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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA86/2025
Reportable NO
In the matter between:
RALTON COLIN MOSES Appellant
and
GEOR GEHENR MOSES Respondent
JUDGMENT
Cengani-Mbakaza AJ
Introduction
[1] This is an appeal against the Gqeberha regional magistrate’s decision
(the court a quo), dismissing an application for a warrant of execution against
immovable property, to wit, Erf 1[...] Pearston, situated at 1[...] M[...] Street,
Pearston.
[2] The grounds of appeal are outlined in the notice of appeal dated 02 May
2025. Without detailing each ground seriatim, the appellant highlights the
following key issues: that the court erred in finding that the municipal value of
the immovable property is an amount of R17 800; it failed to consider that the
immovable property was used for commercial purposes and not a primary
residence; and that the court a quo failed to consider that the respondent lacked
sufficient means to satisfy the judgment debt.
[3] The respondent oppos es the appeal, stating that he will endeavour to
resuscitate his business and liquidate the debt. Furthermore, so he claims, the
sale of property will take away his ability to earn an income and settle the
appellant’s debt.
The background
[4] On 19 May 2023, the appellant obtained a judgment against the
respondent in the following terms:
‘(a) That the cancellation of the agreement between the plaintiff and the defendant is
confirmed;
(b) The defendant is ordered to pay the sum of R319 500;
(c ) Interest on the sum of R319 500 at the prescribed legal rate calculated from the date of
judgment to the date of payment in full;
(d) The defendant is hereby ordered to pay costs of the action on party-and-party scale.’
[5] Subsequently, the appellant’ s bill of costs was taxed in the amount of
R11 739. Despite certain payments being made in the appellant’s account, the
debt remained unsettled.
[6] On 03 February 2025, the Deputy Sheriff returned the warrant of
execution against the movable property, indica ting insufficient attachable
movable assets to satisfy the judgment debt.
[7] The respondent subsequently visited the appellant’s home and undertook
to make payment towards reducing the debt before the end of April 2024, but he
failed to make any further paym ent. Due to the respondent’s failure to pay the
debt as agreed, the appellant brought an application for execution against the
immovable property in terms of s 66(1) of the Magistrates’ Court Act, 32 of
1994 (the Act).
The legal framework
[8] Section 66 of th e Act provides the execution against immovable
property in instances where the judgment debtor has failed to satisfy the debt,
and where the attachment of movables is not feasible due to insufficient assets.
[9] The relevant section provides:
‘66 Manner of execution
(1) (a) Whenever a court gives judgment for the payment of money or makes an order for
the payment of money in instalments, such judgment, in case of failure to pay such
money forthwith, or such order in case of failure to pay any instalment at the time and
in the manner ordered by the court, shall be enforceable by execution against the
movable property and, if there is not found sufficient movable property to satisfy the
judgment or order, or the court, on good cause shown, so orders, then against the
immovable property of the party against whom such judgment has been given or such
order has been made. (my underlining)
(b) Upon such failure to pay any instalment in accordance with any court order,
execution may be effected in respect of the whole of the judgm ent debt and of costs
then still unpaid, unless the court, on the application of the party that is liable, orders
otherwise.’
[10] The constitutional validity of s 66(1)(a) of the Act was tested in Jaftha v
Schoeman and Others, Van Rooyen v Stoltz and Others (Jaftha)1. The
Constitutional Court (CC) in Jaftha2 emphasised the importance of judicial
oversight in matters involving execution against the immovable property of a
judgment debtor.
[11] The CC concluded that s 66(1)(a) of the Act should be read as though
the words ‘a court, after consideration of all the relevant circumstances, may
order execution ’ appear before the words ‘against the immovable property of
the party’.
At paragraph 52, the court held that:
‘I have held that section 66(1)(a) of the Act is overbroad and constitutes a violation of section
26(1) of the Constitution to the extent that it allows execution against the homes of indigent
debtors, where they lose their security of tenure. I have held further that section 66(1)(a) is
not justifiable and cannot be saved to the extent that it allows for such executions where no
countervailing considerations in favour of the creditor justify the sales in execution. I now
turn to the appropriate remedy.’
