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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-101602
In the matter between:
In the matter between:
ABSA HOME LOANS GUARANTEE
COMPANY (RF) PTY LTD Applicant
and
PARMESAN THANGAVELOO GRAMONEY First Respondent
SINDHA GRAMONEY Second Respondent
This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by email, publication on Case Lines. The date
for the handing down is deemed to be 10 June 2026.
Mortgage — Foreclosure — Judicial execution — Primary residence — Bank
seeking default judgment and order under rule 46A declaring property specially
executable — Respondents more than a decade in arrears — Execution
proportionate and justified — Application for default judgment granted — Uniform
Rules of Court, rule 46A.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
10 June 2026 _________________
DATE SIGNATURE
2
MUDAU, J:
Introduction
[1] The applicant approaches this court on motion for two principal orders: first, a
money judgment against the respondents for the outstanding indebtedness
under a home loan agreement; and second, an order declaring the
respondents’ immovable property, which is mortgaged to the applicant as
security, specially executable in terms of Uniform Rule of Court 46A.
[2] The respondents oppose the application. Their opposition is not directed at
the merits of the indebtedness. Instead, they raise a series of procedural and
technical defences, which they contend are dispositive of the matter. I deal
with each of these defences in turn, but before doing so, it is necessary to set
out the factual matrix and the contractual arrangements that underpin the
applicant’s claim.
The factual and contractual background
[3] On 25 April 2006, the respondents concluded a written mortgage loan
agreement with Sanlam Home Loans 101 (Proprietary) Limited (“Sanlam
101”). In terms of that agreement, Sanlam 101 lent and advanced to the
respondents a total principal debt of R 716 955.44, repayable in 240 monthly
instalments, initially in the amount of R 6 787.35, at an interest rate of 9.2%
per annum (prime minus 1.3%).
[4] The loan agreement was structured within a broader contractual framework
that is common in the home loan industry. Simultaneously with the conclusion
of the loan agreement, the applicant’s predecessor in title, Sanlam Home
Loans Guarantee Company (Pty) Ltd, entered into a Common Terms
Guarantee Agreement with the lender’s predecessor. In terms of that
guarantee agreement, the guarantee SPV (now the applicant) irrevocably
guaranteed the due and punctual payment of all sums due by the respondents
to the lender.
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[5] As security for the guarantee, the respondents executed an indemnity in
favour of the applicant’s predecessor and registered a mortgage bond (B […] )
over their immovable property, being Erf 1[ …] I[… ] Township, in favour of the
applicant’s predecessor. The mortgage bond was registered on 2 June 2006
at the Deeds Office in Johannesburg.
[6] Over time, corporate restructurings took place. Sanlam 101 changed its name
to Absa Home Loans 101 (Pty) Ltd. Sanlam Home Loans Guarantee
Company changed its name to the applicant, Absa Home Loans Guarantee
Company (RF) (Pty) Ltd. With effect from 12 June 2014, Absa Home Loans
101 (Pty) Ltd sold, ceded, and assigned its home loan business – including
the respondents’ loan agreement – to Absa Bank Limited. Absa Bank
thereafter became the lender under the loan agreement, while the applicant
remained the guarantor and the holder of the indemnity and mortgage bond.
[7] It is common cause that the respondents last made a payment in respect of
their home loan on 7 September 2014 for R 9 000.00. Since then, no further
payments have been made. As a result of the respondents’ default, the entire
outstanding balance became due and payable.
[8] On 7 August 2019, the lender’s attorneys addressed a letter of demand to the
respondents, calling upon them to remedy their breach. That letter was sent
by prepaid registered post to the respondents’ chosen domicilium citandi et
executandi in terms of the Home Loan Agreement . A further letter of demand
was sent on 13 January 2020. Both letters complied with the requirements of
section 129 of the National Credit Act 34 of 2005 (the “NCA”). The
respondents were referred to section 129 (1) of the NCA and it wa s proposed
that they refer the Home Loan Agreement to a debt counsellor, altemative
dispute resolution agent, consumer court or the Ombudsman for Financial
Services, so that the parties would be able to resolve any dispute arising out
Services, so that the parties would be able to resolve any dispute arising out
of their default or agree to a plan to bring the payments under the Home Loan
Agreement up to date.
