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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No.: 15020/2024
In the matter between:
SENIORS FINANCE (PTY) LTD First Applicant
SENIORS FINANCE SECURITY SPV (PTY) LTD Second Applicant
(intervening party, joined by order herein)
And
MALCOLM ROSEN N.O. First Respondent
FRANKLIN ROSEN N.O. Second Respondent
(in their capacities as executors of the estate of the late Helen Rosen)
CITY OF CAPE TOWN METROPOLITAN MUNICIPALITY Third Respondent
Coram: Francis J
Heard: 19 June 2026
Delivered: 3 July 2026
ORDER
______________________________________________________________________
1. The application by Seniors Finance Security SPV (Pty) Ltd to intervene as
Second Applicant is granted. The combined founding affidavit dated 28
November 2025 and the replying affidavit dated 26 February 2026 stand as its
papers.
2. Condonation for the late delivery of the executors’ answering affidavit in the Rule
46A and intervention applications is granted. The executors, in their
representative capacity, are to pay the costs of the condonation application on
the attorney-and-client scale.
3. The executors’ application to compel compliance with the Rule 35(12) notice is
dismissed. The executors, in their representative capacity, are to pay the costs of
that application on Scale B.
4. The respondents’ objection to the First Applicant’s standing to enforce the debt,
founded on the cession of the mortgage bond, is dismissed.
5. It is declared that the estate of the late Helen Rosen is indebted to the First
Applicant in the Settlement Value as at 25 August 2022 in the sum of R1 322
223,32, as reflected in the certificate of balance annexed to the applicants’ draft
order.
6. Interest is payable on the sum in paragraph 5 at the rate of prime plus 1,95% per
annum, calculated daily and compounded monthly, from 25 August 2022 to the
date of final payment, subject to the following.
(a) The aggregate of interest and the charges contemplated in s 101(1)(b) to (g)
of the Act accruing after 25 August 2022 shall not exceed the unpaid
balance of the principal debt as at that date, being the amount deferred
under the agreement together with the value of any item contemplated in s
102 of the Act, recorded in the certificate of balance as R300 000, and not
the closing balance reflected in that certificate.
(b) The common- law in duplum rule applies to the post -death period without
interruption by the institution or pendency of these proceedings.
(c) Upon the granting of this judgment, the resulting judgment debt constitutes
a new principal sum, on which interest runs afresh at the rate aforesaid from
the date of this order, the common- law in duplum rule thereafter operating
against that new principal.
7. If a dispute arises as to the calculation of interest under paragraph 6, either party
may apply on the same papers, supplemented as necessary, for its
determination. That may include a referral to oral evidence under Uniform Rule
6(5)(g) or, with the consent of both parties, to a referee under s 38 of the
Superior Courts Act 10 of 2013.
8. The counter -application for cancellation of Mortgage Bond No B17[ … ] is
dismissed.
9. The immovable property described as Sections 1 and 3, S [… ] B[…] Road No
[…] , Sea Point East, Cape Town, held under Deeds of Transfer ST1[ …] and
ST1[…] , and encumbered by Mortgage Bond No B17[ …] in favour of the Second
Applicant, is declared specially executable.
10. A reserve price of R3 200 000 is set for any sale in execution of the property.
11. The executors, in their representative capacity, are to pay 70% of the applicants’
costs in the main, intervention and Rule 46A applications on Scale B, save where
costs have otherwise been ordered. Such costs include the costs of one counsel.
12. The applicants, jointly and severally, are to pay 30% of the executors’ costs in the
main and Rule 46A applications on Scale A, save where costs have otherwise
been ordered.
13. The executors, in their representative capacity, are to pay the costs occasioned
by the raising of the cession point, on the attorney and client scale.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
FRANCIS, J:
Introduction
[1] This matter concerns the home of the late Helen Rosen. In 2007, at the age of 80
and with no monthly income, Ms Rosen took what is known as a lifetime loan, or
reverse mortgage, of R300 000, secured by a bond over her home in Sea Point.
Such a loan is repayable not in instalments during the borrower’s lifetime but as a
single sum when a defined Repayment Event occurs, ordinarily the borrower’s
death. Ms Rosen made no repayment while she lived. She died on 25 August
2022, in her ninety -fifth year, and the debt then fell due. The First Applicant now
claims R1 664 464,71 from her estate. The executors argue that the common-law
in duplum rule, alternatively s 103(5) of the National Credit Act 34 of 2005 (the
Act), limits the indebtedness to about R600 000. The difference between the
parties is therefore some R900 000, and it is the heart of this matter.
[2] The litigation has been fragmented. In addition to the money claim, I am seized
with several related matters. There is a counter -application to cancel the
mortgage bond. A related special purpose vehicle applies to intervene. There is
an application under Uniform Rule 46A to have the property declared specially
executable, and an application for condonation of a late answering affidavit. Both
sides claim costs, including costs de bonis propriis against directors and legal
representatives.
[3] The matter was argued before me on 27 May 2026. With the leave of the Court,
further representations were delivered on 9 June 2026. The respondents also
delivered further representations, without such leave, on 19 June 2026.
The parties
[4] The First Applicant, Seniors Finance (Pty) Ltd, was at all material times a
registered credit provider under the Act. Its business is providing equity -release
credit to elderly homeowners.
[5] The Second Applicant, Seniors Finance Security SPV (Pty) Ltd (“the SPV”), is a
special purpose vehicle incorporated to hold mortgage bonds as security for the
First Applicant’s obligations to its funders. It is the cessionary of the bond in issue
in the counter-application, and it intervenes by the order made below.
[6] The First and Second Respondents, Malcolm Rosen N.O. and Franklin Rosen
N.O., are the executors of the estate of the late Helen Rosen and act in that
capacity. I refer to them as the executors.
[7] The Third Respondent, the City of Cape Town, was cited in respect of any
interest arising from rates over the property. No relief is sought against it. It has
not participated, and no order is made against it.
Background
[8] On 26 July 2007, Ms Rosen and the First Applicant concluded a written loan
agreement comprising a Quotation, General Terms, and Loan Details. The
principal debt was R300 000, advanced in five annual tranches from the Advance
Date. Interest was calculated daily and capitalised monthly at the prime rate of
Standard Bank plus 1,95%, with an initial rate of 14,95%. No monthly repayment
of capital or interest was payable. The full Settlement Value, being the
outstanding advances together with all accrued interest and charges, was
payable only on a Repayment Event, the principal such event being the
borrower’s death.
[9] The papers include a Needs Analysis and Borrower Declaration dated 19 July
2007. It recorded that Ms Rosen owned the property, that her monthly income
was nil and her monthly expenses about R4 519, and that she was assisted by
an accredited financial adviser, Mr N W Kleynhans, who endorsed the product.
The owner’s estimate of value was R1 100 000. A contemporaneous valuation by
the First Applicant’s valuer was R1 200 000.
