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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number:107538 /2024
In the application between:
ALWYN RAUTENBACH Applicant
And
ANDREA BONGANI THWALA 1st Respondent
RAND BANK 2nd Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
17 April 2026
SIGNATURE DATE
SHERIFF, PRETORIA EAST 3rd Respondent
JUDGMENT
INTRODUCTION
1] There are two applications before me . The one is a n application by the
respondent, Mr Thwala, in terms of Rule 42(1)(a) of the Uniform Rules of Court,
read with common law principles , for the rescission of an order granted by
Mokose, J on 25 February 2025 , and the other is an application by the applicant
to have the immovable property, known as 4 […] G[…] F[…] Street, Silver Lakes
Golf Estate, Willow Acres, Pretoria, (hereinafter referred to as the Siver Lakes
property) declared specifically executable. I will refer to Rautenbach as the
applicant and Thwala as the respondent.
2] On behalf of Mr Thwala it is submitted that the rescission application is on the roll
for adjudication, whilst it is Mr Rautenbach’s case that it is the application to
declare the property specifically executable that is on the roll. Since all the
affidavits in both matters have already been exchanged, I will deal with both
applications simultaneously.
3] The order by Mokose J against which the respondent’s rescission application is
aimed, reads as follows:
“1. The first respondent (Thwala) is prohibited from alienating and/or
further encumbering the immovable property situated at Erf 8[…],
Willow Acres Ext. 3, held by Title Deed T[…] and also
known as 4[…] G[…] F[…] Street, Silver Lakes golf Estate, Willow
Acres, Pretoria, Gauteng, pending application for the attachment,
execution and sale of the said property in the recovery of the
judgment debt granted on 15 September 2023 by the Honourable
Magistrate Ngezi in the Magistrates’ Court for the District of
Tshwane held in Pretoria, under case number 27073/2016, interest
thereon and litigation costs incurred in relation thereto.
2. The third respondent is ordered to register a caveat against the
aforesaid property in the terms said in paragraph 1 above.
3. The respondent is directed to pay the applicant’s costs of this
application on Scale B.”
4] The relief claimed by the applicant is to the following effect:
1. That service of this application on the respondent’s attorneys and
by email to certain email addresses, be deemed proper service in
terms of rule 46A(3)(d).
2. That the Respondent’s Silver Lakes immovable property be
attached and declared to be specifically executable in satisfac tion
of all judgments and cost orders granted in favour of the applicant
against the respondent.
3. That the non-provision of the documents referred to in Rule 46A(5)
be condoned.
4. That the respondent be ordered to pay the costs of the
application on the scale as between attorney and client.
5] The relief sought in the application to declare the property specially executable
effectively supersedes paragraph 1 of Mokose J’s order and incorporates the
substance of paragraph 2. What remains for determination in relation to that
order is therefore confined to the issue of costs.
6] I will therefore deal with the application to declare the property executable and
thereafter with the rescission application.
FACTUAL BACKGROUND
7] The applicant and the respondent each owns immovable property adjacent to
each other and their dispute about their boundary wall is the cause of this
litigation war.
8] It is undisputed that the respondent, a medical doctor, has been residing in
Ottawa Canada for a considerable time and he has no moveable assets in South
Africa. His only assets in South Africa are two immovable properties, being
the Mbombela property, a townhouse where his mother resides, and the Silver
Lakes property, a large house which is the subject of this application.
9] In an affidavit by the respondent, he inter alia stated that:
“I am an adult male, South African, and employed as a Medical Doctor in
the North America, Canada, and my current place of abide is that North
American country, Canada and my currently residing at No.7[…]
S[…]L[…] Pky, Winniepeg, Manitoba, R3P2V1, Canada in the North
America.”
RELEVANT PROCEDURAL BACKGROUND
10] On 11 March 2020, t he applicant obtained a default judgment against the
respondent in the Magistrates’ Court for the amount of R148 655. 56 with interest
at the rate of 10.5% per annum calculated from 29 June 2015, being the date of
demand, to date of payment.
11] Due to the respondent’s failure to pay the judgment debt, execution
proceedings against his movables situated in Pretoria, were instituted, but
without any success.
12] The applicant then approached the Mbombela High Court for an execution
order against a property of the respondent in Mbombela.
13] The applicant unsuccessfully attempted to levy execution against the
respondent’s movables at the M bombela property, because the property was
vacant.
14] In 2021, the respondent’s debt to the applicant amounted to R 367 110.64 and
on 12 April 2021, the applic ant applied for and obtained an order in the
Mbombela High court, to have the respondent’s immovable property in
Mbombela declared executable.
15] Before a sale in execution of the property could take place, the respondent ,
approximately 19 months after the order was granted in the Magistrates Court on
11 March 2020 , applied for the rescission of the Magistrates Court’s order. The
Magistrate failed to give reasons and the matter proceeded on trial.
16] On 15 September 2023, the Honourable Magistrate Nge zi handed down
judgement in the same terms as the previous order granted on 11 March 2020.
