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
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-010120
DATE: 14 MAY 2026
In the matter between:
LOMBARDY HOME OWNERS ASSOCIATION NPC Applicant
and
LILLIAN MOKGALAKANE MAKGOLELA First Respondent
KINGSLEY MAKGOLELA Second Respondent
THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY Third Respondent
ABSA HOME LOANS
GUARANTEE CO (RF) (PTY) LIMITED Fourth Respondent
Neutral Citation: Lombardy HOA v Makgolela and Others (2024-010120)
[2026] ZAGPJHC --- (14 May 2026)
Coram: Adams J
Heard: 4 May 2026 – ‘virtually’ as a videoconference on Microsoft Teams
Delivered: 14 May 2025 – This judgment was handed down electronically by
circulation to the parties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 10:30 on 14 May 2026.
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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Summary: Monetary judgment – application for – claim by Home Owners’
Association – arrear levies and related charges – duty on the applicant to collect
levies – obligation on members of the association to pay their levies –
Execution – sale in execution – of immovable property – for substantial debt,
growing monthly – no other remedies available to the applicant – judicial
oversight provided over the sale in execution – reasonable and fair reserve
price set for the sale in execution – to ensure that applicant’s constitutional right
to adequate housing in terms of section 26 of Constitution is not unreasonably
limited –
Judgment – monetary – granted in favour of the applicant against the
respondents – respondents’ immovable property declared specially executable
– realistic and reasonable reserve price set for the sale in execution at a public
auction.
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ORDER
(1) Judgment is granted in favour of the applicant against the first and the
second respondents, jointly and severally, the one paying the other to be
absolved, for payment of the sum of R211 662.07, together with interest
thereon at the prime interest rate plus 3% per annum, compounded
monthly in arrears, from date of issue of the application, being 30 July
2025.
(2) The first and the second respondents’ immovable property, being Erf 1[…] ,
P[…] Township, City of Tshwane Metropolitan Municipality, Registration
Division JR, Gauteng, measuring 796 square meters, held by Deed of
Transfer number: T[…] , be and is hereby declared to be specially
executable.
(3) The Registrar of this Court be and is hereby authorised and directed to
issue a writ of execution against the hypothecated property above, to
cause to be realised by public auction for payment of the outstanding
balances set out above and in other judgments of this and other Court s,
and also all other costs and charges in this said case to be hereafter duly
taxed according to Law.
(4) A reserve price is set for the sale of the property, at a sale in execution, at
a value of R3.5 Million.
(5) The first and the second respondents, jointly and severally, the one paying
the other to be absolved, shall pay the applicant’s costs of this opposed
application, including Counsel’s costs on scale ‘A’ of the tariff referred to in
Uniform Rule of Court 67A(3), read with rule 69.
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JUDGMENT
Adams J:
[1]. This is an opposed application by the applicant in terms of Uniform Rule
of Court 46A. The applicant seeks an order declaring the immovable property of
the first and second respondents, being Erf 1[…] , P[…] T[…] , City of Tshwane
Metropolitan Municipality, Registration Division JR, Gauteng, measuring 796
square meters, held by Deed of Transfer number: T […] (‘the property ’),
specially executable. The applicant also applies for a monetary judgment for
arrear levies that have accrued since a previous default judgment, as well as
costs on an attorney-and-client scale.
[2]. The first respondent opposes the application. The second respondent
has not opposed. The t hird and fourth respondents are cited as interested
parties and have also not opposed.
[3]. The issue to be decided in this matter is simply whether the applicant has
made out a case for the relief sought and whether the first respondent has
raised sustainable defences against the relief being sought. Those issues are to
be decided against the factual backdrop of the matter , with the facts herein, as
set out briefly in the paragraphs which follow, by and large being common
cause.
[4]. The first and second respondents are the joint registered owners of the
property, which presently is the primary residence of the first respondent . By
virtue of their ownership of the property, t he first and second respondents are
members of the applicant, a home owners association, and are bound by its
Memorandum of Incorporation ( ‘MOI’). On 14 March 2024, this Court granted
default judgment against the f irst and second respondents in favour of the
applicant in the amount of R333 294.39, together with interest and costs, for
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arrear levies and other charges. The respondents subsequently launched a
rescission application, which was dismissed by this Court on 20 May 2025.
[5]. Pursuant to the judgment, the a pplicant caused a writ of execution
against movable property to be issued. On 19 June 2025, the Sheriff attended
at the property. The f irst respondent informed the Sheriff that she did not have
sufficient money or assets to settle the judgment debt. The Sheriff was able to
attach movable assets worth an estimated R3 100 only. A nulla bona return was
rendered.
[6]. As at 1 August 2025, the arrears had, according to the applicant,
increased to R544 956.46. The Applicant now seeks an additional monetary
judgment of R211 662.07 (the increase in arrears since the default judgment)
and an order declaring the property specially executable.
