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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, MIDDELBURG
(LOCAL SEAT)
CASE NO: 4708/2018
In the matter between:
ABSA BANK LIMITED PLAINTIFF/APPLICANT
and
TENANE CHARLES MAKOLA DEFENDANT/RESPONDENT
___________________________________________________________________________
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES
………………………………. ………………………..
SIGNATURE DATE
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JUDGMENT
___________________________________________________________________________
BRAUCKMANN AJ
INTRODUCTION
[1] This is an application for summary judgment launched prior to the
amendments of the rules of this court which came into operation on 1
July 2019. This summary judgment application was duly opposed and
an opposing affidavit was filed by the respondent. The application
was postponed, and case managed to the opposed roll, after which
the applicant launched a separate application as contemplated in
terms of Rule 46, read with Rule 46A, of the Uniform Rules of this court
(The Rules). The respondent is opposing both applications.
[2] The application for summary judgment was initially enrolled to be
heard in this court on 15 April 2019. The reason for the postponement
was that the court required heads of argument to be submitted by the
parties as to whether the court could entertain the application for
summary judgment without the necessary information required in terms
of Rule 46A being placed before the court. At the stage that the
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application for summary judgment was launched, and was to be
heard for the first time, this court was still functioning as a circuit court
of the Gauteng Division Pretoria. A full bench of the Gauteng Local
Division, Johannesburg, handed down the judgment in Absa Limited vs
Mokebe, case no 00612/2018 which held that the court could not
entertain applications for monetary judgment separate from the
declaration of fixed property executable.
[3] This triggered the applicant’s application in terms of Rule 46A.
[4] The applicant’s case, in terms of its particulars of claim, is that the
applicant and respondent agreed that the applicant would provide
the respondent with a private bank facility. In terms of the agreement
the following would apply:
4.1 The applicant made available to the defendant a facility
amount of R1 300 000.00;
4.2 The facility amount was provided in account number […],
together with which the respondent had to operate a separate
transactional account with the applicant;
4.3 The facility account will be utilised to ensure that the minimum
balance is maintained on the transactional account. This entails
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that the applicant will, insofar as necessary, sweep monies from
the facility account to the transactional account;
4.4 The facility agreement stipulated that minimum monthly
instalments of R10 473.00 was repayable in respect of the facility
account agreement.
4.5 As security for the indebtedness incurred in terms of the facility
agreement, and in terms of the provisions of the facility
agreement, the Respondent caused a mortgage bond to be
registered in favour of the Applicant over certain immovable
property. The mortgage bond agreement specifically contained
a clause stipulating that a certificate of indebtedness signed by
a manager will serve as prima facie proof of the indebtedness
amount due.
4.6 The Respondent defaulted with the terms of the facility
agreement, in that the Respondent failed to ensure that the
minimum monthly instalment amount is paid alternatively caused
the facility amount to become in excess of maximum available
amount.
4.7 Consequently, the Applicant commenced enforcement steps
with the dispatch of a notice as contemplated in terms of
Section 129 of the National Credit Act, 34 of 2005 (hereinafter
referred to as “the NCA”). There has been compliance with the
pre-enforcement provisions of the NCA. The Respondent does
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not take issue with the manner in which the said notice was
dispatched.
4.8 No response as contemplated in terms of the NCA was
forthcoming. Consequently, the main action was instituted. The
Respondent entered an appearance to defend, on 19
December 2018, in response to which the present application for
summary judgment was delivered on 14 January 2019 (14 court
days later). There has been compliance with the procedural
requirements of Rule 32.
INSTITUTION OF SEPARATE APPLICATION IN TERMS OF RULE 46 AND 46A OF THE
RULES
[5] Before the court heard arguments in this regard the applicant’s
counsel Adv. Markram-Jooste, and Adv. Cilliers on behalf of
respondent, agreed that the double-barrelled procedure adopted by
the applicant in this matter will not be objected to by the respondent. I
am of the opinion that the agreement is good in law having regard to
the unreported judgment of Van Eeden AJ in Absa Bank Limited v
Sawyer1 where the court stated:
‘13. Mr Scott’s submission correctly identified an uneasiness between
action procedure and a subsequent opposed application for summary
1 (2018/17056) [2018] ZAGPJHC 662 (14 December 2018) par 13-16.
