SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, (MIDDELBURG LOCAL SEAT)
In the applications between:
CASE NUMBER: 1091/2020
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED YES/NO
DATE 11 May 2026
SIGNATURE
THE STANDARD BANK OF SOUTH AFRICA LIMITED APPLICANT
(Registration Number: 1962/000738/06)
versus
OMEGA GUTU FIRST RESPONDENT
(Identity Number: 6[...])
MARIA AMELIA GUTU SECOND RESPONDENT
(Identity Number: 6[...])
AND
CASE NUMBER: 6230/2024
FIRSTRAND BANK LIMITED APPLICANT
2
(Registration Number: 1929/001225/03)
versus
SIBULELO MLILELWA FIRST RESPONDENT
(Identity Number: 8[...])
GOVAN MBEKI MUNICIPALITY SECOND RESPONDENT
AND
CASE NUMBER: 1492/2017
NQABA FINANCE 1 (RF) LTD APPLICANT
(Registration Number: 2005/04005/07)
versus
AARON KENNETH MTHOMBENI FIRST RESPONDENT
(Identity Number: 8[...])
IN HIS CAPACITY AS DULY APPOINTED EXECUTOR
IN THE ESTATE OF THE LATE
KOPPIE JAPHTA MTHOMBENI
(Identity Number: 6[...])
EMALAHLENI LOCAL MUNICIPALITY SECOND RESPONDENT
______________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
INTRODUCTION:
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[1] This Judgment incorporates three Judgments for applications set down on
the Unopposed Motion Court Roll of 17 April 2026. All three applications
sought execution against the residential propert ies of the Respondent s
under the auspices of Rule 46A of the Uniform Rules of Court.
[2] All three applications have been considerably delayed for different reasons,
and all remain unopposed.
[3] In evaluating whether the Applicant has sufficiently discharged its burden in
each of the respective matters, the Court scrutinised the evidence the
Applicant advanced in its attempts.
[4] Applications seeking executions against residential premises under the
auspices of Rule 46A of the Uniform Rules of Court are a common sight on
each and every unopposed Motion Court Roll in every division across the
country.
[5] Courts and Presiding Judges are generally hastily informed by Counsel
appearing on behalf of the Applicant that the papers are in order, reference
is briefly made to one or two figures derived from the Applicant’s papers, and
consequently Counsel appearing seeks relief in terms of a generally generic
Draft Order in which Default Judgment is granted and a reserve price in
respect of the sale in execution of the property is set at an amount so fixed
by the Court.
[6] This Judgment deals with the case -specific deficiencies in the matters
presented to the Court under which heading this Judgment is written, but it
also serves as a stark reminder to practitioners and litigating parties that
generic lip service and non -compliant papers and supporting documentation
are not an acceptable measure of proving one’s case.
[7] It is crucially important for the Applicant to present, thoroughly, ethically, and
compliantly, their necessary information to the Court when applications
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under the auspices of Rule 46A are made in order for the Court to be placed
in a position to make an Order for justice to be done between the respective
parties.
BACKGROUND:
[8] In order to ultimately evaluate to what degree the Court will hold a litigant to
strict compliance and a technical scrutiny of their papers, the Court is bound
to evaluate why Rule 46A of the Uniform Rules of Court was enacted.
[9] I can do no better than Fisher J , who stated in the matter of SB Guarantee
Company v De Sousa,[1] that:
“[5] Mercifully, in this age of constitutional composure, it has been
recognised that certain considerations of fairness and justice are
inalienable and should be weighed as part of the process of judicial
execution for the common and commercial good and in the interests of
justice.