[12] In relation to the appropriate remedy, the CC w as persuaded that an
appropriate remedy would require a creditor to approach a court for execution
against the judgment debtor’s immovable property, and the court would then
order execution only if the circumstances of the case make it appropriate. At
paragraph 55, the CC held that:
‘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 sections 62 and 73 of the Act
is that 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
1 (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004).
2 Ibid.
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, a re ill-
equipped to avail themselves of the remedies currently provided in the Act.’(accentuation
added)
[13] The CC emphasised the principle of judicial oversight, utilising the
phrase ‘on good cause shown’, which is also applicable to the wording of s
66(1)(a) of the Act. Essentially, the circumstances constituting ‘good cause’ will
be contingent upon the specific facts of the case.
[14] The practical effect of Jaftha is that, among the relevant circumstances
that must be considered, the court dealing with execution against the immovable
property must examine whether the property is a primary residence of a
judgment debtor . Thus, pursuant to Jaftha, the rules of the magistrates’ court
(and those of the high court) were amended. They distinguish between
immovable property that is the primary residence of the judgment debtor, on the
one hand, and other immovable property, on the other.
[15] Magistrates’ Court Rule (MC Rul e) 43A outlines the court’s procedure
for execution against a judgments debtor’s primary residence, which seeks to
protect homeowners from losing their homes unfairly. In respect of other
immovable property MC Rule 43 is applicable. The relevant provision provides:
‘Subject to the provision of Rule 43A, no warrant of execution against the immovable
property of any judgment debtor shall be issued unless-
(a)
(i) a return has been made of any process issued against the movable property of the
judgment debtor from which it appears that the said person has insufficient movables
property to satisfy the warrant or;
(ii) such immovable property has been declared to be specifically executable by the
court.
The findings of the court a quo
[16] The magistrate, correctly, recognised that she was required to consider
all relevant circumstances before she could order execution. She found, in the
exercise of her judicial oversight, that the immovable property did not have
sufficient equity to satisfy the debt owed and that r espondent had made various
payments in an attempt to settle the judgment debt. Hence, she considered that
execution would not be just and she dismissed the application.
The material evidence
[17] I turn to the facts underpinning the findings of the court a quo. It is
convenient to first address the latter finding, that the respondent has made
various attempts to settle the judgment debt. It was common cause that the
respondent had made various payments to the applicant after the issue of
summons, but befo re the default judgment was granted. These payments were
accounted for in determining the amount of the judgment debt. They have no
impact of the present application. However, the respondent purported to dispute
the amount of the outstanding debt, and al leged that payments that he had made
after the judgment had not been accounted for by the applicant. In his
answering affidavit, he said:
‘I have made several other payments into the applicant’s bank account specifically on 7 May
2024. I further recall s everal other payments in 2024 and will endeavour to obtain proof of
same …’
The response, which the court a quo appears to have accepted, is unduly coy.
He does not say when these payments were made or what the amounts were, nor
does he say how the paymen ts were made or from what bank accounts they
were paid. He provided no record of these payments, which must be in his
possession.
[18] The approach to evidence in application proceedings is now well -
established. In Plascon-Evans Paints3 Corbett JA explained:
‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent, justify such an order. The
power of the court to give such final relief on the papers before it is, however, not confined to
such a situation. In certain instances the denial by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or bona fide dispute of fact … If in such
a case the respondent has not availed himself of his right to apply for the deponents
concerned to be called for cross-examination … and the court is satisfied as to the inherent
credibility of the applicant's factual averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines whether the applicant is
entitled to the final relief which he seeks ….’
[19] Not every denial constitutes a real, genuine or bona fide dispute of fact.
In Wightman4 Heher JA explained:
‘A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the disputin g party and nothing
more can therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such that the disputing party
veracity or accuracy of the averment. When the facts averred are such that the disputing party
must necessarily possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have difficulty in finding that the test
is satisfied.’
[20] The respondent’s denial of the outstanding quantum and of the
applicant’s averment that he has failed to make payments in reduction of the
3 Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) 623 (A) at 634H-635B.