17] The respondent’s current attorneys came on record on 10 May 2024, and an
application was issued in this Division to set aside the interdict over the
Mbombela property granted in Mbombela High Court . The application was
opposed by the app licant and notwithstanding several communications between
the attorneys and attempts to set it down , the respondent apparently did not
pursue this application.
18] The applicant then again filed an application in the Mbombela High Court to have
the Mbombela property be declared specifically executable.
19] On 18 July 2024 , after service of the latter application, the respondent filed a
Notice of Appeal against the judgment of Magistrate Ngezi which was handed
down on 15 September 2023, in the Magistrates’ Court.
20] On 31 July 2024 the attorneys for the applicant filed a notice of irregular
proceedings in terms of the Magistrates’ Court Rule 60A because the noting of
the appeal was outside the 20-day period of Rule 51(3). They contended that the
noting of the appeal is an irregular step, being 297 days out of time.
21] Due to the Notice of Appeal , the application in the Mbombela High Court was
postponed and the respondent was ordered to pay the applicant’s costs on a n
attorney and client scale. The applicant opposed the appeal on several
procedural grounds.
22] On 20 September 2024, the app licant issued an application for an interdict, to
have a caveat registered against the respondent’s Silver Lakes property. This
application was initially opposed but the notice to oppose was withdrawn on 4
October 2024. On 14 October 2024 an interim interdict in the form of a Rule Nisi,
returnable on 27 February 2025, was granted.
23] However, since the date of 27 February 2025 was erroneously allocated, the
order was amended to reflect the correct return date of 25 February 2025, and
the amended order was served on the respondent's attorneys on 10 December
2024.
24] On 19 February 2025 Magistrate Chokoe refused the applicant condonation for
the late filing of the Notice of appeal and granted an order setting aside the
notice of appeal of 24 July 2024 as an irregular step.
25] On 21 February 2025 the attorneys for th e applicant served a notice of intention
to amend, on the respondent’s attorneys. A supplementary affidavit by the
applicant’s attorney of record, explaining that since Magistrate Chokoe has set
aside the notice of appeal, the original prayer regarding t he costs of the
application is moot and the respondent should be held liable for the costs of the
application, accompanied the notice to amend.
26] In the initial notice of motion, the prayer for costs read as follows:
“2.4. That the costs of the application be costs in the appeal lodged by
the respondent except in the event of opposition, in which event the
party opposing the application be ordered to pay the costs of the
application.”
27] The Respondent did not f ile any opposing papers and did not appear on the
return date on 25 February 2025, and Mokose J granted a final order, which
included an order for costs of the application, on an unopposed basis.
28] The respondent's present application for rescission is in respect of this order, on
the basis that he was unaware thereof, that the return date had been changed to
25 February 2025 instead of 27 February 2025 , and that the applicant only
served his notice of intention to amend his notice of motion in respect of the
costs of the application, on 21 February 2025.
29] On 20 March 2025 the respondent noted an appeal against Magistrate
Chokoe’s order.
30] On 20 May 2025, the respondent launched his application to rescind the order
by Mokose J, on the basis that he intended to oppose the amendment regarding
costs of the application and was deprived of the opportunity to do so since the
notice of intention to amend was only served on 21 February 2025 and the
amendment was granted on 25 February 2025 already.
31] On 24 June 2025 the applicant served his application to have the Silver Lakes
property declared specifically executable.
32] On 10 December 2025 the respondent’s appeal against the order by Chokoe
was upheld. Labuschagne J remarked as follows:
“[16] None of the pleaded grounds of appeal matter. The respondent
erred in bringing the application pertaining to the late filing of a
notice of appeal in the Magistrates Court. It should have been
brough in the High Court as the “court of appeal” referred to in sec
84. On this ground alone the appeal succeeds.
[17] However, the appellant is to blame for not pursuing the inchoate
appeal against the judgment of Magistrate Ngesi. The appellant is
aware that its failure to apply for condonation for late filing is fatal to
the appeal but contends that it can ask for condonation at any time.
This proposition will be tested once a condonation application is
brought. This court is however mindful that the inaction of the
appellant, with an ostensible sense of impunity lies at the core of
the dilemma faced by the respondent.
[18] …
[19] As a mark of disapproval for the appellant’s failure to pursue the
appeal against the judgment of Magistrate Ngesi, the appellant will
not be rewarded with a cost order in his favour in these
proceedings.”
33] On 4 March 2026, a notice of appeal on behalf of the respondent , signed on 16
January 2026 , was uploaded to CaseLines . There is no indication that it was
served on the applicant’s attorneys or issued and served at the High Court . This
notice of appeal was not accompanied by any condonation application by the
respondent for his failure to timeously pursue his appeal.
DECLARATION OF EXECUTABILITY
34] As indicated above, I will deal with the application to have the Silver Lakes
property declared specifically executable. The applicant also moves for an order
to the effect that service of the application upon Maranti Kg omo Attorneys will be
sufficient for purposes of Rule 46A(3)(d).
35] The respondent is opposing the application to have the property declared
specifically executable on the basis that the matter is subject to an appeal;
alleged non-compliance with Rule 46A(5), and failure to join the municipality as a
party to the application.