[10] On 12 September 2007, a covering mortgage bond was registered in favour of
the First Applicant over the property described as Sections 1 and 3, S […] B[…]
Road No […] , Sea Point East, held under Deeds of Transfer ST1[..] and ST1[…]
(“the property”).
[11] By a written cession executed on 3 April 2008, pursuant to a resolution passed
on 12 March 2008, the First Applicant ceded its right, title and interest in the
mortgage bond to the SPV, for value received and without recourse. The cession
was endorsed against the bond in the Deeds Office on 16 May 2008. On 23
February 2009, the SPV undertook, under an Independent Borrower Guarantee,
to cede the bond back to the First Applicant on demand in the event of a
borrower default. The legal effect of that cession is disputed, and, in particular,
whether it stripped the First Applicant of the right to enforce the personal claim
against the borrower.
[12] The loan was drawn down in five tranches between September 2007 and
September 2011, totalling R300 000, which included an initiation fee of R5 000
added to the capital. Ms Rosen made no repayment in her lifetime. Interest
accrued daily and was capitalised monthly as the agreement provided.
[13] Ms Rosen died on 25 August 2022. By 10 October 2023, the First Applicant had
advised the executors that the settlement amount was R1 527 057,57. On 20
November 2023, the executors’ attorneys indicated that the estate would
recognise only R600 000, being capital plus a like amount of interest, relying on
the in duplum rule. The First Applicant rejected that position, and the dispute
remained unresolved.
[14] On 14 June 2024, the executors gave notice under s 32 of the Administration of
Estates Act 66 of 1965 calling for a formal affidavit in support of the claim. Rather
than comply, the First Applicant launched this application on 2 July 2024.
The course of the proceedings
[15] The founding affidavit asserted that Rule 46A of the Uniform Rules of Court did
not apply because the property was no longer the deceased’s primary residence,
and it did not disclose the cession to the SPV. The bond itself was not attached.
The answering affidavit of 15 March 2025 raised prescription, in duplum , non-
compliance with s 129, reckless credit, failure to use the s 32 procedure, and
want of locus standi by reason of the cession. A counter-application to cancel the
bond was filed at the same time.
[16] The first respondent deposed that he had lived at the property since about 2000
to care for his mother, that it was his primary residence, and that Rule 46A
applied.
[17] The executors served a Rule 35(12) notice on 19 August 2024. The First
Applicant produced some, but not all, of the documents demanded. An
application to compel was launched and later abandoned, and both sides seek
costs in respect of it.
[18] After the executors’ attack on the absence of the SPV, and once it was
appreciated that Rule 46A applied, the applicants, on 28 November 2025,
launched a composite application to join the SPV and to have the property
declared executable. By order of 8 December 2025, the matter was postponed to
9 March 2026, and a timetable was set, with the executors directed to answer by
19 December 2025. They answered on 3 February 2026, some seven weeks
late, and sought condonation. On 9 March 2026, the matter was postponed by
agreement to 27 May 2026.
The interlocutory matters
Condonation
[19] The principles governing condonation are settled. As Melane v Santam Insurance
Co Ltd 1962 (4) SA 531 (A) held, the court has a discretion, to be exercised
judicially on a conspectus of all the facts, in essence as a matter of fairness to
both sides, having regard to the degree of lateness, the explanation for it, the
prospects of success, and the importance of the matter.
[20] The explanation is that the executors’ attorney was abroad from 21 November to
7 December 2025, that the recess intervened, that he returned to chambers on
19 January 2026, and that the answering affidavit, a document of some 74
pages, was delivered on 3 February 2026.
[21] The explanation is incomplete. The week between 8 and 14 December 2025 is
unaccounted for. The recess did not suspend the executors’ obligations, and the
fortnight after the recess is not fully explained. The conduct does not, however,
betray a wilful disregard of the rules. The matter had twice been postponed, and
the applicants’ own conduct contributed materially to the fragmentation, in
particular their late appreciation of Rule 46A and their initial non- disclosure of the
cession.
[22] Balancing these matters and given that the executors administer an estate rather
than a personal interest, the just course is to admit the affidavit but to mark the
Court’s displeasure by a punitive order as to the costs of the condonation
application. Condonation is granted on that basis.
The Rule 35(12) application
[23] Rule 35(12) entitles a party to require production of a document referred to in
another party’s affidavits. In the event of non-compliance, the document may not
be used without the leave of the court. That is the sanction the sub- rule provides.
It does not, by itself, authorise an application to compel. The mechanism for that
is Rule 35(7).
[24] In any event, the application was overtaken by events. The executors delivered
their answering affidavit on 15 March 2025 without the documents they claimed
had been withheld. The purpose of a Rule 35(12) notice, which is to enable a
party to consider its position before answering, was thereby achieved.
[25] The application was irregular and unnecessary. The executors must bear their
costs on the ordinary scale.
The intervention application
[26] The SPV seeks joinder as the second applicant. Where a party shows a direct
and substantial interest in the order sought, that is, a legal interest in the subject
matter that may be prejudicially affected by the order, the court has no discretion
to refuse the intervention. It must be allowed (South African Riding for the
Disabled Association v Regional Land Claims Commissioner and Others 2017 (5)
SA 1 (CC) paras 9 and 11).
[27] The executors themselves accept that the SPV’s consent is required to cancel
the bond. Their replying affidavit in the counter-application records that, whatever
the outcome of the main application, they could not dispose of the property
without the SPV’s consent to cancellation of the bond. That concession is
decisive. The SPV, as registered holder of the ceded bond, has a direct and
substantial interest in the relief.
[28] I am unmoved by the submission that the SPV’s financial statements reflect total
assets of R1,00. The state of its balance sheet bears on any execution against it,
not on its interest in the bond.
[29] The intervention is granted. The combined founding affidavit and the replying
affidavit of 26 February 2026 will stand as the SPV’s papers.
The issues
[30] On the merits, the issues may be summarised as follows: whether the applicants’
deponent had the necessary authority and personal knowledge, whether the
cession of the mortgage bond to the SPV deprived the First Applicant of the
standing to enforce the debt, whether the claim has prescribed, whether the in
duplum rule, at common law or as given statutory form in s 103(5) of the Act,
caps the claim, whether a notice under s 129 of the Act was required, whether
the loan constituted reckless credit, whether the dispute -resolution clause barred
the proceedings, whether the applicants ought to have proceeded under the
Administration of Estates Act, whether the property should be declared
executable and at what reserve, and what order as to costs is appropriate. The in
duplum question is the centre of gravity of the dispute, and I devote the bulk of
this judgment to it.
Authority and personal knowledge
[31] The executors object that Ms Moira Burger, who deposed to the founding
affidavit, became a director of the First Applicant only on 3 March 2023 and
cannot speak to events in 2007. They also impugn the authorising resolution, on
the basis that it refers to an unidentified service- level agreement and that one
director’s signature is faint.
[32] The authority of a deponent and the authority of a litigant are different questions.
In Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA), the
Supreme Court of Appeal (“SCA”) held that the deponent to an affidavit in motion
proceedings need not be authorised by the party to depose. It is the institution of
the proceedings that must be authorised.
[33] The institution of proceedings in this matter was authorised. The notice of motion
was issued by attorneys on instruction, and the resolution records that Ms Burger
is authorised to institute legal proceedings in the company's name. The reference
to a service -level agreement that is not attached is not, on a fair reading of the
resolution, integral to the authority conferred, and it appears to address an
unrelated arrangement. A faint signature, in the absence of any genuine
challenge to its authenticity, is no basis to impugn the resolution.
[34] The contention that Ms Burger cannot speak to events in 2007 also fails. A
deponent for a corporate party may depose to facts drawn from the company’s
records, provided the source is identified, and the deponent has acquainted
herself with the documents. Ms Burger does so. The point goes to weight, not
admissibility.
[35] The objection is, accordingly, overruled.
The cession and the applicants’ standing
[36] The executors raise, by a note delivered after argument, a further objection. They
say that by the cession of 3 April 2008, the First Applicant divested itself of the
right to enforce the debt, and that it lacks the standing to claim payment. They
rely on Picardi Hotels Ltd v Thekwini Properties (Pty) Ltd 2009 (1) SA 493 (SCA),
contending that a cession in securitatem debiti deprives the cedent of the power
to sue on the ceded debt, which it may recover only by taking re- cession, and
that the First Applicant, having elected not to take re- cession before suing, must
fail.
[37] I deal first with the manner in which the point arises. The cession was pleaded in
the answering affidavit as an attack on the First Applicant’s locus standi . It was
pursued as a discrete objection only later, in a note dated 2 June 2026. That was
after argument on 27 May 2026 and after the applicants had presented their
case. The applicants replied to it conditionally on 3 June 2026. In their reply of 19
June 2026, the executors maintain that they abandoned no defence in the course
of argument. I need not resolve that question. I have determined each defence
the executors raised on its merits, so nothing in this judgment turns on whether
their oral argument was narrowed. The cost consequence I attach to the cession
point does not rest on any narrowing either. It rests on the plain fact, which is not
in dispute, that the point was raised by a note delivered after argument had
closed and after the applicants had argued, so occasioning wasted costs. A
challenge to standing goes to the competence of the proceedings. It turns here
on documents already in the record and raises no fresh factual enquiry. It would
be unsatisfactory to grant final relief while leaving a real question of standing
unresolved. I have, therefore, entertained the point. The manner in which it was
raised is a matter for costs, to which I return below.
raised is a matter for costs, to which I return below.
[38] On the merits, the question is one of interpretation, to be approached as required
by Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA) para 18. The language of the instrument is read in its context and against
its apparent purpose, the document is taken as a whole rather than in isolated
phrases, and a sensible, businesslike construction is preferred to one that is not.
These are the principles the SCA applied in Picardi itself, drawn there from
Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A) at 767E–768E. The
executors’ construction does not survive that approach.
[39] Picardi does not carry the executors as far as they would take it. The cession
there was of all the cedent’s rights to the rentals and other revenues of the
property, coupled with an express right in the cessionary bank to sue lessees for
those rentals. Its object, on the face of the instrument, was the income stream
itself. It was that transfer of the right to the rentals that divested the cedent of the
standing to sue for them. The instrument before me is of a different character. It
is headed “Cession of Mortgage Bond”. Its operative words cede the First
Applicant’s “right, title and interest … in the above bond”. Its express object is the
bond, that is, the security, and not the personal claim under the home loan.
[40] The executors rely on the closing words that the cession was made “in terms of a
Cession of Existing Home Loan Agreements” and on the principle that a
mortgage bond is accessory to the debt it secures to argue that the underlying
debt passed with the bond. The reference to a further instrument, one not
disclosed in these proceedings, cannot bear that weight. Read with the heading
and the operative clause, it locates the broader transaction in which the bond
was ceded. It does not, of itself, turn a cession of the bond into an outright
cession of the debt. I accept that the words “for value received and without
recourse” point the other way, and that the accessory character of the bond
carries some force. Both must be weighed. They do not, however, prevail against
the document read as a whole and against the commercial setting, to which I
turn.
[41] That setting is one of security, and it is decisive. On its own constitutive
turn.
[41] That setting is one of security, and it is decisive. On its own constitutive
documents, the SPV was incorporated to hold the mortgage bonds in respect of
loans granted by the First Applicant and to issue guarantees, not to acquire the
loan book. Its audited financial statements, in 2008 and again in 2025, describe
its business in those terms and record no borrower receivables among its assets,
only a nominal shareholder loan. Had the underlying debts been ceded out to the
SPV, they would have appeared as its assets. They do not.
[42] The Independent Borrower Guarantee of February 2009 confirms the picture.
Under it, the SPV undertakes, on the First Applicant’s demand after a borrower’s
default, to cede the relevant mortgage back to the First Applicant. Its liability is
never to sound in money, and the First Applicant’s remedy against it is confined
to specific performance of that re -cession. A vehicle that holds security, re-cedes
it on default, and whose liability never sounds in money is not the owner of the
debts. The arrangement is a cession of the bond as security, supported by a
guarantee, the personal claim against the borrower remaining with the First
Applicant.
[43] On that construction, the First Applicant has standing, and Picardi is
distinguishable. The conclusion does not, however, depend on it. Assume, in the
executors’ favour, that the home loan was ceded in securitatem debiti together
with the bond. Even then, the objection fails. The rule that a cedent must take re-
cession before suing exists to ensure that the ceded right is enforced by the party
in whom it vests, and to protect the debtor against the hazard of a second claim.
Both purposes are met where the cedent and cessionary stand before the court
as co-applicants, jointly seeking the relief. The SPV has been joined. It makes
common cause with the First Applicant, and the estate, bound by this judgment,
faces no risk of a further action by the SPV on the same debt. In that situation,
the absence of a re-cession formally registered in the Deeds Office is a matter of
form and does not defeat the claim.
[44] The endorsement of the cession against the bond on 16 May 2008 does not
assist the executors. It records the cession of the bond and nothing else, and it is
silent as to the personal claim. To treat it as proof that the debt was ceded is to
silent as to the personal claim. To treat it as proof that the debt was ceded is to
conflate the security with the obligation it secures, which is the error at the root of
the objection.
[45] The objection to the First Applicant’s standing accordingly fails, whether the
cession is construed as I have construed it or on the executors’ own premise.
Prescription
[46] The executors plead that the claim has prescribed, contending that each tranche
became due on advance, so that the three- year period under s 11(d) of the
Prescription Act 68 of 1969 has long since expired.