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judgment on the one hand, and the provisions of rule 46A on the other.
A plaintiff is fully within its rights to pursue an application for the money
judgment and the order of executability in terms of rule 32, but rule 46A
requires an application on notice of motion for the order of
executability substantially in accordance with Form 2A of Schedule 1
(rule 46A(3)(a)). In addition, the Practice Manual (Gauteng
Johannesburg) requires the chapter 10.17 affidavit.
14. In my view the uneasiness is more apparent than real. A plaintiff
pleading its cause of action in a combined summons is compelled to
plead both circumstances entitling it to the money judgment and
circumstances entitling it to an order of executability. Although the
order of executability is ancillary to the money judgment, the latter
relief forms an integral part of the cause of action.[2] It follows that
when summary judgment is applied for and the cause of action is
verified, the deponent verifies both the money judgment and the order
of executability. The chapter 10.17 affidavit is a separate affidavit not
falling foul of rule 32, which supports the relief sought in respect of
executability. A court is eventually faced with a hybrid procedure
requiring adherence to rule 32, rule 46A and the Practice Manual.
15. I do not read rule 46A as excluding a plaintiff’s right to apply for
summary judgment, nor that the plaintiff must institute a further
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application under rule 46A in order to follow Form 2A. In my view the
summary judgement application and affidavit filed in compliance with
chapter 10.17 constitute substantial compliance by the plaintiff of its
obligations contained in rule 46A. Together they allow the court to
discharge its duties imposed by rule 46A and to strike a balance
between the competing interests of the plaintiff and defendant in a
matter where the executability of a primary residence is at stake. In this
matter the defendant also availed herself of the opportunity to place a
supplementary affidavit before court after receipt of the chapter 10.17
affidavit. In my view nothing would be achieved by insisting that the
plaintiff should follow the motion procedure prescribed by rule 46A. All
the information required by rule 46A is already before court.
16. In the premises I find that the plaintiff was fully entitled to apply for
both orders in summary judgment proceedings in terms of rule 32. The
summary judgment application, read with the affidavit filed in terms of
chapter 10.17, constitute substantial compliance with the provisions of
rule 46A. Rule 46A does not exclude action proceedings for an order
declaring a primary residential property executable, but the
requirements of rule 46A must still be complied with before the primary
residence of the defendant can be declared executable’.
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[6] This was supported in the decision of Changing Tides 17 (Pty) Ltd NO v
Rademeyer and Another2
“[18] The court in Sawyer found that the plaintiff in that matter was
fully entitled to apply for both orders in summary judgment
proceedings in terms of Rule 32. I am in agreement with this
judgment. The summary judgment application, read with the
affidavit filed in terms of chapter 10.17 constitute substantial
compliance with the provisions of Rule 46A. The rules exist for the
court, not the court for the rules. The further affidavit only deals
with execution and not with the money judgment.
[19] Courts should not be bound inflexibly by rules of procedure
unless the language clearly necessitates this. The rules are not
intended to be inflexible; where it is necessary to relax them in
order to do justice, it is competent for the court to do so;
otherwise the court would become the slave of rules designed
and intended to facilitate its task. The rules should not be
interpreted and applied in a formalistic manner that fails to take
these objects into account.
[20] In short, in a summary judgment application a court is not only
entitled but also obliged to consider the Rule 46A application
and accompanying affidavit to determine whether the order in
2 (1911/2019) [2019] ZAGPPHC 165 (31 May 2019) par 18 and 19.
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the summary judgment application should include an order to
declare the immovable property executable”.
[7] I accordingly find that the said judgment constitutes a good law and
that both applications can be heard simultaneously.
[8] The respondent raised various points in limine which, by the
respondent’s counsel own admission, does not constitutes points in
limine but actually defences that goes to the merits of the matter.
[9] Respondent’s counsel submitted that he will persist with the defence
that the respondent has a bona fide defence. It appeared that the
respondent conceded that the balance of the defences raised is not
good in law alternatively does not constitute points in limine, and was
accordingly abandoned.