SERVICE
36] In terms of Rule 46A(3)(d) every notice of application to declare residential
immovable property executable shall be served by the sheriff on the judgment
debtor personally: Provided that the court may order service in any other manner.
37] It appears from the Notice of Motion in t he application to have the Silver Lakes
property declared executable , that it was served o n, and received by , Maranti
Kgomo Attorneys on behalf of the respondent on 24 June 2025. Provision is also
made for service by email to a[…]; l[…]; and m[…].
38] It is clear from all the attachments to the applicant’s founding affidavit that
Maranti Kgomo Attorneys have been acting on behalf of the respondent since at
least 10 May 2024 and are still so acting.
39] It can safely be a ccepted that the application to have the Silver Lakes property
declared executable, came to the attention of the respondent timeously and
properly, because he opposed the application and filed a comprehensive
answering affidavit thereto.
40] I therefore have no hesitation to find that service of the application upon Maranti
Kgomo Attorneys is sufficient for purposes of Rule 46A(3)(d).
NON-JOINDER OF THE MUNICIPALITY
41] The respondent claims that the applicant should have joined the local
municipality, since the municipality is a creditor in respect of rates and taxes.
42] Rule 64A(3)(b) only requires that any party who may be affected by the sale in
execution should be notified of an application to declare residential immovable
property executable and not be joined as a party to the proceedings. This notice
is purely to protect any commercial claims they may have.
43] No evidence was adduced to confirm or even allege that the respondent’ rates
and taxes are in arrears, and the local municipality will in any event, be able to
enforce payment of any outstanding amounts befor e issuing a clearance
certificate.
44] Consequently, I conclude that the applicant’s omission to join the local
municipality does not adversely affect the application.
PENDING APPEAL
45] The procedure of appeal against a judgment delivered in the magistrate’s court is
in principle regulated by two sets of rules: Rule 51 of the Magistrates’ Courts
Rules, and Rule 50 of the Uniform Rules of Court. Rule 51 of the Magistrates’
Court Act regul ates the noting of an appeal and Rule 50 of the Superior Courts
Act regulates the prosecution of an appeal.
46] Rule 51(3) of the Magistrates Court Rules inter alia provides that an appeal may
be noted by the delivery of notice within 20 days after the date of a judgment
appealed against or within 20 days after the registrar or clerk of the court has
supplied a copy of the judgment in writing to the party applying therefor.
47] Rule 50(1) of the Uniform Rules of Court provides that a n appeal to the court
against the decision of a magistrate in a civil matter shall be prosecuted within 60
days after the noting of such appeal, and unless so prosecuted it shall be
deemed to have lapsed.
48] In terms of the latest jurisprudence, “prosecution” is interpreted as applying in
writing to the registrar, on notice to all other parties, for a date of hearing in the
prescribed manner.
49] Rule 50(4) of the Uniform Rules of Court inter alia provides that the appellant
shall, within 40 days after noting the appeal, apply to the registrar in writing and
with notice to all other parties for the assignment of a date for the hearing of the
appeal.
50] Rule 50(7) of the Uniform Rules of Court inter alia provides that the applicant
shall simultaneously with the lodging of the application for a date for the hearing
of the appeal referred to in sub -rule (4) lodge with the registrar two copies of the
record.
51] In the answering affidavit deposed to on behalf of the respondent , which was
uploaded to CaseLines on 6 August 2025, it is inter alia stated that:
“In this case there is an appeal which is pending before the Honourable
Court and the Appl icant has filed (albeit defective) an application on
Notice to have the appeal set aside.
Therefore, the issues relating to the cost order cannot be declared to be
finally determined if the appeal court will also pronounce on the issue of
cost order on appeal and the cost relating to the court aquo when
determining the merits of the appeal.” (sic)
52] It is clear that the reference to the “pending appeal” could only be the notice of
appeal that was filed on 18 July 2024, because the answering affidavit was
deposed to long before the second notice of appeal dated 16 January 2026, was
uploaded to CaseLines on 4 March 2026.
53] That notice of appeal was filed 297 days out of time, without an application for
condonation, has lapsed because it was not prosecuted within 60 days after the
delivery of the notice of appeal , and there was no application for re -instatement
or condonation.
54] This notice of appeal was however found to be irregular and set aside by
Magistrate Chokoe on 19 February 2025, and the judgement of Magistrate
Chokoe was set aside for lack of jurisdiction on appeal by the High Court on 10
December 2025.
55] Even if it may be argued that the appeal process was “interrupted” by the setting
aside of the notice of appeal by Magistrate Chokoe and the setting aside of
Magistrate Chokoe’s judgement by Labuschagne J on 10 December 2025, no
attempts were made after the latter judgement to pursue the appeal.
56] During argument, it was argued on behalf of the respondent that the (“Second”)
notice of appeal dated 16 January 202 6 and uploaded on CaseLines on 6 March
2026, should be accepted as a n ew notice of appeal. However, Mr Maluleka on
behalf of the respondent could not explain why this notice was not served on the
applicant’s attorneys or why no condonation application was launched.