[47] That misreads the agreement. This was a lifetime loan. By its terms, the
Settlement Value became due only on a Repayment Event. Until then, no debt
was claimable, and prescription does not begin to run against a creditor whose
claim has not yet accrued. A debt is due, for the purposes of s 12(1), only when it
is immediately claimable and the creditor is in a position to enforce it (Deloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd
1991 (1) SA 525 (A) ).
[48] The Repayment Event, being Ms Rosen’s death, occurred on 25 August 2022,
and these proceedings were launched some 22 months later. The three- year
period had only then begun to run and had not expired. In any event, s 11(a)(i) of
the Prescription Act prescribes a thirty -year period for a debt secured by a
mortgage bond, and the personal claim and the bond, though now held by
different entities, secure one and the same indebtedness.
[49] The defence of prescription fails.
The in duplum rule and section 103(5) of the Act
[50] This is the central and most difficult question in the matter, and the one on which
the parties are furthest apart. The executors assert that the indebtedness is
limited to roughly double the capital, some R600 000, by the in duplum rule,
whether in its common-law form or in the statutory form given to it by s 103(5) of
the Act. The applicants submit that the rule, in either form, has no application to
the interest that accrued during Ms Rosen’s lifetime, and affects only interest
accruing after her death. The answer turns on the proper relationship between
the common- law rule, its statutory counterpart in s 103(5), and the peculiar
structure of a lifetime loan. It must be given against the background of the recent
decision of the Supreme Court of Appeal in Sekunjalo, which has unsettled
assumptions long thought secure.
The common-law rule
[51] The in duplum rule is of considerable antiquity in our law. In its classic form, it
provides that arrear interest ceases to accumulate once the accrued and unpaid
interest equals the outstanding capital, so that interest may never, while it
remains unpaid, exceed the capital sum. Its purpose is protective. It shields
debtors against the unchecked accumulation of interest and gives effect to a
public interest in preventing debt from spiralling without limit.
[52] Until recently, three features of the rule were generally accepted. First, it operates
on arrear interest, that is, interest that has fallen due and remains unpaid, and
not, on the orthodox view, on interest that has merely accrued but is not yet
payable. Secondly, the capitalisation of arrear interest does not change its
character. Arrear interest debited to the capital account remains interest for the
purposes of the rule, and a creditor cannot escape the cap by rolling unpaid
interest into capital. Thirdly, the rule was once thought to be suspended by the
institution of proceedings, so that interest might run afresh once a creditor sued.
That view, taken in Standard Bank of South Africa Ltd v Oneanate Investments
(Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA), was overruled by the
Constitutional Court in Paulsen and Another v Slip Knot Investments 777 (Pty)
Ltd 2015 (3) SA 479 (CC), which held that the rule continues to operate during
litigation and that interest does not begin to run anew merely because summons
was issued. Interest runs afresh only once judgment is granted, the judgment
debt constituting a new principal debt for the rule’s purposes.
Sekunjalo
[53] The executors’ principal reliance is on the SCA’s decision in SACTWU
Sekunjalo
[53] The executors’ principal reliance is on the SCA’s decision in SACTWU
Investments Group (Pty) Ltd v Sekunjalo Independent Media (Pty) Ltd and
Another [2026] ZASCA 39. It requires careful consideration because it bears
directly on the first of the settled features described above.
[54] The facts were these. A creditor advanced R150 million to a company on a
seven-year term. The agreement provided that, where the debtor had insufficient
funds to pay accrued interest on a stipulated interest date, that interest would be
capitalised on that date. The debtor paid no interest over the term, and by
maturity, the capitalised interest substantially exceeded the principal debt. The
creditor argued that, because the agreement permitted the debtor to defer
payment when it could not pay, the resulting interest was not arrear interest and
the in duplum rule did not apply.
[55] The SCA rejected that argument. It held that interest capitalised because the
debtor could not pay on the interest date is, in substance, arrear interest,
however the agreement may choose to characterise the non- payment, and it
reaffirmed Oneanate that capitalisation does not alter the legal character of
interest. Capitalised arrear interest is still interest, not true capital, for the
purposes of the rule. The court warned that to permit creditors to structure
around the in duplum cap through provisions for deferral and capitalisation would
license boundless interest of the kind the rule exists to prevent and would be
contrary to public policy. On that approach, the indebtedness in that matter was
capped at double the capital, with default interest running afresh only from the
date of judgment.
[56] I do not understand Sekunjalo to be confined to its facts. Its reasoning is broad,
and it rests avowedly on public policy. The decision has been read, with reason,
as eroding the once- clear line between accrued and arrear interest, and as
signalling that accrued unpaid interest may be treated as arrear for the rule’s
purposes more readily than the older authorities allowed. To that extent, the
purposes more readily than the older authorities allowed. To that extent, the
executors are correct. A court may no longer dispose of an in duplum argument
simply by labelling the interest accrued rather than arrear and saying no more.
Any analysis of the Rosen loan that rested on so bare a distinction would be
inadequate, and I do not adopt it.
[57] Sekunjalo, however, does not support the executors’ conclusion in this matter for
the following reasons.
Section 103(5) of the Act governs this agreement
[58] The first, and more important, reason is that Sekunjalo was decided under the
common law, in respect of a loan of R150 million between commercial entities to
which the Act did not apply. The court was not concerned with, and did not
interpret, s 103(5) of the Act or the statutory scheme of which it forms part. The
Rosen loan, by contrast, is a credit agreement governed by the Act. It was
granted by a registered credit provider to a natural person and falls squarely
within the Act’s reach. For such an agreement, the statutory regime, and not the
unmediated common law, supplies the applicable rule.
[59] The cost of credit under the Act is comprehensively regulated by Part C of
Chapter 5, being ss 100 to 106. Section 100 limits the fees and charges a credit
provider may levy. Section 101(1) is exhaustive as to what a credit agreement
may require the consumer to pay. The permitted items are the principal debt, an
initiation fee, a service fee, interest, the cost of any credit insurance, default
administration charges, and collection costs. Section 102 identifies what may be
included in the principal debt. Section 103 regulates interest, and s 105 regulates
the maximum prescribed rates. Into this detailed scheme, the legislature inserted
s 103(5), which provides as follows.
“Despite any provision of the common law or a credit agreement to the
contrary, the amounts contemplated in section 101(1)(b) to (g) that accrue
during the time that a consumer is in default under the credit agreement
may not, in aggregate, exceed the unpaid balance of the principal debt
under that credit agreement as at the time that the default occurs.”
[60] In Nedbank Ltd v National Credit Regulator 2011 (3) SA 581 (SCA), the SCA held
that s 103(5) is not a mere codification of the common- law in duplum rule, and
that s 103(5) is not a mere codification of the common- law in duplum rule, and
that it differs from it in several material respects here. First, it caps not interest
alone but the aggregate of all the charges listed in s 101(1)(b) to (g), being the
initiation fee, service fees, interest, the cost of credit insurance, default
administration charges and collection costs. Secondly, it fixes the ceiling at the
unpaid balance of the principal debt as at the time the default occurs. Thirdly,
once that ceiling is reached, no further such charge may accrue, and, unlike at
common law, a payment by the consumer thereafter does not set interest running
afresh up to the cap. Nor is the provision suspended by litigation.