[9] The respondents were notified that their failure to respond to the letters would
result in legal proceedings being instituted against them by Absa Bank and/or
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the applicant to enforce the Home Loan Agreement and to recover the full
amount of the indebtedness together with collection costs and administration
charges. The respondents did not respond to either letter, nor did they make
payment or propose a plan to bring the arrears up to date.
[10] On 16 October 2019, Absa Bank gave the applicant written notice in terms of
the guarantee agreement, calling upon the applicant to proceed against the
respondents under the indemnity and the mortgage bond.
[11] On 7 September 2020, the applicant and Absa Bank instituted action
proceedings against the respondents under case number 24054/2020. Those
proceedings were defended. The applicant subsequently decided to withdraw
the action and instead bring the present application on motion, contending
that there were no genuine disputes of fact. On 1 September 2025, the action
was formally withdrawn. Notice of withdrawal was served on the respondents
and uploaded to CaseLines.
[12] As of 29 May 2025, the respondents’ outstanding indebtedness to the
applicant stood at R 1 659 788.54. Because no payments have been made for
more than a decade, the arrears amount to the entire outstanding balance. A
certificate of balance, signed by a duly authorised manager of the applicant,
has been produced. That certificate constitutes prima facie proof of the
indebtedness in terms of the loan agreement, the indemnity, and the
mortgage bond.
The respondents’ grounds of opposition
[13] The respondents raise four principal grounds of opposition. First, they contend
that the matter is lis pendens because the action proceedings under case
number 24054/2020 were still pending at the time this application was
launched. Second, they argue that the applicant lacks locus standi because it
failed to attach the cession agreement in terms of which Absa Bank acquired
the home loan book, and that this constitutes a fatal non- compliance with
Uniform Rule of Court 18 (6). Third, they complain that the founding affidavit is
Uniform Rule of Court 18 (6). Third, they complain that the founding affidavit is
defective because the paragraph numbering is irregular, in breach of Rule
18(3). Fourth, they allege that there is a dispute of fact regarding whether they
5
signed the power of attorney for the registration of the mortgage bond. In
addition, they have noted that the property is their primary residence and that
their right of access to adequate housing is engaged.
[14] I deal with each ground in turn, but I also observe at the outset that the
respondents have not challenged the existence or validity of the loan
agreement, the guarantee, the indemnity, or the mortgage bond. They have
not denied that they received the loan proceeds. They have not denied that
they defaulted on their payment obligations. They have not placed any
evidence before the court to suggest that they have made any payment since
September 2014. In substance, the respondents’ opposition is technical and
procedural, and it is to that opposition that I now turn.
Lis pendens
[15] The doctrine of lis pendens , as our courts have consistently held, prevents a
party from pursuing multiple proceedings involving the same parties, the same
cause of action, and the same subject matter. The underlying principle is the
requirement of finality in litigation and the avoidance of oppressive and
duplicative proceedings.
1
[16] The respondents point to the fact that the action proceedings were instituted
before the present application, and that at the time the application was
launched, those proceedings had not yet been finalised. They submit that the
applicant should not be permitted to litigate the same dispute in two different
forms of proceedings simultaneously.
[17] However, the action proceedings have now been withdrawn. The notice of
withdrawal was served on the respondents on 1 September 2025, and the
applicant has placed a copy of that notice before this court. Withdrawal of
proceedings brings those proceedings to an end. There are no longer any
pending proceedings between the same parties based on the same cause of
action. The lis that previously existed has been removed.
action. The lis that previously existed has been removed.
1 See Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA); Socratous v Grindstone Investments
2011 (6) SA 325 (SCA); Caesarstone Sdot -Yam Ltd v World of Marble and Granite 2000 CC 2013 (6) SA 499
(SCA).