57] Mr Maluleka conceded that the procedural requirements for the noti ng of an
appeal were not complied with but maintained that it should be regarded as a
notice of appeal and that there is therefore a pending appeal against the
judgment of Magistrate Ngesi, handed down on 15 September 2023.
58] Apart from the notice of appeal being the only notice of appeal referred to in the
respondent’s answering affidavit, the second notice of appeal is also completely
non-compliant and cannot be acknowledged as a pending appeal.
59] I therefore find that there is no pending appeal against the judgment of
Magistrate Ngesi.
APPLICATION OF RULE 46A
60] The origins of Rule 46A may be traced to Jaftha v Schoeman & Others; Van
Rooyen v Stolz and Others1 where the Constitutional Court said:
“Section 26 must be seen as making that decisive break from the past. It
emphasises the importance of adequate housing and in particular, security
1 (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004)
of tenure in our new constitutional democracy. The indignity suffered as a
result of evictions from homes, forced removals, and the relocation to land
often wholly inadequate for housing needs has to be replaced with a
system in which the state must strive to provide access to adequate
housing for all and, where that exists, refrain from permitting people to be
removed unless it can be justified.’2
61] It was further held further that where leave to execute against immovable
property is concerned, judicial oversight is constitutionally required so that the
judicial officer can engage in a balancing process and consider all the relevant
circumstances of a case to determine whether there is good cause to order
execution against the immovable property concerned.’3
62] In Gundwana v Steko Development and Others 4 the Constitutional Court
reaffirmed Jaftha and extended its purview to cases where the creditor is
seeking to execute against a property put up as security in the form of a
mortgage bond.5
63] In Petrus Johannes Bestbier and Others v Nedbank Limited ,6 the
Constitutional Court discussed Rule 46A and stated:
“[65] Having dealt with how the Courts have protected the right
enshrined in section 26, and the advent of rule 46A, I will now look closely
at the language used in the rule, as well as its interpretation and
applicability. In the analysis of who qualifies as an affected person, the
applicable provisions of rule 46A should be considered. In Democratic
2 At [29]
3 At [42] – [45],[55]
4 Gundwana v Steko Development and Others 2011(3) SA 608 (CC)
5 At [49]
6 [2024] ZACC 2
Alliance v Speaker of the National Assembly ,7 this Court reiterated the
proposition that—
‘‘context’ does not mean only ‘parts of a legislative provision
which immediately precede and follow the particular
passage under examination’; it ‘includes the entire
enactment in which the word or words in contention appear.’”
Rule 46A(1)
[66] Rule 46A(1) provides that the rule applies whenever an execution
creditor seeks to execute against the residential immovable
property of a judgment debtor. Rule 46A (1) therefore applies
“whenever”, meaning in all instances, where ther e is an execution
against residential immovable property and the execution is at the
instance of an execution creditor. Further, the property against
which execution is sought must be the residential immovable
property of a judgment debtor. Therefore, the phrase, “residential
immovable property of a judgment debtor” can and should be
interpreted to mean immovable residential property “belonging to”
or “owned by” the judgment debtor. At this stage of the enquiry, the
question is whether the immovable prope rty which the judgment
debtor “owns” is “residential immovable property”. Whether this is
the nature of the property depends, in my view, on the physical
characteristics of the property coupled with its actual use.
[67] Therefore, the focus of the text in rule 46A(1) is on the following:
(a) It states the circumstances in which the rule applies. These
are whenever there is an execution at the instance of a
judgment creditor against a judgment debtor; and
7 [2016] ZACC 8: 2016(3) SA 487 (CC); 2016 (5) BCLR 577 (CC) at par.27
(b) It further identifies the type of property to which the rule
applies and stipulates that it is the residential immovable
property of the judgment debtor.
Rule 46A(2)
[68] Rule 46A(2) deals with the factors that a court considering an
application under this rule must take into account. Rule 46A(2)(a)(i) and
(ii) provide that the court must establish whether the immovable property
which the execution creditor intends to execute against is the “primary
residence of the judgment debtor” and that, if this is so, it must consider
alternative means of satisfying the debt, by the judgment debtor, other
than execution against the judgment debtor’s primary residence.
[69] Rule 46A(2)(b) is peremptory. It specifically prohibits a court from
authorising execution against immovable property that is the primary
residence of the judgment debtor, unless it has considered all relevant
factors. After the court has considered all the relevant factors, it can then
determine whether execution against such property is warranted. This
narrowed focus of rule 46A(2) is understandable when one keeps in mind
the purpose of the rule; that is, t o entrench the section 26 rights to
adequate housing. Put differently, if property is the primary residence of
the judgment debtor, rule 46A(2) requires that the court must exercise
caution before it declares it executable.
Rule 46A(3)(b)
[70] Rule 46A(3)(b) requires that every application to declare residential
immovable property executable shall be on notice to the judgment debtor
and “to any other party who may be affected by the sale in execution”,
including the entities referred to in rule 46(5) (a), provided that the court
may order service on any other party it considers necessary.