GENERAL REMARKS REGARDING APPLICATIONS FOR SUMMARY JUDGMENT
[10] It is trite that a defendant/respondent in summary judgment
applications is required to fully disclose the nature and grounds of its
defence and the material facts it relies upon.
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[11] In Breytenbach v Fiat SA (Edms) Bpk3 it was decided that a defendant
cannot approach the court with bold, vade and sketchy defences.
[12] Summary judgment procedure is not intended to deprive a defendant
with a trialable issue or a sustainable defence of his/her day in court. In
Joob-Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture4
it was held that:
“[32] The rationale for summary judgment proceedings is impeccable.
The procedure is not intended to deprive a defendant with a
triable issue or a sustainable defence of her/his day in court.
After almost a century of successful application in our courts,
summary judgment proceedings can hardly continue to be
described as extraordinary. Our courts, both of first instance and
at appellate level, have during that time rightly been trusted to
ensure that a defendant with a triable issue is not shut out. In the
Maharaj case at 425G-426E, Corbett JA, was keen to ensure first,
an examination of whether there has been sufficient disclosure
by a defendant of the nature and grounds of his defence and
the facts upon which it is founded. The second consideration is
that the defence so disclosed must be both bona fide and good
in law. [Own emphasis]. A court which is satisfied that this
threshold has been crossed is then bound to refuse summary
3 1976(2) SA 226 (T) at 229 F-H. 4 2009(5) SA 1(SCA) par 31-33.
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judgment. Corbett JA also warned against requiring of a
defendant the precision apposite to pleadings. However, the
learned judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.
[33] Having regard to its purpose and its proper application,
summary judgment proceedings only hold terrors and are
‘drastic’ for a defendant who has no defence. Perhaps the time
has come to discard these labels and to concentrate rather on
the proper application of the rule, as set out with customary
clarity and elegance by Corbett JA in the Maharaj case at
425G-426E.” (Own emphasis).
[13] As dealt with in argument the only defence persisted with by the
respondent was that he had a bona fide defence. That is in respect of
the application for monetary judgment.
[14] The defendant/respondent stated that upon reading of the applicant’s
combined summons and application for summary judgment the
plaintiff/applicant neglected to set out comprehensively a statement
of account in support of his claim as contained in the notice of motion
and further that the plaintiff has failed to take the court into his
confidence.
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[15] The plaintiff refers to the facility letter attached to plaintiff’s particulars
of claim. He stated that the mere certificate of indebtedness could
not suffice for purposes of summary judgment. It was also, according
to the respondent, not agreed that such a certificate of balance
would provide prima facie proof of the respondent’s indebtedness,
losing sight of the content of the bond registered over the property.
[16] The respondent’s main complaint is that the applicant unilaterally
closed the accounts of the defendant which accounts were meant to
service the ABSA private 1 banking facility as was a requirement under
the agreement between the applicant and the respondent for that
purpose. The respondent, so goes the argument, as a result of the
closure of the account, was prejudiced as the plaintiff/applicant has
breached its own agreement with the defendant, and the defendant
is accordingly unable to verify the correct amount outstanding under
the agreement. According to the respondent, attempts to reopen the
aforesaid accounts were unsuccessful and no response was
forthcoming from the applicant.
[17] The respondent, in this regard, allege and stated that due to the
closure of the account by the applicant, the applicant made
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performance by the respondent impossible. Respondent states that
the respondent, after closure of the accounts could not pay his
instalments of at least R10 473.00 as agreed with the respondent. The
respondent’s only defence to the merits, which Mr Cilliers on behalf of
the respondent alleges is a good defence in law, is summed up in
paragraph 8.7 of the opposing affidavit to the summary judgment
application. In the paragraph the respondent states:
“The minimum monthly instalments of not less than R10 473.00 cannot
be debited due to the plaintiff’s conduct (closure of the accounts).
Further, the closing of the facility by the plaintiff is aimed at precluding
defendant from repaying the monthly instalments and for the plaintiff
to proceed to foreclose”. (Own emphasis).