[6] Moseneke DCJ in Nkata[2] encapsulated the position thus:
“The [National Credit] Act seeks to infuse values of fairness, good faith,
reasonableness and equality in the manner actors in the credit
market relate. Unlike in the past, the sheer raw financial power
difference between the credit giver and its much -needed but
weaker counterpart, the credit consumer, will not always rule the
roost. Courts are urged to strike a balance between their
respective rights and responsibilities. Yes, debtors must diligently
and honestly meet their undertakings towards their creditors. If
they do not, the credit market will not be sustainable. But the
human condition suggests that it is not always possible —
particularly in credit arrangements that run over many years or
decades, as mortgage bonds over homes do. Credit givers serve
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a beneficial and indispensable role in advancing the economy and
sometimes social good. They too have not only rights but also
responsibilities. They must act within the constraints of the
statutory arrangements. That is particularly so when a credit
consumer honestly runs into financial distress that precipitates
repayment defaults. The resolution of the resultant dispute must
bear the hallmarks of equity, good faith, reasonableness, and
equality. No doubt, credit givers ought to be astute to recognise
the imbalance in negotiating power between themselves and
consumers. They ought to realise that at play in the dispute is not
only the profit motive, but also the civilised values of our
Constitution.”
[7] It is in this spirit and with these constitutional imperatives and norms
in mind that Rule 46A was promulgated in 2017.”
[10] This Court can only add to the sentiments displayed by Fisher J that, in the
evaluation of th ese types of matters, general principles of logic ought to be
applied. If, on the face value of a document, the document is not suitable for
its intended purpose, and no reasonable explanation is offered for such, no
justifiable reason could exist for such a document to be accepted, whether it
be an affidavit, a report, or any other substantiating document.
[11] Although a Court no doubt needs to be mindful not to enter the arena, and to
argue in opposition of an application against a financial institution , a
distinction is to be drawn between the right of a litigant, having proven his
claim to an order on the terms as proven by him, and the discretion afforded
to the Court to determine in what way and on which terms ultimate execution
is to be made.
[12] Whilst it will not be for the Court to interfere with the contractual terms
entered into between the Applicant and the Respondent , in terms of the
information the Court requires to come to a just conclusion on how such an
information the Court requires to come to a just conclusion on how such an
obtained Judgment is to be executed necessitates that the Court to seriously
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engage with the evidence presented to it, in order to ultimately exercise its
discretion.
[13] If a Court is not satisfied that the evidence presented to it is of such a nature
that it can be accepted, the Court would be left to speculate or guess in what
way justice is ultimately to be done between litigants. This is a position
which no Court will entertain.
[14] The Court, in the matter of ABSA Bank Ltd v Mokebe and Related
Cases[3] set out the requirements an Applicant needed to adhere to in order
to place the Court in a position to competently evaluate matters under the
auspices of Rule 46A of the Uniform Rules of Court. Litigants were, in this
matter, given guidance on what was required from them to ultimately obtain
the relief they sought.
[15] The essence of th e current Judgment deals with the continued non -
compliance with the requirements specifically pertaining to valuation reports
and valuation affidavits, the necessity and particularity of which is , in most
instances, either completely disregarded by Applicants, or alternatively,
attended to in such a lackadaisical manner that the Court cannot accept the
veracity of such documents for their intended purpose.
[16] Whilst the Court accepts that several other factors are to be evaluated for
the Court to ultimately come to a just conclusion on a fair reserve price, this
Judgment is confined to the difficulties encountered in respect of valuations
and valuators’ affidavits.
[17] The reasons for a sworn evaluation and an evaluation affidavit are logical.
The Court cannot attend each and every premises to ascertain its condition
and value. The Court relies upon experts who, through their qualifications
and experience, need to evaluate a property, evaluate its condition, and
each and every aspect thereof in order to indicate to the Court what the fair
market value of the property ought to be. Absent this crucial portion of
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evidence, the Court would in most instances be left to speculate what an
appropriate reserve price at a sale in execution would be.
[18] If a proper, unbiased, and thorough valuation of a property is done, a Court
can be satisfied and accept that, if it orders execution at a reserve price in
line with what is stated in the valuator’s report, the Respondent would not be
unjustly prejudiced when their property is ultimately sold, and it would
safeguard against the sale in execution of property at an unjustified reduced
rate, which would not be in any way and for obvious reasons be in the
interest of justice.
EVALUATIONS, REPORTS, AND AFFIDAVITS:
A. PERSONAL ATTENDANCE:
[19] After the Judgement of Fisher J in SB Guarantee Company v De Sousa,
supra, it would have been expected that the manner in which evaluations
were conducted for the purpose of Rule 46A would have significantly
improved and that practitioners would have been mindful not to fall foul of
the complained of issues as raised in the stated Judgment.