[71] The language used in rule 46A(3)(b) is peremptory. It states that
the application shall be on notice to the judgment debtor and to any other
party who may b e affected by the sale in execution including the entities
referred to in rule 46(5)(a). It also contains a proviso that grants the court
a discretion to order service on any other party it deems necessary. Rule
46(5)(a) provides that, subject to rule 46 A and any order made by the
court, no immovable property which is subject to any claim preferent to
that of the execution creditor shall be sold in execution unless the
execution creditor has caused notice of the intended sale to be served
upon: preferent creditors; the local authority, if the property is rated; and
the body corporate, if the property is a sectional title unit.
[72] There is good reason why notice should be given to the parties
stipulated in rule 46(5)(a). It is because they may potentially have a claim
against the immovable property. Their specific mention was made
because they have a direct and substantial interes t in a forced sale.
Service upon these entities is as a result of legal requirements, and their
interest in foreclosures has not been disputed.
[73] The entities listed in rule 46(5)(a) also have a common
denominator. None of them is given notice on the basis of a potential
infringement of their section 26 rights. Their interest is purely commercial
and is clearly not the kind of interest that occupied this Court’s mind when
it decided Jaftha and Gundwana. Preferent creditors are entitled to the
proceeds of estate assets in preference over other creditors. The local
authority is entitled to insist that its property rates be paid before the
property is transferred to the prospective buyer and may refuse to issue a
rates clearance certificate. The bo dy corporate may also require that its
levies be paid before the property is transferred. While rule 46A is
applicable to all residential immovable property, its purpose is to protect
the right to adequate housing. It does not extend to the protection ag ainst
the execution of residential property that does not result in the
infringement of this right, except with regard to those entities listed in rule
46(5).
[74] From the above analysis, the following is clear; there are three
categories of immovable property with which the Uniform Rules 46 and
46A deal with in relation to execution. There is “immovable property” in
general, which is dealt with in rule 46. This includes but is not limited to
residential immovable property. Then there is “residential immovable
property”, to which rule 46A applies. This is a subcategory of “immovable
property”. Rule 46A adds additional provisions which apply when one is
dealing with residential immovable property. Finally, there is immovable
property which is the “primary residence of the judgment debtor”. This is a
sub-subcategory of the subcategory “residential immovable property”.
Only some parts of rule 46A apply to this su b-subcategory of “primary
residence” property.
[75] As stated above, whether property can be classified as “residential
immovable property”, is determined by the characteristics and actual use
of the property. It does not matter that the judgment debt or is not herself
occupying the property. It also does not matter that the judgment debtor is
a trust. If a trust owns a residential house, it is “residential immovable
property”, if the beneficiaries reside in it, even though the trust itself as a
legal entity cannot reside in the property. Among the provisions which
apply to all “residential immovable property” is rule 46A(3)(b), which
requires notice to be given to persons who may be “affected” by the sale
and execution. And that is the provision whi ch is the focus of the present
and execution. And that is the provision whi ch is the focus of the present
case. The importance of judicial oversight over all residential immovable
property, and not only primary residential immovable property is that it
would be risky to leave it to the judgment creditor to determine whether
the property is used as primary residence without this question being
ventilated or determined by a court.
[76] Certain parts of rule 46A apply only to residential immovable
property which is the “primary residence” of the judgment debtor. These
provisions are rule 46A(2)(a)(i), 46A(2)(b) and 46A(8)(d). In essence,
these are the provisions which require the court not to order execution
against a primary residence of the judgment debtor unless there is no
other satisfactory means of satisfying the judgment debt.”
And further:
“[81] It must be borne in mind that rule 46A applies not only to
executions against “primary residential immovable property” but to
residential immovable property of a judgment debtor. The factor
pertaining to primary re sidence is just one of the factors a court must
consider. The text is clear that the rule applies whenever an execution
creditor seeks to execute against the residential immovable property of a
judgment debtor. When applying rule 46A(2)(a)(i), one of the factors that
the court must consider is whether the residential immovable property is
used as the primary residence of the judgment debtor.”
64] Considering the provisions of Rule 46A and the principles reiterated in the
Bestbier-matter, it must be decided whether the Silver Lakes property is the
respondent’s “primary residential immovable property”.
65] It is important that although rule 46A is applicable to all residential immovable
property, its purpose is to protect the right to adequate housing and that i t does
not extend to the protection against the execution of residential property that
does not result in the infringement of this right, except with regard to those
entities listed in rule 46(5).
66] The importance hereof is that the provisions of rule 46A(2)(a)(i), 46A(2)(b) and
46A(8)(d), which require the court not to order execution against a primary
residence of the judgment debtor unless there is no other satisfactory means of
satisfying the judgment debt , apply only to residential immovable property which
is the “primary residence” of the judgment debtor.
67] I must therefore establish whether the Silver Lak es property is the primary
residence of the respondent.
68] Despite the respondent’s claim that it is his primary residenc e, it is undisputed
that he has been residing in Canada , since at least 2024 and that the property
has been vacant for some time, most probably since 2020.
69] It is not disputed that the respondent bought the Silver Lakes property in June
2008 for the sum of R 2 350 000.00.