During argument, and when I engaged with counsel for the
respondent, he could not deny that the plaintiff was entitled, upon a
breach of the agreement between applicant and respondent, to rely
on the breached clause contained in the summons. In terms of clause
13 of the facility agreement it was agreed that the respondent will be
in default under the agreement if he did not pay any amount payable
under this agreement on due date and further, in terms of clause 14 of
the agreement it was agreed that if the respondent were in default,
the applicant may refuse to advance any amount borrowed but not
paid out at the time of default.
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[18] If the respondent is in default notice may be given in terms of the
National Credit Act 34 of 2005(“The NCA”) (Section 1-9) thereof of the
respondents rights in terms of the said sections (1-9 and 130) of the NCA
and thereafter, if the respondent remains in default, start with
proceedings against the respondent to pay all amounts due under the
agreement and to exercise its rights under the covering mortgage
bond. The applicant will also be entitled to take steps to realise any
asset pledged or hypothecated under the bond registered over the
respondent’s fixed property.
[19] The respondent, dealing with the defence of a denial of the
indebtedness and the respondent’s bona fide defence, denies that
applicant set out properly what is required in law in respect of its cause
of action and indebtedness. This is incorrect.
[20] It is significant to note that the respondent, in its opposing affidavit,
blames the applicant for not providing him with statements. The
respondent does not deny the conclusion of the facility agreement nor
the registration, in terms of the facility agreement, of the mortgage
bond over his fixed property. The mortgage bond agreement contains
the so-called “certificate of balance clause” which provides that a
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certificate of balance will constitute prima facie proof of the
indebtedness of the amount which is claimed5.
[21] In as far as the breach of the agreement is concerned, the fact that
the agreement was breached by the respondent is stated in the
section 129 and 130 of the National Credit Act letter addressed to the
respondent, attached to the particulars of claim. In terms of the
particulars of claim it was also alleged that:
“The defendant did not comply with his obligations in terms of the
aforementioned agreement. The amount as mentioned above is due
and payable in terms of the agreement.” The applicant confirmed its
cause of action in its founding affidavit in the summary judgment
application.
Apart from a bald denial no specific facts are contained in the
respondent’s opposing affidavit denying the applicant’s entitlement to
accelerate payment in terms of the agreement.
[22] The amount due was also stated in the applicant’s particulars of claim
and more specifically paragraph 4.2 thereof which states that
R1 320012.46, together with interest at the rate of 9.25%, from 28
November 2018 to date of payment, was indebted to the applicant as
5see clause 9 of the bond agreement
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at 27 November 2017. Annexure B to applicant’s particulars of claim is
a certificate of balance in terms of clause 9 of the bond agreement,
confirming the amount due to applicant.
[23] The applicant certainly does not have to deconstruct the manner in
which a claim amount was constituted in the pleadings if the claim
amount is not placed in dispute. So to the interest rate. Only when a
claim is sufficiently placed in dispute will the applicant be required to
deconstruct and prove the manner in which the claim amount has
been constituted6. The respondent does not place the indebtedness in
dispute. Although the respondent complains about not receiving bank
statements (which he can access on the internet in any way) he does
not provide one piece of evidence that the certificate of balance is
incorrect. Nor does he indicate an error in the calculation or deny that
he stopped paying the instalments due to the applicants.
[24] In NPGS Protection and Security Services CC and Another vs First Rand
Bank Ltd7 it was held that:
“Rule 32(3) of the uniform rules requires an opposing affidavit to
disclose fully the nature and grounds of the defence and the material
facts relied upon therefor. To stave off summary judgment, a
6 F_I Advisers (Edms) Bp ken `n Ander vs Eerste Nasionale Bank van Suidelike Afrika Bpk 1999(1) SA 515 (SCA). 7 (314/2018) [2019] ZASCA 94 (6 June 2019) at par 11 thereof. “
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defendant cannot content him or herself with bald denials, for
example, that it is not clear how the amount claimed was made up.
Something more is required. If a defendant disputes the amount
claimed, he or she should say so and set out a factual basis for such
denial. This could be done by giving examples of payments made by
them which have not been credited to their account”.
[25] I am also of the opinion that, in terms of Rule 35(12) the respondent
could have sought discovery and production of the bank statements
from the applicant. No explanation in its opposing affidavit to this
effect is given nor could his counsel provide an explanation in this
regard.