6
[18] In any event, even if the action had not been withdrawn at the time the
application was heard, the doctrine of lis pendens is not an absolute bar. This
court has discretion to permit parallel proceedings where there is good reason
to do so, particularly where the applicant seeks to avoid the delays inherent in
trial proceedings and where there are no genuine disputes of fact. The
respondents have not identified any prejudice that they would suffer beyond
the ordinary inconvenience of having to defend proceedings. The withdrawal
of the action eliminates any remaining concern. The lis pendens defence
therefore falls away entirely.
Locus standi and compliance with Rule 18 (6)
[19] The respondents argue that the applicant has failed to prove its locus standi
because it relies on a cession agreement in terms of which Absa Bank
acquired the home loan business from Absa Home Loans 101 (Pty) Ltd, but
that cession agreement was not attached to the founding affidavit. They
invoke Uniform Rule of Court 18 (6), which provides that where a party relies
on a contract, the pleading must state whether the contract is written or oral,
when, where, and by whom it was concluded, and if it is written, a true copy
must be annexed.
[20] There is no doubt that the cession agreement is a written contract and that a
copy thereof was not attached to the founding affidavit. The applicant has,
however, attached a copy of the sale and cession agreement to its replying
affidavit. Moreover, when the respondents raised this point, the applicant
expressly invited them to file a further affidavit dealing only with that
agreement, and the applicant indicated that it would consent to the admission
of such further affidavit. The respondents declined that invitation. They have
not filed any further affidavit. They have not challenged the authenticity or
validity of the cession agreement. They have not alleged any prejudice, nor
have they demonstrated any.
have they demonstrated any.
[21] The purpose of Rule 18 (6) is to ensure that the opposing party is placed in a
position to meaningfully respond to the allegations and to test the validity of
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the contract relied upon. 2 In the present case, the respondents have been
given a full opportunity to respond to the cession agreement. They have
chosen not to do so. A technical non-compliance that causes no prejudice and
that has been cured in the replying affidavit, with an offer to allow a further
responsive affidavit, cannot be permitted to defeat an otherwise unopposed
claim on the merits.
[22] In addition, the transfer of assets from Sanlam 101 to Absa Bank is a matter
of public record. The name changes of the relevant entities are similarly a
matter of public record, as evidenced by the certificate of name change from
CIPRO, which the applicant has annexed to its papers. The respondents’
suggestion that the applicant lacks locus standi is without substance. The
applicant is the registered holder of the mortgage bond. It is the party entitled
to enforce the indemnity. It has standing to bring these proceedings.
Defective pleadings under Rule 18 (3)
[23] The respondents complain that the founding affidavit’s paragraph numbering
is irregular, running from paragraphs 1 to 24 and then reverting to paragraph
19. They submit that this causes embarrassment and prevents them from
properly answering the allegations.
[24] This complaint is, with respect, opportunistic and without merit. The
numbering irregularity is a minor clerical error. It does not obscure the
substance of the applicant’s case. The respondents have in fact filed an
answering affidavit and heads of argument. They have demonstrated that they
understand the case they are required to meet. A court will not strike down a
pleading for a trivial irregularity that does not cause substantial prejudice.
Courts will not be over -technical about the matter .3 Rule 18 (3) is directory,
not peremptory, and substantial compliance is sufficient. The respondents’
point on this issue is rejected.
The power of attorney dispute
point on this issue is rejected.
The power of attorney dispute
2 See Home Talk Development (Pty) Ltd v Ekurhuleni Metropolitan Municipality2018 (1) SA 391 (SCA) at [28].
3 See Lind v Spicer Bros (Africa) Ltd 1917 AD 147.
8
[25] The respondents contend that there is a dispute of fact because they deny
signing the power of attorney for the registration of the mortgage bond. In
support of this contention, they point to a single sentence in their answering
papers.
[26] There are several answers to this contention. First, in the action proceedings
under case number 24054/2020, the respondents filed an amended plea in
which they admitted the allegations relating to the power of attorney.