[20] Unfortunately, rather than the position improving, it seems as if it is
worsening, if regard is had to the manner in which evaluations are
conducted.
[21] Insofar as it is necessary, it cannot be overstated how important it would be,
as a very basic requirement, that the person conducting the evaluation of the
property personally attend to such evaluation. The person attending the
evaluation would be the only person, or, alternatively, the person best
equipped to truthfully advance to Court the true nature of the evaluation that
has been conducted in respect of the property. If personal attendance was
not possible, exceptional circumstances need to be given as to why the
Court should still allow such evidence from such a person.
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[22] Courts are often confronted with evaluation reports indicating that the
valuation was a so -called “drive-by” evaluation or a “digital evaluation”. In
other instances, the reports make the vague statement that access to the
property could not be obtained. The reports are generally silent on the
number of attempts to gain access to the property and the specific steps
taken to do so . To make matters worse for the valuators , upon scrutiny of
their reports, the reports, absent the fine print stating that no access to the
property was possible, give the impression that the property was valued from
corner to corner.
[23] The aforesaid is so because most of the valuation reports address the
number of rooms, bathrooms, and the material used, for instance, in respect
of flooring, cupboards, and doors. When a valuator inserts, with great
particularity, details on aspects such as the aforesaid, it provides a certain
perception that those elements were indeed valued by the valuator and the
Court can accept them as true. In actual fact, those valuations are
speculative in nature and do not aid the Court in coming to an ultimate
decision.
[24] If it is not seriously evident from the report or affidavit by the valuator which
attempts have been made to gain access to the property, and in what way
the valuator was prohibited from gaining such access, I find no reason not to
accept that no serious attempt was made by such a valuator and that the
Court ought not to accept the valuation as anything else than speculation on
a possible value for the property.
[25] On the contrary, if the Applicant or the valuator is able to indicate to the
Court that reasonable steps were taken to gain access to the premises, and
for instance, the valuator was prohibited access through malicious actions of
the Respondent, the position might be significantly different as the Court
would then be faced with the best available evidence to come to an ultimate
would then be faced with the best available evidence to come to an ultimate
conclusion. In several instances, however, the Court is faced with a Sheriff’s
9
Return of Service where the occupants of a premises seemingly without any
difficulty opened the door and let the Sheriff into the property for the service
of process, but the valuators are allowed to make bold and unsubstantiated
averments that no access to the premises was possible. These submissions
ought to be scrutinised by the Court. In most instances , matters under the
aforesaid auspices get brought to Court over a considerable amount of time,
and the Court cannot accept that , in litigation spanning, in some instances,
several years, one single attempt by a valuator to attend to the property
would be sufficient.
B. AFFIDAVITS
[26] The next question is how the evidence of the valuator is to be presented to
the Court. In ABSA Bank Ltd v Mokebe supra, it became settled that the
evidence of the valuator ought to be presented to the Court by way of
affidavit.
[27] The reason why the evidence of the experts is to be received under oath is
well-reasoned. If nothing else, financial institutions and valuators handle an
abundance of such valuations, and it is necessary to safeguard against
potential abuse.
[28] At the very least, by requiring the valuator to make an affidavit, the Court
amplifies the evidence from a mere document by requiring the valuator to
appear before a suitable Commissioner of Oaths to confirm not only the
existence of the valuator, but to allow the valuator the opportunity to swear,
under oath, to the truthfulness and the veracity of the statement they are
making to the degree that, should the valuator be found to perjure himself it
could lead to possible criminal prosecution.
[29] It further allows the opportunity for a valuator to, after the completion of a
valuation, consider the correctness and truthfulness of their submissions,
and to ensure that the facts to which the valuator ultimately swears are in all
aspects true and correct.
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[30] Some valuators’ reports have , at the end of it, certificates where the report
itself can be commissioned. It follows that, under those circumstances, the
report would be compiled, signed, and commissioned upon completion.
