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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023-133293
In the matter between:
NEDBANK LIMITED Applicant
and
FREDERICK SAMMY WILLIAMS First Respondent
MICHEL DOLORES WILLIAMS Second Respondent
JUDGMENT
MAUNATLALA AJ:
[1] This is an application by Nedbank Limited (“the Applicant”) for an order declaring the
immovable property being Erf 8[ …] E[…] Park Ext 9, Gauteng (“the property”), which is the
primary residence of the Second Respondent, specifically executable. The application was
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED:NO
DATE: 29 APRIL 2026… ……… SIGNATURE… ………………
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brought in terms of Rule 46A of the Uniform Rules of Court and was set down for hearing
before me on 11 April 2026.
[2] When the matter was called, there was no appearance on behalf of the Applicant. The
Second Respondent, Ms Michel Dolores Williams, appeared in person. She requested that
the application be dismissed.
[3] Having considered the papers filed of record, including the Applicant’s founding affidavit
with its extensive annexures and the Second Respondent’s opposing affidavit, and having
regard to the Applicant’s failure to appear and its failure to file a replying affidavit, I am
satisfied that the application falls to be dismissed. I set out my reasons below.
Procedural Failures of the Applicant
[4] The Applicant set this matter down for hearing. It was therefore under an obligation to
appear and prosecute its own application. Its failure to do so, without any explanation
tendered to the court, is a clear abandonment of the relief it seeks. A court cannot grant
relief in favour of an absent party who fails to support its own case, particularly where the
opposing party appears and opposes the relief.
[5] Furthermore, the Second Respondent filed an opposing affidavit on 14 January 2026.
The Applicant has not filed any replying affidavit. In motion proceedings, a replying affidavit
is not merely a formality; it is the applicant’s opportunity to answer the respondent’s version
and to place disputed facts beyond contention. By failing to file a reply, the Applicant has
effectively conceded that it has no answer to the material disputes raised by the Second
Respondent.
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Material Disputes of Fact on the Papers
[6] Even if the Applicant had appeared, the papers themselves reveal numerous material
disputes of fact that are not capable of resolution on the papers without oral evidence. The
court in the case of Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008]
ZASCA 6; 2008 (3) SA 371 (SCA) , at paragraph 12 provided that; “an applicant who seeks
final relief on motion must in the event of conflict, accept the version set up by his opponent
unless the latter’s allegations are, in the opinion of the court, not such as to raise a real,
genuine or bona fide dispute of fact or are so farfetched or clearly untenable that the court
is justified in rejecting them merely on the papers.”
The Applicant’s failure to file a replying affidavit leaves the disputed facts hanging. In such
circumstances, the application cannot succeed.
[7] Dispute as to the outstanding balance: The Applicant claims , at paragraph 11 of its
founding affidavit, that as at 30 March 2024, the Respondents were indebted to it in the
sum of R124,264.99, with arrears of R59,108.68 as at 29 March 2024. The Second
Respondent, however, disputes the accuracy, lawfulness, and enforceability of this
balance. In her opposing affidavit, at paragraph 35 and 36, she states under oath that as at
2018, the last statement she received reflected an outstanding balance of approximately
R180,000. She further states that she made a lump sum payment of R100,000 in 2020,
under the genuine belief that the bond had been largely settled. She complains that for
three years following that payment, the Applicant provided her with no regular monthly or
quarterly statements, making it impossible for her to verify how interest, fees, or penalties
were being calculated.
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[8] At Paragraph 20 of her affidavit in opposition of rule 46A, she specifically disputes the
capitalised interest and legal fees reflected in a reconciliation provided to her by a Mr
Marius Fourie on 23 December 2025. These are not bald or vague denials; they are
specific, particularised disputes that go to the very foundation of the Applicant’s claim.
[9] Dispute as to compliance with the National Credit Act: The Applicant alleges that it
delivered a section 129(1)(a) notice to the First Respondent and a section 86(10) notice to
the Second Respondent by registered post, and that these notices were delivered to the
designated post office. The Second Respondent at paragraph 5 of her affidavit in
opposition of rule 46A, however, states that she did not receive the alleged registered mail.
She further states that correspondence was sent to incorrect contact details, despite her
having provided correct information to the Applicant. The Applicant’s reliance on printouts
from the South African Post Office website does not, without more, prove actual receipt or
that a reasonable attempt was made to ensure delivery to the correct address. Given the
Second Respondent’s sworn denial, a factual dispute arises as to proper notice.