4 Wightman t/a JW Construction v Headfour (Pty) Limited and Another 2008 (3) SA 371 para 13.
debt fall fairly within the categ ory of evidence described in Wightman. It did
not raise a genuine, or bona fide dispute of fact. Accordingly, the court a quo
erred in its conclusion that the respondent had made various attempts to repay
the judgment debt. On a proper application of th e test to be applied in
application proceedings she was bound to find that there had been no attempt to
make any further payment after judgment.
[21] I revert to the finding that the immovable property had insufficient equity
to satisfy the debt owed. It was common cause that the immovable property has
been improved by the erection of a home on the property, however, it was not
used for residential purposes. It was the respondent’s commercial property
from which he had operated a business, selling liquor, a nd he did not reside on
the property. He said that he was not currently trading, but that he intended to
commence trading again from the property in the near future. Thus, the
respondent said that if he did not trade from the premises, he would have no
other means by which to pay the judgment debt.
[22] It appears from the judgment that the court a quo recognised that the
property was not the primary residence of the judgment debtor. However, it
relied, erroneously, on the provisions of rule 46A of the Uni form Rules of
Court, which apply only in the High Court. Although the wording of Uniform
Rule 46A and MC Rule 43A is similar, the court a quo’s reliance on Uniform
Rule 46A suggests that its decision was predicated on the wrong principle, that
the immovable property had been the primary residence of the respondent. To
this extent, the court a quo misdirected itself.
[23] The essential findings which underpin the conclusion reached in the court
a quo that the immovable property did not have sufficient equity to satisfy the
debt were two-fold. First, it found that the immovable property has a municipal
value of R17 800, and, secondly, that the municipal account showed an arrears
of approximately R15 000, which would have to be paid to the municipality
before any amount could flow to the applicant. The municipal account
presented in evidence reflects an arrear amount of R14 202,97, not R15 000,00.
The finding of the value of the property is more problematic. The respondent
did not place any value on the prop erty in this affidavit, save to say that the
property was ‘not worth much’. He attached the municipal valuation which
informed the findings of the court a quo. The valuation annexed reflects a
valuation taken from the 2012 Valuation Roll, more than ten y ears before the
litigation. Moreover, it reflects the value of the land at R17 160. It placed no
value on any improvements on the property and reflected, instead, that the
building clause was not yet due. Thus, it reflects the valuation in respect of a
vacant erf in 2012, and the valuation placed before the court could have had
little or no bearing on the sum which the property, together with the
improvements on it, was likely to fetch on the sale in execution. In this respect,
too, the court a quo had misdirected itself.
[24] Finally, the court a quo, in the exercise of its oversight, gave no
consideration to the fact that the sheriff could find insufficient movable property
to satisfy the judgment debt and that the respondent had failed to honour his
undertaking to make payment. On the respondent’s own admission, he was
unable to make payment of the judgment debt at the time of the application. He
gave no explanation of how he intended to find the means to start trading again
nor for his not trading at p resent. There is accordingly no 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.5
[25] In the result, the following order is made:
[25] In the result, the following order is made:
5 See Gundwana v Steko Development CC and Others 2011 (3) SA 608 (CC) para 54.
1. The appeal succeeds.
2. The order of the regional court is set aside and replaced with the following
order:
(i) The assistant registrar of this court is authorised to issue a warrant of
execution against the immovable property, which is described as Erf
1[...] Pearston, situated at 1[...] M[...] Street, Pearston.
(ii) The respondent shall pay the applicant’s costs.
3. The respondent shall pay the costs of the appeal, with counsel’s costs to be
taxed on scale A as contemplated in rule 67A read with rule 69 of the
Uniform Rules of Court.
_______________________
N. CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
I agree.
____________________________
J.W EKSTEEN
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant : Mr L Ncanywa
Instructed by : Litehmba Ncanywa Inc
c/o Nettletons Attorney
Makhanda
For the Respondent : Adv G R Joubert
Instructed by : Howard Collen Inc.
Gqeberha
Date heard : 06 March 2026
Date of delivery : 14 April 2026