In other instances, a report is compiled which is then incorporated into a
valuation affidavit deposed to by the valuator and ultimately handed in to the
Court.
[31] The Court finds no difficulty in accepting that, once a compliant valuator’s
report and a complaint valuator’s affidavit are received , the information
therein stated would significantly aid the Court in ultimately coming to a just
decision in respect of the Order to be made. A well-reasoned and properly
commissioned affidavit and report would elevate those documents from
those obtained from a proverbial “hired gun” for the Applicants to a crucial
aid utilised by the Court to ensure justice is ultimately done.
[32] When it becomes apparent however that, there has been non -compliance
with either the manner in which the valuation of the property occurred or with
the manner in which the affidavit or report has been commissioned, it alerts
the Court to evaluate whether a valuation indeed occurred or whether the
Court is rather to accept that a litigant has attempted to circumvent their
obligations to gain some sort of strategic advantage over their opponent.
C. COMMISSIONING OF AFFIDAVIT:
[33] The commissioning of affidavits forms one of the cornerstone s of motion
proceedings. It is in the process of the commissioning of a document by a
Commissioner of Oaths, in which a document is elevated from the mere
status of a document to that of an affidavit.
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[34] The manner in which a document is to be signed and commissioned by a
Commissioner of Oaths is settled both in terms of l egal precedent and the
Justice of the Peace and Commissioners of Oaths Act, 16 of 1963.
[35] If a document purporting to be an affidavit is not properly signed and
commissioned, it can, at least prima facie , be accepted as a fundamental
procedural defect. Any deficiency in the manner in which a document is
commissioned at the very least necessitates a reasonable explanation in
order for the Court to accept the same. Under every circumstance where a
party seeks non -compliance to be condoned, such a party seeks an
indulgence from a Court, and under those circumstances, the Court would
have a discretion whether or not to grant such an indulgence.
[36] As in most instances, when condonation is sought, proper reasons need to
be provided for the non -compliance, and the Court, with the interest of
justice in mind, will then evaluate whether or not such condonation ought to
be granted.
[37] At the very least, what could be expected of a litigant, if there is any sort of
non-compliance, is a disclosure and an acknowledgement of such non -
compliance, and thereafter an explanation for such non-compliance.
[38] Where a proper explanation is advanced for not complying strictly with the
manner in which affidavits are to be commissioned, which explanation is
reasonable under the circumstances, Courts will generally allow the
affidavits into evidence if substantial compliance with the relevant
requirements has at least been met. Where substantial compliance has not
been met, or no proper explanation for strict compliance has not been given,
a Court is faced with no evidentiary basis upon which to exercise its powers,
and can justifiably disregard the affidavit as pro non scripto under
appropriate circumstances.[4]
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[39] Having regard to the manner in which the world is changing and becoming
digitalised, the commissioning of affidavits has , similarly, under appropriate
circumstances and conditions, been accepted when a party did not appear in
person before a Commissioner, and such commissioning occurred via a
virtual platform.[5]
[40] At the very least, what could be expected of a deponent and a commissioner
wishing to commission a document absent physical presence would be a
disclosure of such to the Court to indicate exactly how the document was
commissioned and why a deviation from the norm was necessitated.
[41] Similarly, a deponent may elect not to have their gender specified in the
commissioning certificate for personal reasons. If a deponent , however, in
the body of the affidavit elects to identify himself or herself or themselves,
then surely a commissioner of oaths cannot be precluded from correctly
completing the commissioning certificate.
[42] Unfortunately, it happens that documents are presented to the Court,
purporting to be affidavits, where substantial compliance has not been met,
and only after the deficiency in the commissioning of the documents has
been highlighted to a litigant appearing , is an attempt made to rectify or
explain the same.
[43] There ought to be a distinction between documents that are not properly
commissioned, resulting from facts that necessitated the document to be
signed in a specific fashion, given the facts of the matter, and documents
where there was simply non -compliance with the manner in which the
document ought to have been commissioned because parties were
negligent.
