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[2026] ZAGPJHC 978
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ABSA Home Loans Guarantee Company (Rf) (Pty) Ltd v Gramoney and Another (Leave to Appeal) (2025/101602) [2026] ZAGPJHC 978 (28 August 2026)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number:
2025-101602
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
28
August 2026
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
CaseLines and SAFLII. The date for the handing down is deemed to be
28 August 2026.
LEAVE
TO APPEAL JUDGMENT
MUDAU, J:
Introduction
[1]
The respondents apply for leave to appeal
against the entire judgment and order handed down by this Court on 10
June 2026. In that
judgment, the Court granted a money judgment
against the respondents in the amount of R 1,659,788.54,
declared their immovable
property specially executable in terms of
Uniform Rule of Court 46A, and awarded costs on the
attorney-and-client scale.
[2]
The
respondents, who are self-represented, have filed a notice of
application for leave to appeal together with heads of argument
in
support thereof. The applicant in the main application) has filed
concise heads of argument opposing the application
[1]
.
The applicant has also delivered a Rule 30 application seeking to set
aside the application for leave to appeal as an irregular
step, on
the basis that the respondents have purportedly supported their
application with a founding affidavit, a procedure not
provided for
in the Uniform Rules of Court.
[3]
I deal first with the Rule 30 application,
before turning to the merits of the application for leave to appeal.
The Rule 30
Application
[4]
The applicant contends that the
respondents' application for leave to appeal is irregular in that it
purports to be supported by
a founding affidavit. The applicant
submits that the Uniform Rules of Court do not provide for filing a
founding affidavit in support
of an application for leave to appeal.
The applicant has delivered a notice in terms of rule 30(2)(b) and
subsequently filed a
rule 30 application to set aside the application
for leave to appeal as an irregular step.
[5]
It is correct that the Uniform Rules of
Court do not expressly provide for the filing of a founding affidavit
in support of an application
for leave to appeal. Rule 49(1) provides
for the delivery of a notice of application for leave to appeal, and
the rules do not
contemplate the filing of further affidavits. The
respondents have, however, filed heads of argument in support of
their application,
setting out the grounds on which they rely. The
filing of the heads of argument is proper and in accordance with
practice.
[6]
In the circumstances, I do not consider it
necessary to set aside the application for leave to appeal on this
technical ground.
The application for leave to appeal is properly
before the Court by way of the notice of application and the heads of
argument.
The applicant has not demonstrated any prejudice. The rule
30 application is dismissed. There is no order as to costs in respect
thereof, as the applicant raised a technical point.
The Test for Leave to
Appeal
[7]
Section
17(1)(a) of the Superior Courts Act
[2]
provides that leave to appeal may be granted where the judge is of
the opinion that:
“
(i)
the appeal would have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard...”
[8]
The
test is more stringent than under the previous legislation. The
Supreme Court of Appeal in
MEC
for Health, Eastern Cape v Mkhitha
[3]
stated that:
“
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[4]
[9]
The respondents bear the onus of
demonstrating that the appeal would have reasonable prospects of
success, or that there are compelling
reasons why the appeal should
be heard. I now turn to consider whether the respondents have
discharged that onus.
The Grounds of Appeal
[10]
The respondents advance numerous grounds of
appeal, which may be summarised as follows:
a)
The Court erred in granting an order
declaring the respondents' primary residence specially executable
without properly exercising
judicial oversight as required by rule
46A and section 26 of the Constitution.
b)
The Court failed to conduct a proper
enquiry into all relevant circumstances, including the respondents'
financial position, proportionality,
and whether execution was just
and equitable.
c)
The Court failed to consider less
restrictive measures and erred in granting execution without
establishing that execution was a
measure of last resort.
d)
The Court erred in finding that the
respondent complied with all pre-enforcement procedures, despite the
absence of meaningful engagement
and procedural fairness.
e)
The Court erred in accepting the
certificate of balance as sufficient proof of the quantum of the debt
without proper scrutiny.
f)
The Court erred in concluding that no
bona
fide
disputes of fact existed and
failed to refer the matter to oral evidence or trial.
g)
The Court failed to properly balance the
respondents' constitutional right of access to adequate housing
against the respondent's
rights.
h)
The Court granted an order which is
disproportionate, resulting in severe and irreversible prejudice to
the respondents.
i)
The Court erred in awarding costs on the
attorney and client scale without justification.
Analysis Of the
Grounds of Appeal
The Rule 46A Enquiry
[11]
The
respondents contend that the Court failed to conduct a sufficiently
rigorous enquiry into whether execution against their primary
residence was just and equitable. They rely on
Jaftha
v Schoeman; Van Rooyen v Stoltz
[5]
and
Gundwana
v Steko Development CC
,
[6]
in which the Constitutional Court emphasised the need for substantive
judicial oversight.
[12]
I have carefully reconsidered the record
and the judgment. The respondents, who bear the onus of placing
information before the
Court in opposed proceedings, did not provide
any information about their financial circumstances, income,
expenses, family situation,
or prospects of securing alternative
accommodation. They did not place any evidence before the Court to
suggest that an order of
execution would unjustifiably infringe their
right of access to adequate housing. They did not propose any
alternative arrangement
to bring the payments up to date.