Paragraph 10 of their amended plea states: “The contents of this paragraph
are admitted insofar as the same accurately reflects the contents of POC2” .
That admission is binding on them. A party cannot admit a fact in one set of
proceedings and then deny the same fact in another set of proceedings. The
respondents are estopped from now raising a dispute that they have already
conceded.
[27] Second, the existence and validity of the mortgage bond itself is not disputed.
The mortgage bond is a registered deed. It is a public document. It creates
real rights. The power of attorney is merely the authorising instrument that
preceded registration. Even if there were some irregularity in the power of
attorney – which there is not – that would not invalidate the registered bond.
The bond speaks for itself.
[28] Third, the respondents’ bald denial, without any supporting evidence, is not a
genuine or bona fide dispute of fact. In motion proceedings, a respondent
cannot avoid judgment by making a bare denial. The denial must be credible
and raise a real, genuine, and bona fide dispute.
4 The respondents have
fallen far short of that standard.
Compliance with the National Credit Act
[29] Section 129 (1) of the NCA requires a credit provider, before commencing
legal proceedings, to draw the consumer’s default to the consumer’s attention
in writing and to propose that the consumer refer the credit agreement to a
debt counsellor, an alternative dispute resolution agent, a consumer court, or
debt counsellor, an alternative dispute resolution agent, a consumer court, or
4 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
9
an ombudsman. Section 130 (1) provides that a credit provider may approach
the court for an order to enforce a credit agreement only if the consumer has
been in default for at least 20 business days and at least 10 business days
have elapsed since the notice was delivered.
[30] The applicant has proved that the letters of demand dated 7 August 2019 and
13 January 2020 were sent by prepaid registered post to the respondents’
chosen domicilium. The tracking results from the South African Post Office
have been annexed, showing that the items were processed and that
notifications were left for the respondents. The law is settled that service by
prepaid registered post is sufficient, and that a reasonable consumer would
check for notices at the post office.
5
[31] The respondents have not responded to the notices. They have not referred
the matter to a debt counsellor. They have not applied for debt review. They
have not made any arrangement to bring the payments up to date. The
requirements of sections 129 and 130 have been fully satisfied. There is no
legal impediment to the grant of the relief sought.
Uniform Rule of Court 46A – execution against primary residence
[32] Rule 46A was introduced to give effect to the constitutional right of access to
adequate housing, enshrined in section 26 of the Constitution. A court may
not order execution against a person’s primary residence unless it has
considered all relevant circumstances, including the amount of the arrears, the
period of default, the financial position of the debtor, the likelihood of the
debtor being able to pay the debt within a reasonable period, and whether the
property was acquired with a state subsidy
6.
[33] The applicant has provided the court with detailed information. The property is
the respondents’ primary residence. The respondents have not placed any
information before the court regarding their financial position, nor have they
suggested that they are able to pay the debt within a reasonable period. The
suggested that they are able to pay the debt within a reasonable period. The
5 See Absa Bank Ltd v Mkhize and Two Similar Cases [2013] ZASCA 139; 2014 (5) SA 16 (SCA); Kubyana v
Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400 (CC).
6 See generally,Japhta v Schoeman & Others; Van Rooyen v Stoltz & Others 2005 (2) SA 140
(CC) at para [55].
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evidence is that they have made no payments since September 2014 – a
period of over twelve years when the matter was argued. The outstanding
indebtedness is approximately R 1.66 million. The market value of the
property, according to a sworn valuation by a registered valuer, is R 950
000.00. The municipal valuation of the property is R2 980 000.00, but it is not
a reliable indicator of market value for execution purposes. The expected low
market value of the Property is R 1 020 000.00 per the Windeed valuation that
was attached. The outstanding balance in respect of rates, taxes and other
charges amounts to R 2 684.00.
[34] The applicant has demonstrated that there is negative equity in the property.