[44] When deponents or commissioners of oath attend to a document and want
to elevate such a document to the status of an affidavit, a certain amount of
diligence can be expected to ensure compliance with the manner in which
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the document ought to be commissioned. Absent such, a Court would be
justified to accept that the Deponent or the Commissioner or both was either
negligent or alternatively knew of their non -compliance and attempted to
proceed with the affidavit in the hopes that the Court would not pick up on
the deficiencies in the affidavit. In both scenarios , a Court would be slow to
come to the aid of a litigant acting in such a manner.
CASE SPECIFIC DEFICIENCIES:
[45] Hereinafter, I set out briefly the manner in which each Applicant tried to
comply with the requirements for the filing of a Valuator's Affidavit and in
what way they were non-compliant.
STANDARD BANK v GUTU CASE NUMBER: 1091/2020
[46] The Applicant relies on a valuation attempted by DDP Valuers.
[47] The Valuation Report is drafted in the most general and generic terms.
[48] The report is drawn up under circumstances in which a blanket statement is
made that no access to the property was possible.
[49] The report does not indicate what steps were taken to gain access to the
property or why access was ultimately not granted. No explanation was
given why, since the first attempted attendance at the property, for a period
of three years, access to the property could not be gained.
[50] The associated valuator in the report is identified as JN de Vos, and the
professional valuator is identified as HJ Prinsloo. Both individuals seem to
sign the initial report on 16 October 2023, although the signatures seem to
be electronically generated and affixed. The original report and affidavit
were not presented to Court. The report, seemingly serving as an affidavit,
14
is then purportedly signed by a Commissioner of Oaths whose designation
and name is not legible on the document presented to Court, but
perplexingly on the 19 th of October 2023, indicating that it was signed some
days after the Deponent signed the document and evidently the signatories
could not have appeared before the Deponent on the day on which it is
alleged that same is signed.
[51] The commissioning certificate also holds no particularity , as on each
junction, the genders of the respective Deponents are not specified , and it is
continually reflected as he/she or I/we.
[52] No amount of weight can be placed on this document.
[53] Upon being directed by the Court to do so, an updated Valuator’s Affidavit
was obtained. The updated affidavit was seemingly signed on the 30 th of
January 2026. The affidavit was deposed to by JN de Vos again, and again
in the commissioning certificate, no gender is specified, and the respective
portion reflects merely he/she.
[54] The report annexed to the affidavit is exactly the report previously annexed.
Neither the Deponent nor the Applicants explain how, over the period in
question, being approximately 3 years, no single amendment to any amount
on the report could be justified.
[55] Again, the report indicates that it was signed by
De Vos and Prinsloo, De Vos signing on the 12 th of August 2025, and
Prinsloo signing on the 15 th of August 2025. The report, again purporting to
be an affidavit, is then commissioned by one Dewald Carel Nel of 4[...] F[...]
Street, Nelspruit, who indicated that the document was signed before him on
15 August 2025. I pause to state that it would be an impossibility for this
averment to be truthful under circumstances where De Vos alleges that he
signed the document on the 12 th of August, some three days prior, and as
such, the Commissioner of Oaths’s statement is false. Again, the signatures
15
are appended to the report in electronic format, and no particularity
regarding gender is specified.
[56] Annexed to the update Valuator’s Supplementary Affidavit is a Confirmatory
Affidavit by Prinsloo. The affidavit is again signed before one Dewald Carel
Nel at 4[...] F[...] Street, Nelspruit, again without any particularity to the
gender of the Deponent, and again seemingly via electronic signature.
Peculiarly, the affidavit pertaining to the years of experience of the Deponent
is left blank, an indication that the Deponent or the drafter thereof merely
utilised a pro -forma document without any particularity , which was not
properly completed.
[57] Prior to the hearing of the matter, the Applicants presented a further updated
report. The report again resembles the previous reports filed and exhibits
the same deficiencies. De Vos signed the document on the 3 rd of February
2026, Prinsloo signed the document on the 5 th of February 2026, both
seemingly electronically, and the document was then commissioned by one
Marcelle Oosthuizen again from 4[...] F[...] Street, Nelspruit on the
5th of February 2026, several days after being signed by De Vos, again
without any particularity to gender.