[61] Two features of the section are decisive. The first is its gateway. By its terms, the
section applies only to amounts that accrue while a consumer is in default.
Default is the trigger; absent a default, the section is not engaged. The second is
the meaning of principal debt. Section 101(1)(a) defines it as the amount
deferred in terms of the agreement, plus the value of any item contemplated in s
102. It is not the running balance of the loan account swollen by capitalised
interest. Consistent with Oneanate and Sekunjalo, capitalised interest remains
interest and does not enlarge the principal debt. Here, the amount deferred was
the capital of R300 000, to which the initiation fee of R5 000 was added under s
102, and none of it was repaid. The unpaid balance of the principal debt was
therefore of the order of R305 000. The certificate of balance that the applicants
have since produced bears this out. It records the principal debt as R300 000, set
apart from the closing balance of R1 322 223,32 swollen by capitalised interest.
No default arose during the borrower’s lifetime
[62] Under the agreement, Ms Rosen was obliged to pay nothing, neither capital nor
interest, during her lifetime. Interest was calculated daily and capitalised monthly,
but it was neither due nor payable until a Repayment Event, and the Settlement
Value fell due only on her death. While she lived, there was no obligation she
could fail to perform, and she could not be in default. It follows directly that s
could fail to perform, and she could not be in default. It follows directly that s
103(5) did not apply during her lifetime, for there was no period during which she
was in default in which any charge could accrue within the section’s reach.
[63] It is here that the distinction between Sekunjalo and the present matter is
material, and not merely formal. Both the statutory cap and the common- law rule
operate on interest that is in arrears, that is, interest on an obligation that is due
and unpaid. Arrear interest presupposes an obligation the debtor has failed to
meet, and default in s 103(5) is the statutory expression of that idea. In
Sekunjalo, the obligation existed. The debtor was bound to pay interest on
stipulated dates and did not do so, and the agreement’s provision for deferral and
capitalisation re-characterised, but did not erase, a failure to pay what was due.
The substance the court looked to was a real default dressed as a deferral. The
Rosen agreement differs in substance, not only in form. There was no interest
date and no obligation to pay during the term, and so no amount that fell due and
was left unpaid while Ms Rosen lived. There being no obligation, there was
nothing to be in arrears of, and the interest that accrued was not arrears interest
in any sense recognised by the rule. The mischief Sekunjalo sought to prevent is
interest mounting because a debtor who ought to pay does not. That mischief is
absent here, at the level of the statutory trigger and of the common-law rule alike.
Default cannot be read, as the executors would read it, to reach an arrangement
in which nothing is yet payable. That would sever the word from the failure of an
existing obligation it everywhere signifies. Purposive interpretation works within
the language, not against it. Sekunjalo did not interpret "default," and it cannot
supply a default where the facts do not warrant one.
Whether the common-law rule applies in parallel
[64] The executors’ answer is that the common- law rule applies to the agreement
alongside s 103(5), that the Act, as the SCA has observed, is not a code, and
that consumer-protection legislation sets a floor and not a ceiling, so that a more
generous common- law rule is not excluded but supplements the statutory
minimum. On that view, Sekunjalo , applied at common law, would cap the pre-
death interest even though s 103(5) does not.
[65] There is force in the submission, and I do not dismiss it lightly. The common law
[65] There is force in the submission, and I do not dismiss it lightly. The common law
is not wholly ousted by the Act, and the opening words of s 103(5), that the cap
operates despite any provision of the common law to the contrary, are naturally
read as ensuring the primacy of the statutory cap, not as a general abolition of
the common-law rule. But the conclusion the executors draw does not follow.
[66] The opening words of s 103(5) are directed at preventing the common law from
being used to dilute the statutory protection, for example, by reviving the running
of interest on a payment. That is precisely the construction the credit providers
urged, and the Supreme Court of Appeal rejected it in Nedbank. They are not a
warrant for a court to enlarge the cap beyond the field the legislature has marked
out. On the subject of the ceiling on the cost of credit, which is the very subject of
the in duplum rule, the legislature has spoken and has chosen default as the
moment from which the cap operates. To graft onto an agreement governed by
the Act a common- law rule that caps interest accruing before any default would
not supplement the statutory protection. It would rewrite the statutory trigger and
displace a considered legislative choice. That a court may not do under the guise
of applying the common law. There is a further answer, and it is decisive. In
Nedbank, the SCA held that s 103(5) is not a mere codification of the common-
law rule but a distinct statutory rule, and that, for credit agreements, the Act
governs; it is that rule which applies. The Act is not a code, and the common law
survives where the Act is silent. But on the ceiling on the cost of credit, the Act is
not silent. It has fixed the ceiling and capped it on default. For an agreement
within the Act, there is accordingly no parallel common-law cap left to invoke, and
the executors’ submission, which would have the common-law rule govern a field
the statute already occupies, cannot stand.
[67] This conclusion does not leave the vulnerable consumer unprotected. Where the
Act perceives a danger in the extension of credit to a consumer who cannot
sustain it, it addresses that danger directly, through the prohibition on reckless
credit in ss 80 and 81, the affordability and suitability assessment those sections
require, and the regulation of the cost of credit in ss 100 to 106. The protection of
require, and the regulation of the cost of credit in ss 100 to 106. The protection of
an elderly equity -release borrower against an improvident loan lies there, and I
turn to it below. It is not to be found in straining the in duplum cap to reach a
period the statute has deliberately placed outside it.
A candid acknowledgment
[68] I accept that the question is not free from difficulty. Sekunjalo ’s concern with
boundless interest speaks with particular force to the position of an income- poor
homeowner whose debt multiplies fivefold against the only asset she has, more
than it does to a commercial borrower of R150 million. A higher court, attracted to
the substance of the matter and to the protective public policy that animates the
rule, might hold that the common- law rule, as that court has lately understood it,
reaches even an agreement of this kind, or might develop the common law to
that end. A litigant might also seek to challenge, on constitutional grounds, a
statutory cap that leaves the cost of credit on an agreement of this kind
unchecked until death. No such challenge was pleaded before me, no relief was
sought against the reach of s 103(5), and the parties whose joinder it would
require are not before the court. That, too, is a matter for another forum. The
point is an important one, on which the law is presently in motion, and on which
authority from an appellate court would be of value. But sitting as a court of first
instance, and bound to give effect to the statute the legislature has enacted, I am
persuaded that for a credit agreement governed by the Act the applicable cap is
that in s 103(5), that the cap is capped on default, that no default arose during
Ms Rosen’s lifetime, and that the interest which accrued during her life is
accordingly not subject to it.