[10] Dispute as to the Applicant’s conduct and administrative failures: The Second
Respondent raises serious allegations of administrative failures on the part of the Applicant.
At paragraph 21 of her opposing affidavit, she states that a Mr Magell, a home loan agent
of the Applicant, advised her to suspend further payments due to missing information and
incorrect contact details on her account, and undertook to escalate the matter for
investigation, but no such investigation occurred. She states that in February 2025, she
attended the Applicant’s head office, submitted all required documentation for a
restructuring, and proposed a suretyship by her brother. She was only informed in July
restructuring, and proposed a suretyship by her brother. She was only informed in July
2025 that the restructuring had not been processed because the bond was allegedly a joint
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account, notwithstanding that she is divorced. She submits, correctly in my view, that the
Applicant’s contradictory instructions, administrative failures, and prolonged delays
materially prejudiced her and caused the arrears to worsen. The Applicant has filed no
replying affidavit to deny or explain these serious allegations.
[11] Dispute as to the section 86(10) termination: The Applicant alleges that it
terminated the Second Respondent’s debt review process in terms of section 86(10) of the
National Credit Act. However, the Second Respondent states, at paragraph 3 of her
opposing affidavit to Rule 46A, that the Applicant accepted minimum payments through a
debt counsellor arrangement for several years without issuing statements, and that interest
and penalties were applied retroactively despite her good- faith compliance. She also states
that she was not informed that acceptance of minimum payments would result in the
cancellation of insurance benefits or retrenchment cover. These allegations, if true, could
have a material bearing on the lawfulness of the termination and the enforceability of the
accelerated debt. Again, the Applicant has chosen not to reply.
The Constitutional Balance and Rule 46A
[12] Section 26 of the Constitution of the Republic of South Africa, 1996, guarantees
everyone the right to have access to adequate housing. A court may not order the
execution sale of a person’s primary residence without having regard to all relevant
circumstances, as required by Rule 46A.
[13] The Applicant itself, in its founding affidavit, acknowledges that the property appears to
be the primary residence of the Second Respondent. The Applicant also acknowledges that
it is unclear whether any dependants, minor children, elderly persons, or disabled persons
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reside in the property. In the face of this uncertainty, and given the Second Respondent’s
appearance in person and her stated willingness to resolve the matter, it would be
disproportionate and unjust to grant an order declaring the property executable.
[14] The Second Respondent has not refused to pay her lawful obligations. To the contrary,
she states under oath that she is willing to pay a verified, lawful, and properly reconciled
amount. She has arranged to lease the property and proposes to utilise the rental income
to service and settle the outstanding balance over an extended period. She does not
consent to any restructuring that results in further capitalisation of interest or charges – a
position that is not unreasonable given the disputes she has raised.
Conclusion on the Papers
[15] In motion proceedings, an applicant must make out its case on the papers filed. Where
the respondent raises material disputes of fact, and the applicant fails to file a replying
affidavit to answer those disputes, the court is entitled to accept the respondent’s version,
particularly where that version is coherent, detailed, and not inherently implausible.
See Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6;
2008 (3) SA 371 (SCA) at paragraph [13]:
“A real, genuine and bona fide dispute of fact can only exist 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”.
[16] Further, the court in Plascon-Evans Paints Ltd v Van Riebeeck Paints(Pty) Ltd 1984 (3)
SA 623 (A) (At 634E-635C) held that if a dispute of fact becomes apparent on the affidavits,
a final order/a relief with a final effect may only be granted if the allegations in the
applicant’s affidavits, which have been admitted by the respondent, considered together
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with the allegations made by the respondent, justify such an order. In this case, this was
not the position. As a result of the hanging material dispute of facts, I am inclined to refuse
the grant of a final order on paper only.
[17] The Applicant’s failure to appear at the hearing of its own application is, in any event,
fatal. A party who sets a matter down and then abandons it cannot expect the court to grant
relief in its absence, especially over the opposition of a respondent who appears in person
and asks for dismissal.
[18] In all the circumstances, the Applicant has failed to establish that it is entitled to the
relief sought. The application is devoid of merit and falls to be dismissed.
Order
[19] Accordingly, I make the following order:
1. The application is dismissed with costs.
MI MAUNATLALA
ACTING JUDGE OF THE HIGH COURT,
JOHANNESBURG, GAUTENG DIVISION
DATE OF HEARING: 20 January 2026
DATE OF ORDER: 11 February 2026
DATE OF REASONS FOR JUDGMENT: 29 April 2026