[58] The further report is again accompanied by an affidavit of Prinsloo,
seemingly signed on 25 February 2026. The affidavit is again signed by
Dewald Carel Nel at 4[...] F[...] Street, Nelspruit, and again appears to have
been signed electronically, but De Vos's gender was selected as male.
[59] A further Valuator’s Affidavit by De Vos was also obtained, seemingly signed
on 25 February 2026 at Secunda, again without particularity to gender. The
difficulty with this purported affidavit is the fact that De Vos in his affidavit ,
states that he aligns himself with the opinions of his report dated
5 February 2026, yet the report annexed to his affidavit was already signed
by him on the 3 rd of February 2026, several days prior to his statements in
16
the affidavit that he attended the premises , which attendance he states only
occurred on 5 February 2026.
[60] Of greater concern is that, whether by error or design, a further Valuator’s
Confirmatory Affidavit is annexed to the exact same affidavit of De Vos,
again by Prinsloo. Again , the years of experience are left vacant, but
curiously, the affidavit is signed on the 25 th of February 2026 at Secunda.
The aforesaid is to be evaluated under circumstances where the exact same
Deponent, allegedly on the exact same date, made an affidavit also bound
into the record, in a different town, some several hundred kilometres away.
[61] In total, the Applicant relies on eight different affidavits in the matter. Not a
single one of the affidavits relied on is compliant to the degree that the Court
can accept same.
[62] For the period ranging from 16 October 2023 until 25 February 2026, every
report, although identified as a supplementary report, remains exactly the
same, without any amendment to the value of the property.
[63] During the appearance when the matter was ultimately heard, Counsel for
the Applicant wished to bring it to the Court’s attention that the matter ought
now to be finalised since it has unnecessarily been delayed.
[64] The sentiment of Counsel appearing for the Applicant is ironic, given that the
matter has been non-compliant since inception due to the sole actions of the
Applicant. The documents presented by the Applicant have been presented
in such a negligent manner that it would be an impossibility for justice to be
done if the Court is left to speculate on the true value of the property,
specifically under circumstances where it is evident the Applicant has made
no real effort in respect of the valuation thereof.
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[65] The manner in which the purported affidavits are continually signed and
attended to should be the subject of much criticism. It is evident that the
affidavits were attended to in such a manner that the Deponents either did
not appear before a Commissioner of Oaths or some other scheme or
arrangement pertaining to the bulk signature of affidavits exists whereby the
respective Deponents or the Applicant present s a bulk of affidavits to a firm
for the same to be commissioned in a manner that is not proper.
[66] As there is no proper valuation nor a valid valuation affidavit, it is impossible
for the Court to come to a just conclusion on what the value of the property
in question ought to be regarded as.
FIRSTRAND BANK LIMITED CASE NUMBER: 6230/2024
[67] The Applicant in this matter relies on a Valuator’s Affidavit by one Izak Buys.
[68] The initial affidavit by Buys was unsigned when it formed part of the Default
Judgment Application. When a Supplementary Affidavit was filed, an
affidavit by Buys was presented.
[69] The signature to the affidavit is again evidently an electronic signature , and
the affidavit indicates to have been signed in Standerton by the Deponent ,
yet curiously, the affidavit is commissioned by one Samantha Germishuyzen
at
No 2[...] D[...] Avenue, Kempton Park. No explanation is provided for this
discrepancy.
[70] If regard is had to the report itself, the report indicates the purchase date of
the property to be 23 September 2024. This seems rather to be the date on
which the initial evaluation by Buys was done , rather than the purchase date
of the property, if one has regard to the facts of the matter. The report again
indicated that no internal access to the property was provided without any
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particularity as to why, for a period of two years since the report was
obtained, no access was possible, nor was it indicated what steps were
taken in order to gain access.
[71] An extensive report is filed on other properties in the vicinity , but no
meaningful engagement with the property in question is made.