The position after death
[69] The position changes on Ms Rosen’s death. From 25 August 2022, the
Settlement Value was due and payable. The executors did not pay it, and the
estate fell into default. From that date, the interest that accrues is interest on a
debt that is due and unpaid, that is, arrear interest, and two consequences follow.
[70] First, s 103(5) applies, because the estate is in default. The cap it imposes is the
unpaid balance of the principal debt as at the time of the default, which I have
unpaid balance of the principal debt as at the time of the default, which I have
held to be of the order of R305 000. The aggregate of post -death interest and of
any charge within s 101(1)(b) to (g) accruing after 25 August 2022 may not
exceed that figure. The words “as of the time the default occurs ” fix the date on
which the principal debt is measured. They do not convert the accumulated pre-
death interest into a principal debt.
[71] Second, the common- law rule applies of its own force to the post -death period,
the estate being in default on a debt that is due. Following Paulsen , the rule is
not suspended by the institution of these proceedings, so that the post -death
interest, whether accruing before or during this litigation, may not, in the
aggregate, exceed the capital then outstanding. Of the two caps, the statutory
cap, measured against the principal debt of about R305 000, is the strict er and
prevails.
Quantum
[72] After the conclusion of argument, I directed the executors to furnish, by 17 June
2026, their own calculation of the unpaid balance as at the date of death, should
it differ from the balance certified by the applicants. The object was narrow. The
executors had disputed the quantum throughout, and the direction gave them the
opportunity to displace the certificate with a competing computation of their own.
They produced none. Their response, dated 17 June 2026, was twofold. The
document annexed to the applicants’ draft order is said not to be a valid
certificate of balance under clause 20 of the agreement, and the early running of
the loan account is said to disclose inconsistencies. The response was supported
by a letter from a chartered accountant, who recorded that he could not perform
the calculation without further information, and by a spreadsheet confined to the
period September 2007 to April 2008. The applicants replied on 18 June 2026
that the information the accountant sought was already in the record, which they
identified item by item, and that the certificate stood unimpugned. I take each
aspect of the executors’ response in turn.
[73] The first issue does not avail the executors. Clause 20 of the agreement provides
for a certificate of balance, and a certificate issued under that clause is prima
for a certificate of balance, and a certificate issued under that clause is prima
facie proof of the amount certified. That much is settled by Senekal v Trust Bank
of Africa Ltd 1978 (3) SA 375 (A). Where the debtor puts up nothing to disturb it,
that proof stands. The executors say that the certificate does not comply with
clause 20, but they do not identify the respect in which it fails to do so, nor have
they impugned the certified figure on its merits. The certificate was issued as at
25 August 2022. It certifies the unpaid balance as of that date at R1 322 223,32
and records the principal debt of R300 000 separately. A bald assertion that the
certificate is invalid, unaccompanied by any competing calculation, does not
displace the proof it carries.
[74] Nor does the second issue. The spreadsheet does not address the date of death
at all. It runs only to 30 April 2008 and goes no further than to suggest that the
balance at that date and the interest for that month were marginally smaller than
the loan statement reflects. The suggestion in any event rested on prime rates
that did not match the executors’ own schedule. MR17 records prime rising to
14% on 12 October 2007 and to 14,5% on 7 December 2007. The spreadsheet
held prime at 13,5% until 12 December 2007, then applied 14%, and never
applied 14,5%. Correcting the rates in the executors’ own schedule yields a
higher balance, not a lower one. The error , therefore, ran against them, not for
them. The executors have since accepted as much. In a reply delivered on 19
June 2026, after the applicants’ letter of 18 June 2026 had drawn the errors to
their attention, the executors conceded that they had wrongly held the prime rate
at 13,5% and had failed to adjust it, and they put up a corrected spreadsheet.
The corrected spreadsheet adopts the rates in MR17 and produces a balance as
at 31 March 2008 of R65 577,91, higher than the R65 550,16 on which they first
relied. Neither document was called for. I have received both, because the
applicants suffer no prejudice from a concession in their favour, and because the
record should reflect the executors’ own corrected figure. The concession does
not assist them. It confirms what I have already found, that the discrepancy on
which they relied was the product of their error, and the corrected figure, being
which they relied was the product of their error, and the corrected figure, being
higher, runs against them as the uncorrected one did. The corrected spreadsheet
still stops at April 2008 and says nothing about the position as of the date of
death. The executors have put up nothing that displaces the certified balance.
[75] The Settlement Value as at the date of death is now established. The certificate
of balance the applicants have produced, issued as at 25 August 2022, certifies
the unpaid balance at that date as R1 322 223,32, comprising the capital
advanced and the interest that accrued during Ms Rosen’s life, none of which is
capped on the analysis above. The same certificate records the principal debt
separately, as R300 000.
[76] This resolves the discrepancy I could not settle on the papers earlier. The loan-
statement figure of R1 504 306,27 as at 31 August 2022, on which reliance was
first placed, cannot be reconciled with a certified balance six days earlier that is
lower still. The applicants now rest their claim on the certificate, and I accept the
certified figure, because it was issued on the date of death. The pleaded R1 664
464,71 as at 27 May 2024 is explicable as that death- date balance carried
forward with post -death interest to the date of pleading. It is not, however, the
sum for which judgment is determined, because the post -death interest must be
calculated separately and is subject to the caps already described. I therefore
decline to grant judgment in the single lump sum proposed in the applicants’ draft
order.
[77] I must also decline the cap sought in the applicants’ draft order . The draft order
would confine the post -death cost of credit to R1 322 223,32, the closing
balance. But s 103(5), as I have held, measures the cap against the principal
debt, which the applicants’ own certificate fixes at R300 000. To cap the post -
death charges at the swollen closing balance would be to treat capitalised
interest as part of the principal debt, which Oneanate, Sekunjalo and the
architecture of the Act alike forbid. The cap is accordingly of the order of R300
000, and I framed the order to reflect that.
Section 129 of the Act
[78] Section 129(1), read with s 130, provides that a credit provider may not
[78] Section 129(1), read with s 130, provides that a credit provider may not
commence proceedings to enforce a credit agreement before first giving notice to
a consumer who is in default. Its trigger, again, is the default, and its purpose is
to afford the consumer an opportunity to remedy the default and bring the
agreement up to date, thereby reinstating it.
[79] The executors s ubmit that they step into the shoes of the deceased consumer.
Whether an executor or a person appointed to administer a deceased estate is a
consumer within the meaning of s 1 of the Act has not been authoritatively
settled. In ABSA Bank Ltd v Magiet NO (15967/2007) [2013] ZAWCHC 7, the
executrix of a deceased borrower was treated as a consumer to whom a notice
under s 129 was due, and a like approach was taken in SA Taxi Development
Finance (Pty) Ltd v Thethani NO (10417/2023) [2024] ZAWCHC 33. In MFC (A
Division of Nedbank Ltd) v Mkhwanazi and Others (15047/2020) [2022]
ZAGPJHC 203 para 55, the holder of letters of authority over a small estate
under s 18(3) of the Administration of Estates Act was held not to fall within the
definition, though the court there observed that no distinction should be drawn for
this purpose between such a person and an executor. The point has not been
decided by an appellate court as far as I am aware, and need not be resolved
here, as the matter may be disposed of on a different basis.