70] The respondent owns two immovable properties, one of which is worth more
than R6 000 000.00 with no outstanding bond debt and he does not appear to be
a person who is in dire n eed of the protection of the right to adequate housing
and security of tenure afforded by Section 26 of the Constitution.
71] In the premises, I find that the Silver Lakes property is not the respondent’s
primary residential immovable property and that rules 46A(2)(a)(i), 46A(2)(b) and
46(8)(d) therefore do not apply in this instance.
72] It was argued on behalf of the respondent that the applicant failed to comply with
the provisions of Rule 46A(5), in that he did not provide the court with a proper
valuation report by a qualified assessor, he failed to provide a municipal rates
statement indicating outstanding debt to the local authority, and d id not provide
an adequate calculation of a reserve price as required by Rule 46A(9).
73] Rule 46A(5) provides as follows:
“(5) Every application shall be supported by the following documents,
where applicable, evidencing—
(a) the market value of the immovable property;
(b) the local authority valuation of the immovable property;
(c) the amounts owing on mortgage bonds registered over the
immovable property;
(d) the amount owing to the local authority as rates and other
dues;
(e) the amounts owing to a body corporate as levies;
(f) and any other factor which may be necessary to enable the
court to give effect to sub-rule (8):
Provided that the court may call for any other document which it
considers necessary.
74] The applicant conceded that he did not comply with all the provisions of rule 46A
and requested this Court, in terms of Rule 46A(8)(c), to condone his failure to
comply with the provisions of Rule 46A(5).
75] Rule 46A(8) inter alia provides that:
“(8) A court considering an application under this rule may—
(a) of its own accord or on the application of any affected party,
order the inclusion in the conditions of sale, of any condition
which it may consider appropriate;
(b) …..
(c) on good cause shown, condone—
(i) failure to provide any document referred to in sub-rule
(5);
(ii) or delivery of an affidavit outside the period
prescribed in sub-rule (6)(d);
(d) ……
76] On behalf of the applicant, it was s ubmitted that the amount owing to the local
authorities could not be determined , but that i t was established from the Silver
Lakes Homeowner’s Association that the respondent’s levies were up to date
and that the Homeowner’s Association has not been requested by the City of
Tshwane to enforce any disconnection of the electricity supply , confirming the
impression that the local authorities’ bill is paid to date.
77] The applicant relies on the Municipal valuation of R6 650 000.00 (done in 2022)
as reflected in the Lexis WinDeed document, obtained on 19 June 202 5,
according whereto, the estimated value of the property is R7 660 000.00
(Expected High); R5 420 000.00 (Estimated value) and R3 840 000.00
(Expected Low) for purposes of a valuation of the Silver Lakes property.
78] The respondent did not dispute the figures presented by the applicant and did
not provide any information in his answering affidavit to support a conclusion that
he is owning any monies on the property or that he is in financial destitute.
79] In this regard, Rule 46A(6)(b) provides that a respondent shall admit or deny the
allegations made by the applicant in the applicant’s founding affidavit; and set out
the reasons for opposing the application and the grounds on which the
application is opposed.
80] For present purposes, I consider the information required by Rule 46A(5) which
has been placed before me to be sufficient to reach a conclusion on the
executability of the property and grant condonation for the applicant’s failure to
place all the documents referred to in Rule 46A(5) before me.
81] The respondent also alleged that the applicant did not provide an adequate
calculation of a reserve price as required by Rule 46A(9).
82] Rule 46A(9)(a) provides that in an application under this rule, or upon
submissions made by a respondent, the court must consider whether a reserve
price is to be set and subrule (b) prescribes the aspects which the court shall take
into account in deciding whether to set a reserve price and the amount at which
the reserve is to be set.
83] I considered the applicant’s claim that the respondent was indebted to him in the
amount of R1 348 619.12 on 23 June 2025 and, accepting that all the cost orders
have not been taxed yet, and that the estimated R50 000.00 in respect of the
appeal matter before Magistrate Chokoe, will be deducted, I am satisfied that the
respondent is indebted to the applicant in the amount of at the least, more than
one Million Rand.
84] I consider the information required by Rule 46A(9)( b), which has been placed
before me to be sufficient to consider whether a reserve price is to be set and I
am of the view that a reserve price of R5,4 million, ought to be set in order to
safeguard the Respondent’s interests in the immovable property.
RESCISSION APPLICATION
85] I will now deal with the respondent ’s application for the rescission of the order
granted by Mokose, J on 25 February 2025, in so far as it may be necessary.
86] As I have indicated before, if t he relief sought by the applicant is granted,
paragraph 1 of Mokose J’s order would effectively be superseded, and the
substance of paragraph 2 thereof will be incorporated. What remains for
determination in relation to that order is therefore confined to the issue of costs.
87] The essence of Mokose J’s order , which the respondent now prays to be
rescinded was to the effect that the respondent was prohibited from alienating
and/or further encumbering the Silver Lakes Property and that the Registrar must
register a caveat against the property. It is important to note that the respondent
withdrew his opposition to the granting of this relief at the time.