[7]. It bears emphasising that t he applicant already has a final monetary
judgment of R333 294.39. The relief sought under rule 46A is to declare the
property executable to satisfy that judgment. The additional monetary claim of
R211 662.07 is ancillary to the main relief. It arises from the same cause of
action (non-payment of levies under the MOI) and seeks to update the Court on
the continuing indebtedness. The Court has jurisdiction to grant such relief in
order to avoid a multiplicity of actions. The f irst respondent has not denied the
indebtedness in any substantive way, nor has she placed any evidence before
the Court to suggest the amount is incorrect.
[8]. The applicant is accordingly entitled to a judgment for that sum, which
represents the least amount of the first and second respondents’ indebtedness
to the applicant, if regard is had to the fact that that sum has since the date of
the issue of this application increased. In that regard, the first respondent has
made payments since then, however, those payments service current levies
charged and failed to make a dent in the arrears.
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[9]. I therefore intend granting the monetary judgment prayed for by the
applicant.
[10]. As regards the executability application, r ule 46A(2) requires a court
considering an application to declare a primary residence executable to
establish whether the property is the primary residence of the judgment debtor
and to consider alternative means of satisfying the judgment debt. The court
may authorise execution only if, having considered all relevant factors, it is
warranted.
[11]. The property is reportedly the primary residence of the f irst respondent,
her adult daughter and her minor daughter. The Court must therefore carefully
balance the a pplicant’s right to enforce its judgment against the f irst
respondent’s right to adequate housing under section 26 of the Constitution.
[12]. The first respondent contends that there are other reasonable ways to
satisfy the debt. She points to a valuation report of her movable property, which
values the movable assets at R326 415.90. She also states that she is
employed, earns a net salary of R50 000 per month, and is willing to pay R5
000 per month towards the debt. Furthermore, she has made some payments
(from November 2025 to April 2026) of approximately R5 353 to R5 853 per
month.
[13]. In support of his foregoing contentions, Mr Netshipise, who appeared on
behalf of the first respondent, rightly placed reliance on the case authority i n
Standard Bank of South Africa Ltd v Van Nelson and Another
1, in which it was
held as follows at para 51: -
‘[51] An execution order against the primary residence of the debtor should be the
last resort and only when all other avenues to satisfy the arrears have been
meaningfully exhausted. This was not the case on the facts before me. This should not
be construed to mean that debtors who have put up their immovable property as
security for the mortgage loan agreement are absolved of their contractual obligations
1 Standard Bank of South Africa Ltd v Van Nelson and Another 2025 (3) SA 658 (WCC).
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under the loan agreement. To order otherwise would be inconsistent with the legal
position that contracts voluntarily concluded should be enforced if they and/or their
enforcement is not contrary to public policy. However, this approach, in my view,
strikes a balance between the contractual rights of the bank and the s 26 rights of the
debtors.’
[14]. I was also referred to Williams and Another v Standard Bank of South
Africa Ltd and Another2, which held as follows: -
‘When considering such an application, the Court must consider whether there are
alternative means by which the judgment debtor may satisfy the judgment debt other
than execution, and may only grant an order authorising execution against the primary
residence of a judgment debtor if there are no other satisfactory means of satisfying the
judgment debt.’
[15]. Moreover, as submitted by Mr Netshipise, i t must be borne in mind that
execution against immovable property , which is the primary residence of the
judgment debtor, may have a serious impact on the judgment debtor ’s
Constitutional right to adequate h ousing. Hence our justice system requires a
judicial oversight when an order to declare a debtor's immovable property which
is his/her primary, specially executable.
[16]. This principle was confirmed in Bestbier and Others NNO V Nedbank
Ltd3, which held as follows: -
‘[22] Rule 46A requires judicial oversight and consideration by a court of various
factors when a creditor seeks to execute against “the residential immovable property of
a judgment debtor”. There is considerable force in Du Plessis & Penhold's argument in
their discussion of Jaftha and Saunderson, that the only way to determine whether the
right to adequate housing has been compromised is to require judicial oversight in all
cases of execution against the immovable property on a case-by-case basis.’
2 Williams and Another v Standard Bank of South Africa Ltd and Another [2019] ZAGPPHC 364 (3 May
2019).
2019).
3 Bestbier and Others NNO V Nedbank Ltd 2023 (4) SA 25 (SCA).
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[17]. The applicant submits that the movable property is insufficient to satisfy
the judgment debt (R333 294.39, exclusive of interest and costs). Even on the
first respondent’s own valuation, the movable goods are worth less than the
judgment debt. Moreover, the valuation reflects ‘ market value’, not the likely
proceeds of a forced sale by the Sheriff, which would be substantially lower.
The payments made by the f irst respondent are minimal and have been
allocated to the most recent arrears, leaving the judgment debt largely
undisturbed.