[80] The purpose of s 129, being the cure of default and the reinstatement of the
agreement, as explained in Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC),
cannot be realised on these facts. The agreement contemplated a single
Repayment Event. That event occurred, and the Settlement Value became due.
There is nothing to reinstate, and no arrears for an executor to cure by resuming
a payment pattern that the agreement never required. To insist on a s 129 notice
in these circumstances would be to insist on an empty formality, and the Act does
not require it. A different conclusion might follow where a deceased had been in
arrears at death under an instalment agreement that contemplated continuing
performance, as for example, where death is itself stipulated to be a default
performance, as for example, where death is itself stipulated to be a default
event under a financed sale. That is not th e position in this matter . Accordingly,
the defence under s 129 fails.
Reckless credit
[81] The case under ss 80 and 81 of the Act is the most morally arresting, and, given
my conclusion on the in duplum question, it is here that the protection of a
borrower in Ms Rosen’s position must be found if it is to be found at all. The
executors say that the First Applicant ought never to have advanced credit to an
80-year-old woman with no income and monthly expenses of about R4 500,
whose only conceivable source of repayment was the realisation of her home
after her death.
[82] The elderly homeowner, asset -rich and income- poor, is a paradigm of
vulnerability under consumer-protection law, and this Division has been astute to
protect such persons, particularly in matters affecting the home. A reckless-credit
defence of this kind is not to be brushed aside.
[83] But the test under the Act is a particular one. Section 81(2) prohibits the entry
into a credit agreement without first taking reasonable steps to assess the
consumer’s general understanding and appreciation of the risks, costs and
obligations of the proposed agreement, the consumer’s debt repayment history,
and the consumer’s existing financial means, prospects and obligations. An
agreement is reckless under s 80 if that assessment was not made, or if, having
been made, it showed that the consumer did not understand the agreement or
would be rendered over -indebted, and the credit was nonetheless granted. The
enquiry is into the adequacy of the assessment, proportionate to the agreement,
and not into whether, with hindsight, the credit was advisable.
[84] The proportionality of the assessment to the agreement matters here. This was
not an instalment agreement and required no monthly payment, so the
consumer’s capacity to service instalments from income, the usual concern of an
affordability assessment, was not the relevant measure. The relevant measure
was whether the security would, on a prudent forecast, discharge the Settlement
was whether the security would, on a prudent forecast, discharge the Settlement
Value at the Repayment Event, and whether the consumer understood how the
Settlement Value would accumulate against her home.
[85] On the evidence, the First Applicant made an assessment proportionate to the
product. It obtained a contemporaneous valuation. It engaged an independent
and accredited financial adviser, who recommended the loan. It applied a loan-to-
value ratio of about 25%, leaving a substantial equity margin against the
accumulation of interest over the borrower’s expected lifetime. And it completed a
Needs Analysis and Borrower Declaration recording Ms Rosen’s circumstances,
signed by her and counter -signed by the adviser. That is not a perfunctory
process, and it engages each of the matters s 81(2) requires to be assessed.
The executors say that the adviser endorsed the product rather than warning
against it, and that his involvement is, for that reason, of little value. The
submission mistakes what s 81(2) requires. The section directs the enquiry to the
consumer’s understanding and appreciation of the risks and costs, to her
repayment history, and to her means and obligations. It does not require that
independent advice take the form of a recommendation to decline. The adviser’s
function was to ensure that Ms Rosen understood the product and how the
Settlement Value would grow against her home, and, on the record, he
discharged it.
[86] The product was structured to meet Ms Rosen’s position rather than to ignore it.
It provided funds against her sole substantial asset without requiring the monthly
servicing she plainly could not have managed. She made the choice with
independent advice and disclosure of how the Settlement Value would grow. The
autonomy of an elderly consumer is not absolute, but neither is it nothing; where
the credit provider has discharged the obligations imposed by s 81, the Act
respects the consumer’s choice. The asses sment that s 81 requires is
preventive, and is directed to the risk the product in fact presents. For a loan of
this kind, the risk was whether the security would, on a prudent forecast, meet
this kind, the risk was whether the security would, on a prudent forecast, meet
the Settlement Value when it fell due. On this record, the forecast held. The
property exceeds the death- date balance by a substantial margin on the
applicants’ own valuation, and by a larger one on the municipal valuation, so that
the security has met the debt and left meaningful equity in the estate. The
contention that the credit was reckless because the debt would devour the home
is not borne out where the home has absorbed it, and more remains. The
defence of reckless credit, on this record, is not made out. I add that nothing in
this conclusion should be taken as an endorsement of equity -release lending to
the elderly as a class. Each agreement must be measured against ss 80 and 81
on its own facts.
The dispute-resolution clause
[87] Clause 30 of the agreement provides that, after a dispute is referred to the First
Applicant, an unresolved dispute may be referred to conciliation, mediation, or
arbitration. The clause is permissive. It does not erect a precondition to litigation.
[88] Even if it were otherwise, the executors have not sought a stay. They filed an
answering affidavit, launched a counter -application, took interlocutory steps and
engaged the merits. Any right to insist on alternative dispute resolution was
waived by their election to litigate.
[89] The defence fails.
The Administration of Estates Act
[90] The executors’ final substantive defence is that the First Applicant ought to have
followed the claims procedure under the Administration of Estates Act before
suing. That is answered by Nedbank Ltd v Steyn and Others 2016 (2) SA 416
(SCA), in which the SCA held that there is no provision in that Act that can be
construed as depriving a creditor of its common- law right to enforce a claim by
action against the executor of a deceased estate. The statutory claims procedure
does not oust that right.
[91] The defence fails.
Rule 46A and the reserve price
[92] Rule 46A governs the execution of immovable property that is the primary
residence of a judgment debtor. It gives procedural effect to the constitutional
concern, recognised in Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140
(CC) and Gundwana v Steko Development CC 2011 (3) SA 608 (CC), that
judicial oversight should attend the loss of a home, an interest grounded in s 26
of the Constitution. Where the residence is occupied not by the deceased
borrower but by an heir who has lived there for many years, the s 26 interest is
engaged in that occupier, and the court must take it into account.
[93] The first respondent’s evidence, not seriously contested by the time the matter
reached me, is that he has lived at the property since about 2000 to care for his
mother and that it is his primary residence. Rule 46A thus applies.
[94] The applicants did not bring a Rule 46A application together with the main
application. That was a material shortcoming. Absa Bank Ltd v Mokebe and
Related Cases 2018 (6) SA 492 (GJ) holds that, where a money judgment and
an order declaring a primary residence executable are sought, the applications
should ordinarily be brought and heard together, so that the court may weigh the
whole picture. The omission is undesirable, but it is not fatal where the composite
application has since been brought and heard with the main application, as has
happened here, and where the executors have shown no prejudice that an order
as to costs cannot answer.