88] If I grant the respondent’s application to declare the property executable, the
rescission of Mokose J’s order that the respondent may not alienate the property
and that the Registrar must register a caveat against the property , will serve no
purpose and effectively becomes moot.
89] It is trite that a court will not determine issues that are moot or academic. Where
a judgment will have no practical effect or result, the court will, as a general rule,
decline to entertain the matter. 8
90] In so far as the cost order granted by Mokose J may be relevant, I will deal with
the rescission application in general.
91] The respo ndent submits that the order should be set aside because i t was
granted in absentia of the of the Applicant ; the Respondent has circumvented
the Rules relating to the amendment of a pleading and the Order was
erroneously granted in the absence of the Applicant.
92] Rule 42(1)(a) provides that the court may, in addition to any other powers it may
have mero motu or upon the application of any party affected, rescind or vary an
8 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (2000 (2) SA 1 (CC)),2000(1) BCLR
39 (CC)
order or judgment erroneously sought or erroneously granted in the absence of
any party affected thereby.
93] The enquir y under Rule 42 (1)(a) is confined to whether the order was
erroneously granted in the absence of a party, in the sense that there existed a
procedural or legal impediment to the granting of the order at the time — not
whether the judgment was correct on th e merits. In Lodhi 2 Properties
Investments CC v Bondev Developments (Pty) Ltd,9 it was held:
“[27] Similarly, in a case where a plaintiff is procedurally entitled to
judgment in the absence of the defendant the judgment if granted cannot
be said to have been granted erroneously in the light of a subsequently
disclosed defence. A court which grants a judgment by default like the
judgments we are presently concerned with, does not grant the judgment
on the basis that the defendant does not have a defence: it grants the
judgment on the basis that the defendant has been notified of the plaintiff’s
claim as required by the rules, that the defendant, not having given notice
of an intention to defend, is not defending the matter and that the plaintiff
is in terms of the rules entitled to the order sought. The existence or non -
existence of a defence on the m erits is an irrelevant consideration and, if
subsequently disclosed, cannot transform a validly obtained judgment into
an erroneous judgment.”
94] The errors relied upon by the Respondent are that:
1. The applicant sought the relief without complying wit h Rule 28 of the
Uniform Rules, and
2. The Court granted the Order whilst the Responden t (applicant in casu)
has not complied with the set down period as stated in the Notice of
9 [2007] SCA 85 (RSA), (1 June 2007) at para 27
Motion and failed to comply with Rule 28(2) of the Uniform Rules which
prescribes the procedure to be followed in the amendment of pleading.
3. The 1 st Respondent failed to notify the Applicant that a new court
hearing date for the matter had been obtained so to give the Applicant,
who was in fact the 1 st Respondent in the main action ample time to
prepare for his opposition.
AMENDMENTS
95] Rule 28 prescribes the procedure to be followed in the amendment of a pleading
and Rule 28(1) provides that any party desiring to amend a pleading or document
filed in connection with any proceedings, shall notify all other parties of his
intention to amend and shall furnish particulars of the amendment.
96] The rule draws a distinction between applications to amend before the hearing
(sub-rule (1)) and those during the hearing but before judgment (sub-rule (10)).
97] In this regard, Rule 28(10) provides that the court may, notwithstanding anything
to the contrary in this rule, at any stage before judgment grant leave to amend
any pleading or document on such other terms as to costs or other matters as it
deems fit.
98] I am aware thereof that the applicant, in his notice of intention to amend stated
that the respondent has 10 days to object against the amendment and that he
probably intended to effect the amendment in terms of under subrules (1) to (9)
but I am of the view that the Court retains a wide discretion under Rule 28(10) to
grant leave to amend at any stage before judgment, notwithstanding non -
compliance with the preceding subrules, provided that such amendment is bona
fide and does not cause prejudice that cannot be cured by an appropriate costs
order or postponement.
99] Rule 28(10) gives the Court a wide, residual discretion:
“The court may, notwithstanding anything to the contrary in this rule, at any
stage before judgment grant leave to amend any pleading or document…”
100] In my view, t he phrase “notwithstanding anything to the contrary in this rule”
means that t he Court’s power is not excluded merely because the Rule 28(1)
procedure was invoked or imperfectly followed. The Court can regularise,
condone, or permit an amendment even if the procedural route under subrules
(1)–(9) has not been strictly complied with.
101] The alleged irregularity does not constitute the kind of error contemplated in Rule
42(1)(a), namely an error which, had the Court been aware of it at the time,
would have precluded the granting of the order.10
102] It cannot be said that the Court was not aware of the initial notice of amendment
which granted the respondent a period of 10 days , at the time of granting the
amendment.
103] In the circumstances, I am satisfied that the amendment was lawfully granted at
the time. The failure to effect the amendment strictly in accordance with subrules
(1) to (9) does not constitute an error as contemplated in Rule 42(1)(a).
104] The respondent’s remedy, if any, laid in an appeal against the granting of the
judgment or order, and not in a rescission application as presently pursued.
