remains a matter of judicial
discretion to be exercised, having regard to all the relevant circumstances of the
particular case. No rigid formula is prescribed by Rule 46A, and approaches such as
the so -called Opperman method 14 serve merely as a guideline and cannot replace
the Court's evaluation of the evidence placed before it. In any event, even if the
14 Adding the municipal value with the market value, dividing it by two and subtracting the outstanding
rates and taxes - Changing Tides 17 (Proprietary) Limited NO v Kow laser and Another 2024 JDR
3001 (GJ) at para 16.
Opperman method was applied to t he valuation evidence placed before the Court in
this matter, it would yield a reserve price broadly comparable to the reserve price
determined herein.
[105] The independent valuation indicates a market value of R 2 200 000, and a
forced-sale value of approximately R 1 550 000.
[106] The outstanding indebtedness to the bank exceeds R 2 million, while the
municipal arrears exceed R 200 000, which together represent a significant
encumbrance over the property.
[107] In determining an appropriate reserve price , the Court must strike a balance
between protecting the respondents from a sale at an unreasonably low price and
ensuring that the property can realistically be realised in execution.
[108] Having regard to the valuation evidence and the forced -sale value reflected
therein, a reserve price of R 1 400 000 represents a reasonable and equitable
reserve price in the circumstances.
[109] Such a reserve price protects the respondents from a sale at a grossly
inadequate price, while ensuring that the property remains capable of being realised
in execution.
Conclusion
[110] The first issue is whether the respondents have disclosed a bona tide defence
to the bank's claim, sufficient to defeat the application for summary judgment. In
terms of Rule 32, a defendant resisting summary judgment must d isclose fully the
nature and grounds of a bona tide defence together with the material facts upon
which that defence is founded. Having considered the respondents' affidavit, the
documentary record and the submissions made on their behalf, I am satisfied t hat
the respondents have failed to do so. The affidavit resisting summary judgment does
not identify material facts which, if proved at trial, would constitute a defence in law.
Instead, it raises a series of technical objections and speculative allegation s which
do not engage with the substance of the indebtedness arising from the loan
agreement and mortgage bond. In these circumstances, the respondents have not
raised a genuine or triable issue and the requirements for summary judgment under
Rule 32 have been satisfied.
[111] The second issue is whether any of the eight points in limine raised by the
respondents constitute a valid basis for refusing summary judgment. For the reasons
set out above, each of the points in limine is without merit. None of them establishes
a procedural or substantive defect in the bank's claim, and none constitutes a
defence to the action.
[112] The third issue concerns whether the bank has satisfied the requirements of
Rule 46A for the declaration of the mortgaged property as s pecially executable.
Having considered the evidence placed before the Court regarding the respondents'
indebtedness, their payment history, the municipal arrears, the valuation of the
property and the absence of any evidence relating to the respondents' pe rsonal
circumstances or alternative means of satisfying the judgment debt, I am satisfied
that execution against the property is justified and proportionate in the circumstances.
The bank has therefore established that the requirements of Rule 46A have bee n
met.
[113] For the sake of completeness, the applicant is not entitled to a separate order
for the payment of ongoing insurance and assurance premiums, those obligations
being regulated by the loan account as explained above.
[114] The applicant further seeks an award of costs on the attorney and client scale.
This is justified by the express terms of the mortgage bond, which provides for
recovery costs on the scale as between attorney and client.
[115] In the circumstances, the bank ha s established its entitlement to the relief
sought.
Order
[116] In the result, the following order is made:
(1) Summary judgment is granted in favour of the applicant against the
respondents jointly and severally, the one paying the other to be absolved , in
the amount of R 864 135.37.
(2) The respondents are ordered to pay interest on the aforesaid amount
at the rate of 10.25% per annum from 12 September 2017 to the date of
payment.
(3) The following immovable property is declared specially executable:
Erf 9[...] Randhart Extension 1 Township Registration Division I.R
Province of Gauteng Measuring 991 square metres
Held under Deed of Transfer No T[...]
(4) The Registrar is authorised to issue a writ of execution against the
aforesaid immovable property in terms of Rule 46 read with Rule 46A of the
Uniform Rules of Court.
(5) A reserve price of R 1 400 000 is set for the sale in execution of the
aforesaid immovable property.
(6) In the event that the reserve price is not achieved at the first auction,
the sheriff shall report the outcome of the sale to the Court together with the
information required by Rule 46A(9)(c), whereupon the applicant may
approach the Court on supplemented papers for directions regarding the
further conduct of the sale.
(7) The respondents are ordered to pay the costs of suit on the attorney
and client scale.
C CARELSE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 27 February 2026
Judgment delivered: 25 March 2026
For the Applicant: Adv M Rakgoale
instructed by Ramsay Webber Inc.
For the Respondents: Adv Z Fani
instructed by T Faku Incorporated