[13]
The judgment of 10 June 2026 expressly
considered all these factors and found that the respondents had
failed to discharge their
onus. The Court correctly observed that the
constitutional right to housing is not an absolute bar to execution;
it requires a
balancing of interests. The respondents had been in
default for over a decade. The property has negative equity. The
respondents
did nothing to place information before the Court that
could tip the balance in their favour.
[14]
Another court would not interfere with
these findings. There is no reasonable prospect of success on this
ground.
Compliance with the
NCA
[15]
The
respondents contend that the Court erred in finding that the
applicant complied with all pre-enforcement procedures, including
the
requirements of sections 129 and 130 of the National Credit Act.
[7]
The respondents suggest that there was no meaningful engagement or
procedural fairness.
[16]
The Court considered this issue in the
judgment. 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 were attached
to the founding papers. The respondents did not respond
to the
notices. They did not refer the matter to a debt counsellor. They did
not apply for debt review. They did not make any arrangement
to bring
the payments up to date.
[17]
The
law is settled that service by prepaid registered post is sufficient
for purposes of section 129.
[8]
.
The requirement is one of delivery, not actual receipt. The
respondents had every opportunity to engage with the respondent and
did not do so. However, there is more. Regarding the merits, they
filed notices to oppose and provided their respective email addresses
for the filing of further documents and processes. There is no
reasonable prospect of success on this ground.
The Certificate of
Balance
[18]
The respondents contend that the Court
erred in accepting the certificate of balance as sufficient proof of
the quantum of the debt.
They submit that the quantum was disputed
and not adequately verified.
[19]
I have carefully considered the record. The
certificate of balance, signed by a duly authorised manager of the
applicant, was produced
in terms of the contractual provisions of the
loan agreement, the indemnity, and the mortgage bond. Those
provisions state that
a certificate signed by a director, officer, or
agent of the respondent shall be
prima
facie
proof of the amount of
indebtedness. The respondents did not challenge the certificate in
their answering papers. They did not
place any evidence before the
Court to suggest that the amount was incorrect. They did not tender
any evidence of payments made
after September 2014.
[20]
The respondents are effectively raising a
dispute on quantum for the first time in an application for leave to
appeal. This is impermissible.
The respondents cannot now be heard to
challenge the quantum when they failed to do so in the main
application. The principle is
well established: a party cannot raise
a new issue on appeal that it did not raise in the court below. There
is no reasonable prospect
of success on this ground.
Disputes of Fact
[21]
The respondents contend that material
disputes of fact should have been referred to oral evidence or trial.
They rely on their denial
of having signed the power of attorney to
register the mortgage bond.
[22]
I have already dealt with this issue in the
main judgment. The respondents admitted this fact in their amended
plea in the action
proceedings. They are estopped from denying it.
The existence and validity of the mortgage bond itself is not
disputed. The bond
is a registered deed and a public document. The
denial of the power of attorney does not create a genuine and
bona
fide
dispute of fact.
[23]
The
respondents' other alleged disputes are bare denials, unsupported by
any evidence. In motion proceedings, a respondent cannot
avoid
judgment by making bare denials that do not raise a real, genuine,
and
bona
fide
dispute.
[9]
. There is no
reasonable prospect of success on this ground.
The Attorney and
Client Costs Order
[24]
The respondents contend that the Court
erred in awarding costs on the attorney-and-client scale without
justification. They submit
that they were self-represented litigants
defending proceedings affecting their constitutional housing rights,
and that the conduct
identified by the Court did not justify punitive
costs despite the agreed scale of costs in the underlying agreement.
[25]
I have reconsidered the costs issue. The
respondents raised technical and procedural defences that lacked
merit. They admitted key
facts in the action proceedings and then
sought to deny them in this application. They caused unnecessary
delay and expense. They
adopted an obstructive approach throughout
the proceedings.
[26]
It
is trite that an attorney and client costs order may be justified
where a party has conducted itself in a vexatious, unreasonable,
or
obstructive manner. The respondents' conduct in this matter falls
within that category. The costs order was justified and part
of the
loan agreement
.
[10]
There is no reasonable prospect of success on this ground.
Whether Another Court
Would Arrive at a Different Conclusion
[27]
The respondents have raised numerous
grounds of appeal. I have carefully considered each ground. The
respondents have not shown
that another court would reach a different
conclusion on any material aspect of the judgment. The grounds of
appeal are without
substance. The respondents are effectively seeking
to relitigate issues that this Court properly decided. There are no
reasonable
prospects of success on appeal.
Compelling Reasons
[28]
The respondents contend that compelling
reasons exist for the appeal to be heard. They submit that the matter
raises important constitutional
and procedural issues concerning the
proper application of rule 46A and the protection of residential
property under section 26
of the Constitution.