FAILURE TO COMPLY WITH SET DOWN PERIOD IN NOTICE OF MOTION
10Nyingwa v Moolman NO 1993 (2) SA 508 (Tk) at 510D–G and Colyn v Tiger Food Industries Ltd 2003
(6) SA 1 (SCA) para 6
105] Save to remark that the period of 10 days mentioned in the applicant’s notice of
intention to amend did not change or affect the return date , I have already dealt
with the purported “error” relating to the 10-day period.
106] The respondent in any event withdrew his opposition to the granting of the
essence of the relief and only filed an objection to the proposed amendment and
not to the application as a whole.
NEW COURT HEARING DATE
107] The Respondent further submits that the order was erroneously granted because
the applicant failed to notify him that a new court hearing date for the matter had
been obtained.
108] The deponent to the founding affidavit, Ms Maranti Yvonne Kgomo , puts it as
follows:
“It come as a shock to me that the 1 st Respondent has through
misrepresentation and against the backdrop of return date of 27 February
2025 as per a rule nisi ordered on 15 October 2024 and same was filed by
the 1 st Respondent with the Applicant on 16 October 2024, misled the
Honourable Court to obtain a judgement order in the absence of the
Applicant and/or his Legal Counsel, even with the knowledge that the
matter stands to be opposed.”
109] Having regard to the papers before me, these allegations are far from correct.
110] In the answering affidavit, deposed to by Mr Daniel Jakobus Basson, he explains
that the court initially granted the interim order with return date 27 February 2025
on an unopposed basis, but that t he date of 27 February 2025 was erroneously
allocated as a return date and the Judge, who granted the order on 14 October
2024, in December 2024, amended the return date to 25 February 2025.
111] He further states that the notice of set down indicating that the return date had
been amended to 25 February 2025 was served on the applicant on 10
December 2024 and on the same date the amended court order indicating the
new return date of 25 February 2025 was served on the applicant's attorneys. He
further caused an email with the amended court order to be sent to the available
email addresses of the applicant personally.
112] On 24 February 2025, the Registrar for Mokose J, the Judge hearing the
application, sent out an em ail with the link for the matter to be heard virtually.
This email was also sent to the attorney Maranti Yvonne Kgomo as can be seen
from the email list.
113] These submissions are supported by the exhibits attached to his affidavit.
1. Annexure “E” - Court order of 14 October 2024 indicating return date of 25
February 2025 – Receipt acknowledged by Maranti Kgomo attorneys on 10
December 2024.
2. Annexure “F” – Notice of set down of the return date on 25 February 2025 –
Receipt acknowledged by Maranti Kgomo attorneys on 10 December 2024.
3. Annexure “H” - Email with the link for the matter to be heard virtually sent out
by the Registrar of the Judge hearing the application to the attorney Maranti
Yvonne Kgomo on 24 February 2025.
114] In the premises it is evident that the applicant did not “fail to notify the respondent
that a new court hearing date for the matter had been obtained”. On the contrary,
it is evident that the respondent was well aware of the “new” date.
115] I therefore find that there was no irregularity or “error” re lating to the “new court
date” as alleged by the respondent.
116] In the premises, I find that the respondent has not made out a case for the
rescission of the Order granted by Mokose, J on 25 February 2025, and that the
application must be dismissed.
COSTS
117] I can see no reason why costs should not follow the event and I am prepared to
award costs, including the cost of two counsel , where so employed, against the
respondent on Scale B.
ORDER:
118] In the premises, I make the following order:
1. It is declared that service of this application on the respondent’ s attorneys
Maranti Kgomo Attorneys, and by email to:
a[…];
l[…]; and
m[…];
is deemed to be proper service in terms of Rule 46A(3)(d).
2. It is declared that the respondent’s immovable property described hereunder
is subject to attachment and is declared to be specifically executable in
satisfaction of all judgments and costs orders granted in favour of the
applicant against the respondent, whether in the High Court (in both this
Division and th e Mpumalanga Division) or the Magistrates Court for the
Magisterial District of Tshwane Central:
Property Type: Freehold Erf Number: 9[…]
Portion: Willow Acres Ext 3
Township: Willow Acres
Municipality: Tshwane
Province: Gauteng
Address: Erf 9[…], Willow Acres Ext 3
(also known as 4 […] G[…] F[…] Street, Silver Lakes Golf Estate, Willow
Acres, Pretoria)
Title Deed: T[…]
3. The reserve price is determined at R5,400,000.00, (Five million Four Hundred
Thousand Rand).
4. The non -provision of all the documents referred to in Rule 46A(5) is
condoned;
5. The respondent is ordered to pay the costs of the application including the
cost of two counsel, where so employed, on Scale B;
6. The Rescission application is dismissed with costs , including the cost of two
counsel, where so employed, on Scale B.
________________________________
ACTING JUDGE JF BARNARDT
JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
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. The date for hand-down is deemed to be 17 April 2026.
APPEARANCES
For the applicant: TP Krüger SC
C D’Alton
Instructed by : Bares & Basson Attorneys
For the respondents: MPT Maluleke
Instructed by: Maranti Kgomo Attorneys
Date of hearing: 9 March 2026
Date of Judgement: 17 April 2026