The security is insufficient to cover the debt. In such circumstances, there is
no equity to protect for the benefit of the respondents. Courts have held that
where the market value of the property is less than the outstanding debt, a
reserve price may not be necessary, and the court may be disinclined to set
one. However, as the full court pointed out,
“it will always be in the interests of
both the Banks and the judgment debtor to realise as much value in the
property as reasonably possible”. Setting a reserve price ensures that ensures
that the debtor “ is not worse off due to unrealistically low prices being
obtained and accepted at sales in execution”.
7
[35] The respondents have not claimed that an order of execution would
unjustifiably infringe their right of access to adequate housing. They have
placed no evidence before the court about their personal circumstances, their
income, their expenses, their family situation, or any alternative
accommodation. The mere fact that the property is their primary residence is
not sufficient to prevent execution. The constitutional right to housing is not an
absolute bar to eviction or execution; it requires a balancing of interests.
8
[36] In balancing the competing interests, the following factors weigh heavily in
8
[36] In balancing the competing interests, the following factors weigh heavily in
favour of the applicant: the respondents have been in default for more than a
decade; they have not attempted to pay or to engage with the credit provider;
they have obstructed the previous action proceedings on what the applicant
7 See Absa Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ) at [65].
8 See Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC).
11
describes as frivolous and vexatious grounds; the property has negative
equity; the applicant is a commercial entity that is entitled to enforce its
security; and the respondents have failed to place any information before the
court to support their constitutional claim. The prejudice to the applicant if the
order is not granted is substantial – it will be left with an unsecured debt and a
deteriorating security. The prejudice to the respondents, on the limited record
before the court, is not sufficiently established to outweigh the applicant’s right
to enforce its security.
[37] I am accordingly satisfied that the requirements of Rule 46A have been met
and that an order declaring the property specially executable is just and
equitable in the circumstances. In the exercise of this court’s oversight role
and discretion, a reserve price is set. Should the sale in execution not achieve
a price that covers the debt and costs, the shortfall will remain a claim against
the respondents.
Costs
[38] The applicant seeks costs on the attorney -and-client scale. The respondents
have opposed the application on grounds that are without substance. They
have raised technical defences that have no merit. They have admitted key
facts in the action proceedings and then sought to deny them in this
application. They have caused unnecessary delay and expense. In my view,
this is a proper case for an award of costs on a higher scale consistent with
the loan agreement . The respondents have conducted themselves in an
obstructive and unreasonable manner . Costs on the att orney and client scale
are warranted.
Order
[39] In the premises, the following order is made:
1. The respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the applicant the sum of R 1 659
788.54 (ONE MILLION SIX HUNDRED AND FIFTY- NINE THOUSAND
12
SEVEN HUNDRED AND EIGHTY- EIGHT RAND AND FIFTY- FOUR
CENTS).
2. Interest on the aforesaid amount at the rate of 0.00% per annum,
calculated daily on the outstanding balance and capitalised monthly in
arrears, from 29 May 2025 to the date of final payment, both dates
inclusive.
3. The immovable property described as Erf 1 […] I[…] Township,
Registration Division I.R., Province of Gauteng, measuring 892 (eight
hundred and ninety -two) square metres, held by Deed of Transfer No.
T29254/2006, is hereby declared specially executable.
4. The Sheriff of this court is authorised and directed to attach and sell the
said immovable property in execution, in accordance with the Uniform
Rules of Court.
5. A reserve price is set for the sale in execution at R 1 200 000.00 (1.2
million rands).
6. If the property is not sold at the reserve price, the a pplicant is granted
leave to approach this Court on the same papers, duly supplemented,
for further directions.
7. Costs on the attorney and client scale.
___________________________
MUDAU J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of Hearing: 25 May 2026
Date of Judgment: 10 June 2026
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APPEARANCES
For the Applicant: Adv M De Oliveira
Instructed by: Lowndes Dlamini Attorneys
For the Respondents: Self-Represented
Mr Parmesan Thangaveloo Gramoney
Ms Sindha Gramoney
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