[18]. I accept the a pplicant’s submissions. The value of the movable property
is insufficient to satisfy the judgment debt. The offer to pay R5 000 per month is
also insufficient. The judgment debt is more than R333 000, and the monthly
offer would take many years to extinguish even the capital, ignoring continuing
monthly levies and interest. The first respondent has not made a meaningful
proposal to clear the judgment debt within a reasonable period.
[19]. The Sheriff’s nulla bona return is a strong indicator that execution against
movables is not a viable alternative. The first respondent’s own version confirms
that the Sheriff was unable to find sufficient attachable movables. The fact that
she later commissioned a valuation does not change the practical reality that
the movables were either not pointed out to the Sheriff or were not readily
attachable.
[20]. The first respondent’s narrative relating to the construction delays and
penalties is not a defence to the judgment. The rescission application was
dismissed. The judgment debt is final and binding. The applicant is not obliged
to accept an unrealistic payment proposal that would leave the debt outstanding
for many years.
[21]. As regards the principle of proportionality and the right to housing, I have
considered the impact that the sale of the property will have on the f irst
respondent and her children. It will undoubtedly be severe. T he Constitutional
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Court judgment in Jaftha v Schoeman 4 finds application. Insofar as the first
respondent’s right to adequate housing may be limited by the order sought
herein, it should be borne in mind that a debtor cannot avoid a legitimate
judgment indefinitely by claiming that the home will be lost. The Court must
balance the competing interests.
[22]. In this case, the debt is substantial and growing. The applicant is a
homeowners’ association that relies on the payment of levies by all members to
maintain the common property and meet its obligations. The non-payment by
the respondents places an unfair burden on the other paying members. The
applicant has exhausted all reasonable means to recover the debt – a default
judgment, a dismissed rescission application and execution against movables.
There is no other satisfactory means to satisfy the judgment debt.
[23]. Moreover, the first respondent clearly has the means to acquire
alternative accommodation, which means that the limitation on her right to
housing is reasonable in the circumstances.
[24]. The first respondent’s offer of R5 000 per month is not a reasonable
alternative. Even if accepted, the debt would continue to escalate because
monthly levies and interest exceed R5 000. The latest levy statement shows
that as at April 2026, the arrears have grown to R681 777.32. The bondholder’s
balance is R1 878 810.53 and municipal arrears are R6 167.54. The property’s
forced sale value is R3 100 000, which is well above the total secured and
unsecured debt, so there is equity to protect the f irst respondent’s interest after
the sale.
[25]. I am satisfied that execution against the property is proportionate and
warranted. The judicial oversight required by rule 46A and the Constitution has
been exercised. The Applicant has made out a proper case. The reserve price
should, in my view, be set at R3.5 million.
4 Jaftha v Schoeman 2005 (2) SA 140 (CC).
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Costs
[26]. The general rule is that costs should follow the suit. The applicant should
therefore be granted the costs of this application. In that regard, t he applicant
seeks costs on the attorney-and-client scale in terms of clause 6.24 of the MOI,
which provides that a defaulting member is liable for all legal costs on that
scale. I am not persuaded that a punitive costs order is warranted in the
circumstances of this matter.
[27]. I therefore intend granting costs on the party and party scale.
Order
[28]. In the result, I make the following order: -
(1) Judgment is granted in favour of the applicant against the first and the
second respondents, jointly and severally, the one paying the other to be
absolved, for payment of the sum of R211 662.07, together with interest
thereon at the prime interest rate plus 3% per annum, compounded
monthly in arrears, from date of issue of the application, being 30 July
2025.
(2) The first and the second respondents’ immovable property, being Erf 1[…] ,
P[…] Township, City of Tshwane Metropolitan Municipality, Registration
Division JR, Gauteng, measuring 796 square meters, held by Deed of
Transfer number: T[…] , be and is hereby declared to be specially
executable.
(3) The Registrar of this Court be and is hereby authorised and directed to
issue a writ of execution against the hypothecated property above, to
cause to be realised by public auction for payment of the outstanding
balances set out above and in other judgments of this and other Courts ,
and also all other costs and charges in this said case to be hereafter duly
taxed according to Law.
(4) A reserve price is set for the sale of the property, at a sale in execution, at
a value of R3.5 Million.
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(5) The first and the second respondents, jointly and severally, the one paying
the other to be absolved, shall pay the applicant’s costs of this opposed
application, including Counsel’s costs on scale ‘A’ of the tariff referred to in
Uniform Rule of Court 67A(3), read with rule 69.
________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 4 May 2026 – ‘virtually’
JUDGMENT DATE: 14 May 2026 – handed down
electronically
FOR THE APPLICANT: P J Badenhorst
INSTRUCTED BY: Heerschop Pienaar Incorporated,
Allen’s Nek, Roodepoort
FOR THE FIRST RESPONDENT: M E Netshipise
INSTRUCTED BY: Mudau and Netshipise Attorneys,
Alberton
FOR THE THIRD and THE
FOURTH RESPONDENTS: No appearance
INSTRUCTED BY: No appearance