[72] Prior to the hearing of the matter, a further affidavit of one Jacobus Coetzee
Venter was provided, which was seemingly deposed to on 8 April 2026. The
valuation purports to be a desktop evaluation, and the difficulty with this
document is that it again seems to be a comparison with other buildings in
the area without meaningfully engaging with the true state of the current
property, whilst surrounding properties might be indicative of whether the
area is one conducive to higher or lower property values, it is highly possible
that ‘n high value property may present itself in a lower value area or that a
lower value property might present itself in a higher value area. The Court
cannot be expected to place a value on a property solely based on other
properties in the area. It is not the other properties in the area that are to be
sold, it is this specific property.
[73] Insofar as affidavits have been filed by Buys, the same are not compliant
and are rejected. Insofar as any other documentation is presented, they do
not aid the Court to ultimately come to a just conclusion on the true value of
the property.
NQABA FINANCE 1 (RF) LTD CASE NUMBER: 1492/2017
[74] In this matter , the Applicants also relied on a valuation by DDP Valuators,
and valuations again by JN De Vos.
[75] The attempted affidavit purports to have been signed on the 10 th of
November 2025, under circumstances where De Vos indicates that he
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signed the affidavit at Kriel , and the Commissioner of Oaths purports to sign
the affidavit in Secunda. No explanation for this is offered.
[76] Curiously, the commissioning certificate indicates that De Vos is female. In
the report, mention is made again of some sort of ad hoc extension provided
by HJ Prinsloo to De Vos. No signature of Prinsloo is affixed, nor is a
Confirmatory Affidavit by Prinsloo annexed. The Court could similarly note
no involvement by Prinsloo in this matter, and it seems a previous pro forma
report was utilised by De Vos, which still mentioned Prinsloo. Again, the
report is drafted in the most generic terms, without any particularity.
[77] Again, no proper evaluation of the property was conducted, no access was
gained to the property, and no explanation was given regarding the attempts
made to gain access and conduct a proper investigation.
DISCUSSION:
[78] In none of the matters was an explanation offered for the non -compliance, or
the manner in which the properties were valued, or the affidavits ultimately
deposed to. It is evident that the Applicants either did not notice the
deficiencies with which their hired guns provided their reports, or
alternatively, the Applicants have become so accustomed to this
lackadaisical approach to the process that they merely advance these
documents into the Court system in the hopes that same would not be
picked up by the Court ultimately hearing the matter.
[79] I have no doubt that all of these continued postponements in these matters,
and the allegations that subsequent valuations have been conducted, will
ultimately be billed and placed on the Respondents' accounts . Because the
Applicant does not feel any financial burden for their actions, it seems there
is no real seriousness or effectiveness in the way this valuation process is
undertaken.
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[80] I believe that it is unfair to a consumer if an erroneous charge is b illed
against their account, even if they are in default of the initial credit
agreement. If a valuator attempted a valuation, and it was conducted in
such an insufficient manner that the Court cannot ut ilise his report or his
affidavit, then I am convinced that justice dictates it ought to be the person
instructing his subcontractor to be liable for their costs, and not the
consumer. The consumer is in default of a credit agreement , and for that,
ultimate judgment together with interest is charged against their account.
[81] Erroneous litigation or erroneous procedures followed by an Applicant
cannot form part of the costs levied against a consumer in default. This
principle ought to ring true as much for legal costs as it does for valuator’s
costs. Where procedural non -compliance exists, it would serve no practical
purpose to have costs stand over or form part of the cause, given that it can
be generally accepted that the Applicants will ultimately be successful in
their applications.
[82] What transpires, however, is that matters are continually postponed due to
the erroneous state of the Applicant’s papers or the non -compliance with
what the Applicant needed to prove, only for those wasted costs to ultimately
form part of the account the Respondent is vested with in any event . I
believe that, where a matter is non -compliant, and such non -compliance is
squarely resultant from the actions of an Applicant, a Court has a duty to
make a proper Order pertaining to the costs to ensure that those costs do
not ultimately find their way back to burden a Respondent.
[83] Insofar as it relates to the commissioning of documents and affidavits, the
Court is of the belief that the obligation to ensure compliance is as much on
a Deponent as it is on a Commissioner of Oaths. Commissioners of Oath
hold a specific office reserved for only certain professions that were deemed
hold a specific office reserved for only certain professions that were deemed
appropriate to afford to such professions a designation that could elevate a
document from a mere document to an affidavit. Once such a designation is
accepted by a Commissioner of Oaths, it should not be abused or misused.