[29]
The judgment concerns the execution of a
primary residence and the exercise of judicial discretion under rule
46A. However, the
judgment is consistent with established
constitutional and legal principles. The respondents have not
identified any unresolved
legal question or issue of public
importance warranting leave to appeal. The matter concerns applying
settled law to the particular
facts of this case. There are no
compelling reasons why the appeal should be heard.
The Respondents'
Failure to Place Evidence Before the Court
[30]
Throughout the proceedings, the Respondents
have consistently failed to place any evidence before the Court
regarding their personal
circumstances, financial position, income,
expenses, family situation, prospects of securing alternative
accommodation, or any
other matter that could assist the Court in
balancing the competing interests.
[31]
In
Absa
Bank Ltd v Mokebe and Related Cases
,
[11]
the court emphasised that a debtor who seeks to resist execution
against a primary residence bears an onus to place relevant
information
before the court. The court stated at para 59:
“
If
a debtor fails to place facts before the court despite the
opportunity to do so, the court is bound to determine the matter
without the benefit of the debtor's input.”
[32]
The respondents did nothing to discharge
that onus. They did not respond to the invitations in the founding
affidavit to place such
information before the Court. They did not do
so in their answering papers. They did not do so in their heads of
argument. They
have still not done so in their application for leave
to appeal. The applicants appear to believe that the mere fact that
the property
is their primary residence is sufficient to prevent
execution. That belief is incorrect in law.
[33]
The respondents' failure to place evidence
before the Court is not a basis for granting leave to appeal. It is a
reason to refuse
it. The respondents have been afforded ample
opportunity to place their case before the Court, and they have
failed to do so.
The Prolonged Default
[34]
One further consideration is relevant. The
respondents last made a payment on the mortgage loan in September
2014. That is over
eleven years ago. They have been in default for
more than a decade. They have made no attempt to pay the debt, engage
with the
credit provider, apply for debt review, or propose any
alternative arrangement.
[35]
The respondents have continued to occupy
the property while making no payments. They have effectively been
living in the property
for free while the debt has continued to
accumulate and the interest has continued to accrue. The applicant
has been denied the
use of its security for over a decade.
[36]
In those circumstances, the respondents
cannot complain that the Court granted execution against the
property. The respondents have
had every opportunity to regularise
their position and have failed to do so. The order of the Court is
just and equitable in the
circumstances.
Conclusion
[37]
The application for leave to appeal is
without merit. The respondents have failed to show that the appeal
has a reasonable prospect
of success. They have also failed to show
compelling reasons to hear the appeal. The respondents are
effectively seeking to relitigate
issues that this Court properly
decided. The application is an abuse of process and serves only to
delay the inevitable.
[38]
This matter has been before the courts for
many years. The respondents have repeatedly sought to delay the
proceedings. They opposed
the action proceedings on what the
applicant describes as frivolous and vexatious grounds. They then
opposed the motion proceedings
on technical and procedural grounds
that were without merit. They have now brought an application for
leave to appeal that is devoid
of merit. The respondents appear to be
engaged in a strategy of delay.
[39]
The time has come to bring finality to this
matter. The respondents have been in default for over eleven years.
They have had every
opportunity to place their case before the courts
and have failed to do so. The judgment of 10 June 2026 was properly
granted.
There is no basis for the grant of leave to appeal.
Costs
[40]
The applicant seeks costs on the
attorney-and-client scale, supported by the loan agreement. The
respondents' conduct in bringing
this application for leave to
appeal, in circumstances where there are no reasonable prospects of
success and where the application
is devoid of merit, warrants a
punitive costs order. The respondents have persisted in their
obstructive and unreasonable conduct.
The interests of justice
require that they bear the costs of this application on a punitive
scale.
Order
[41]
In the premises, I make the following
order:
1.
The applicant's Rule 30 application is
dismissed, with no order as to costs.
2.
The respondents' application for leave to
appeal is dismissed.
3.
The respondents are ordered to pay the
costs of this application on the attorney and client scale, jointly
and severally, the one
paying the other to be absolved, including the
costs of counsel where employed.
T P MUDAU
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
APPEARANCES
For
the Applicant:
Adv M De Oliveira
Instructed
by:
Lowndes Dlamini Attorneys
For
the 1
st
and 2
nd
Respondents:
Self Represented
Mr
Parmesan Thangaveloo Gramoney
Ms
Sindha Gramoney
Date
of Hearing:
21 August 2026
Date of
Judgment:
28 August 2026
[1]
The
citation of the parties have been maintained for convenience.
[2]
10
of 2013.
[3]
[2016]
ZASCA 176.
[4]
Id
at para 17.
[5]
[2004]
ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC).
[6]
[2011]
ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC).
[7]
34
of 2005.
[8]
See
Absa
Bank Ltd v Mkhize and Another, Absa Bank Ltd v Chetty, Absa Bank Ltd
v Mlipha
[2013] ZASCA 139; 2014 (5) SA 16; [2014] 1 All SA 1 (SCA).
[9]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[10]
See
Public
Protector v South African Reserve Bank
[2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC).
[11]
2018
(6) SA 492
(GJ).