[95] Rule 46A(9)(b) requires the court, in setting a reserve, to take account of the
market value of the property, the amounts owing in rates and under registered
bonds, any equity that may be realised, the interests of the judgment debtor and
other occupiers, and the risk that, without a reserve, the property may be sold for
substantially less than its worth.
[96] The applicants propose R2 800 000, as per their valuer’s report. The executors
propose R3 760 000 on the municipal valuation. The municipal figure is
indicative, drawn from the rates roll, while the valuer’s report is a market estimate
prepared for litigation. Each has its limits. The 2007 valuation of R1 200 000 is of
little present help, though the substantial appreciation of Sea Point values since
then is not in dispute.
then is not in dispute.
[97] The judgment debt is in the order of R1,32 million in capital and pre- death
interest, with post-death interest subject to the cap I have described. According to
the applicants’ valuation, the equity margin over the debt is about R1,5 million,
while according to the municipal valuation, it is closer to R2,4 million. There is no
evidence of significant rates in arrears. The first respondent has occupied the
property for more than two decades, has no alternative accommodation on
record, and has no apparent means of redeeming the bond. These features tell
against a reserve at the lower end, which would expose the occupier to
disproportionate prejudice for little corresponding benefit to the estate or the
creditor. One must also consider that forced sale values are generally discounted
against the asset’s true value.
[98] Weighing these matters, including the fact that there is a forced sale, I set the
reserve at R3 200 000. That figure preserves a meaningful equity margin for the
estate over the judgment debt while protecting the first respondent against a sale
at an undervalue. If the reserve is not achieved, Rule 46A(9)(c) to (e) regulates
what follows. The Sheriff must report to the court, and a further order may be
sought. The oversight contemplated by the rule is not spent by this order. The
property is declared specially executable, with a reserve price of R3 200 000.
Costs
[99] Costs are at the court's discretion, ordinarily following the result. Where litigation
is fragmented, where the parties enjoy mixed success, or where a party’s
conduct has caused wasted costs, that principle may be adjusted.
[100] Here, the applicants have succeeded on the main relief, the intervention, and
most of the defences raised against them, including the central dispute over the
in duplum rule. The executors have succeeded in part. The post -death interest is
capped under s 103(5); they have obtained a higher reserve than the applicants
proposed, and condonation has been granted on terms. The applicants’ initial
non-disclosure of the cession and their failure to bring a Rule 46A application at
non-disclosure of the cession and their failure to bring a Rule 46A application at
the outset contributed materially to the fragmentation and the postponements.
The executors’ ill -conceived application to compel, and their breach of the
timetable, generated unnecessary expense. So too did the cession point. It was
pressed by a note delivered after argument had closed and after the applicants
had presented their case, and it then failed. The wasted costs it occasioned must
fall on the executors, and the manner of its raising warrants the attorney -client
scale.
[101] Under Uniform Rule 67A, the court must fix the scale of costs. The matter has
been substantial, and the issues warranted senior representation. The
appropriate scale for the main application is Scale B.
[102] The applications for costs de bonis propriis , advanced on both sides, fail. The
threshold is high, requiring a substantial departure from the standard expected of
a practitioner. The applicants’ errors of non-disclosure and procedure were errors
of judgment, which they corrected. The executors’ attempt to proceed without
proper service on the SPV was, on the Sheriff’s return, an unsuccessful step
rather than an abuse. Neither meets the threshold.
[103] The orders that follow seek to reflect these considerations without descending
into an impractical apportionment.
Order
[104] In the result, I make the following order.
1. The application by Seniors Finance Security SPV (Pty) Ltd to intervene as
Second Applicant is granted. The combined founding affidavit dated 28
November 2025 and the replying affidavit dated 26 February 2026 stand as its
papers.
2. Condonation for the late delivery of the executors’ answering affidavit in the Rule
46A and intervention applications is granted. The executors, in their
representative capacity, are to pay the costs of the condonation application on
the attorney-and-client scale.
3. The executors’ application to compel compliance with the Rule 35(12) notice is
dismissed. The executors, in their representative capacity, are to pay the costs of
that application on Scale B.
4. The respondents’ objection to the First Applicant’s standing to enforce the debt,
founded on the cession of the mortgage bond, is dismissed.
5. It is declared that the estate of the late Helen Rosen is indebted to the First
Applicant in the Settlement Value as at 25 August 2022 in the sum of R1 322
223,32, as reflected in the certificate of balance annexed to the applicants’ draft
order.
6. Interest is payable on the sum in paragraph 5 at the rate of prime plus 1,95% per
annum, calculated daily and compounded monthly, from 25 August 2022 to the
date of final payment, subject to the following.
(a) The aggregate of interest and the charges contemplated in s 101(1)(b) to (g)
of the Act accruing after 25 August 2022 shall not exceed the unpaid
balance of the principal debt as at that date, being the amount deferred
under the agreement together with the value of any item contemplated in s
102 of the Act, recorded in the certificate of balance as R300 000, and not
the closing balance reflected in that certificate.
(b) The common- law in duplum rule applies to the post -death period without
interruption by the institution or pendency of these proceedings.
(c) Upon the granting of this judgment, the resulting judgment debt constitutes
a new principal sum, on which interest runs afresh at the rate aforesaid from
the date of this order, the common- law in duplum rule thereafter operating
against that new principal.
7. If a dispute arises as to the calculation of interest under paragraph 6, either party
may apply on the same papers, supplemented as necessary, for its
determination. That may include a referral to oral evidence under Uniform Rule
6(5)(g) or, with the consent of both parties, to a referee under s 38 of the
Superior Courts Act 10 of 2013.
8. The counter -application for cancellation of Mortgage Bond No B17[ … ] is
dismissed.
9. The immovable property described as Sections 1 and 3, S [… ] B[…] Road No
[…] , Sea Point East, Cape Town, held under Deeds of Transfer ST1[ …] and
ST1[…] , and encumbered by Mortgage Bond No B17[ …] in favour of the Second
Applicant, is declared specially executable.
10. A reserve price of R3 200 000 is set for any sale in execution of the property.
11. The executors, in their representative capacity, are to pay 70% of the applicants’
costs in the main, intervention and Rule 46A applications on Scale B, save where
costs have otherwise been ordered. Such costs include the costs of one counsel.
12. The applicants, jointly and severally, are to pay 30% of the executors’ costs in the
main and Rule 46A applications on Scale A, save where costs have otherwise
been ordered.
13. The executors, in their representative capacity, are to pay the costs occasioned
by the raising of the cession point, on the attorney and client scale.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Applicant: Adv Nadeem Ali
Instructed by: Hunts (Inc Borkums) Attorneys
For Respondent: Adv Brendan Atkins
Instructed by: Jones Attorneys