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[84] An affidavit which, on face value, is non -compliant and which, on face value,
has not been properly commissioned should be, up until an explanation for
the non-compliance is provided and accepted by the Court, regarded as an
irregularity. The court generally applies a lenient approach to condoning
non-compliance if there is substantial compliance in the commissioning of
affidavits. Under those circumstances , however, at the very least, an
explanation for the non -compliance should be offered by the Commissioner
of Oaths and the Deponent to explain the non-compliance.
[85] Deponents and Commissioners of Oaths cannot simply proceed with the
signing and commissioning of affidavits in a manner in which they deem
appropriate under the circumstances, and to deviate from full compliance in
the hopes that the affidavit will ultimately be accepted by the Court.
[86] Full compliance remains the standard to be applied, and a deviation
therefrom, being the lesser bracket of substantial compliance, is something
that, upon explanation, would, under certain circumstances, be accepted.
Substantial compliance ought not to be the norm; full compliance ought to be
the norm.
[87] Affidavits in respect of Rule 46A applications play a crucial role, as they aid
the Court in reaching a just conclusion and ensuring ultimate justice between
the parties. It is one of the most important documents to be filed by an
Applicant when an application of this nature is made, and absent such an
affidavit and a proper report, an order as sought by an applicant simply
cannot be granted unless exceptional circumstances have been proven to
explain the deviation from the norm.
REMOVAL FROM THE ROLL:
[88] Insofar as Counsel specifically for the matters of First Rand Limited – Case
Number: 6230/2024, and Nqaba Finance 1 (RF) Ltd – Case Number:
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1492/2017 wished for the matter to be removed from the roll, such requests
were denied by the Court.
[89] It unfortunately happens too often that, when deficiencies are highlighted in
Applicants’ papers, the matter is simply removed from the roll, a s it is
evidently clear in the current matter; matters are simply placed back on the
roll in the hopes of a new Presiding Officer not noticing the deficiencies that
exist since the inception of a matter.
[90] The Court did not believe it to be in the interest of justice to simply remove
the matters from the roll, and, by highlighting the deficiencies in the
respective applications, the Court trusts that similar errors will not recur in
future applications.
ORDERS:
1. Case Numbers: 1091/2020, 6230/2024, 492/2017 are removed from the
roll.
2. The Applicant in each case is given leave to file new valuations under
oath.
3. The Applicants may not set down their applications again before
comprehensive and thorough valuations in respect of the properties in
question have not been conducted.
4. In each of the matters, the Respondents shall be given Notice of Set
Down of the next hearing date , which service shall be personal unless a
substituted service order has already been granted by the Court.
5. Together with the Notice of Set Down, the Applicants are directed to serve a
copy of this Judgment on the Respondents.
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6. There shall be no order as to costs in respect of all of the applications, and
the wasted costs in respect of the postponement of the hearings in all the
cases are not to be charged to the Respondents’ accounts as held by the
respective Applicants.
7. The Registrar is directed to deliver a copy of this Judgment to the Council of
Property Valuers, established under the Property Valuers Profession Act, 47
of 2000.
________________________
H F FOURIE AJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
Judgment reserved on: __________________
Date of delivery: __________________
______________________________________________________________
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[1] SB Guarantee Company (Pty) Ltd v De Sousa (2023/035447) [2024] ZAGP
JHC 459; 2024 (6) SA 625 (GJ) (6 May 2024)
[2] NKATA v FIRSTRAND BANK LTD 2016 (4) SA 257 (CC) at para 94
[3] ABSA Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ)
[4] Nhlanhla Mdakane and Others v Kwadukuza Municipality and Others
(2026/040712) [2026] ZALCD 11 (2 March 2026)
[5] See First Rand Bank v Briedenhan [2022] 3690 (ECG)
See also Knuttel NO v Bhana 2021 (JOL) 51059 (GJ)
See also Maluleke v JR 209 Investments [2021] 6033-2021 (GP)