[26] I fail to understand how the applicant can lament about the closure of
his bank accounts if, as provided for in the agreement with the
respondent, he was in breach of the agreement, and the applicant
was entitled to close his accounts. It has also become trite law in South
Africa that a financial institution may close a client’s account if it so
wants8.
[27] The respondents defence as appears from paragraph 8.7 of his
opposing affidavit implies malice on the part of the applicant. No
8 Annex Distribution (Pty) Ltd and Others vs Bank of Baroda 2018 (1) SA 562 (GB) and Bredenkamp and Others vs Standard Bank of South Africa 2010(4) SA 468 (SCA).
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facts are provided to this court why the applicant would close the
respondent’s account to preclude him from paying his instalments, and
for the plaintiff to proceed with foreclosure. This implies that the
applicant wants to foreclose on the respondent for an ulterior purpose.
One would have expected the respondent to give factual
background as to why the applicant would act in such a mala fide
and irresponsible manner. The respondent’s defence with regards to
the indebtedness is, to say the least, not bona fide, and totally
untenable.
[28] I reject the respondent’s defence implying that the plaintiff was mala
fide in closure of its account.
[29] Having found that the respondent does not have a bona fide defence
and that the balance of the points in limine does not constitutes points
in limine I now turn to the Rule 46 application.
[30] In terms of Rule 46A of the Rules of this Court, certain requirements has
to be complied with by an applicant before this court can order a writ
of execution to be issued by the Registrar of the Court to attach the
respondent’s fixed property, if the fixed property is the respondent’s
primary residence. In opposition to the applicant’s Rule 46 application
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the respondent’s states that his objections to the declaration of
executability are the following:
“1. It is submitted further that the plaintiff would sell the property for
a far too low price in order to hold the defendant accountable
for the remainder of the outstanding balance ostensibly owned.
2. The defendant and all lawful occupiers occupying the property
with permission of the defendant would be left to the streets
whilst the plaintiff would have sold the immovable property for
far too less a price in order to keep the defendant indebted to it.”
[31] In its affidavit opposing summary judgment it also raises, as a “point in
limine” his constitutional right to adequate housing.
[32] He states in the opposing affidavit “for present purposes it is
appropriate to record that I am unable to secure alternative
accommodation for myself and my wife and children should the
immovable property be declared specially executable and
subsequently sold by the plaintiff, notwithstanding the immense upset
and trauma that it could cause to my wife and children”.
[33] He also alleges that he is currently over indebted without giving any
particulars of the over indebtedness or his income.
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[34] The respondent’s allegations regarding his right to adequate housing,
and the fact that the family will be left destitute and living on the
streets without adequate housing is rejected. The respondent did not
provide sufficient particulars in respect to his right to housing or the
reserve price to be set by this court. In respect of the involvement of a
debtor in the process of determining whether the court should declare
a property executable and set a reserve price the sentiment laid down
in First Rand Bank Limited vs Folscher and Another and Similar Matters9
was recently repeated by the majority ruling of the Supreme Court of
Appeal in the NPGS Protection and Security Services matter. The court
held (in adjudicating the factual matrix, similar to the present matter,
that is a summary judgment application where execution relief was
also sought, that10:
“[55] From this review of the relevant jurisprudence, it is clear that in a
case of an application for default judgment, a court, in its
discretion, needs to ensure that it is possessed with adequate
information to enable it to grant a remedy which complies with
these requirements. In the case of an application for summary
judgment, provided the creditor has complied with the
requirements of rule 46(A), there is an onus on the debtor, at the
very least, to provide the court with information concerning
9 2011(4) 314(GNP) and in Mokebe supra 10 NPGS- supra at paras 55, 63 and 67.
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whether the property is his or her personal residence, whether it is
a primary residence, whether there are other means available to
discharge the debt and whether there is a disproportionality
between the execution and other possible means to exact
payment of the judgment debt.
[63] In the present case this court is asked to find that but one
mention by counsel from the bar in the court below is sufficient to
avoid an order of execution. The summary judgment procedure
enables essential information to be placed before a court to
enable it to fulfil its function in adjudicating on defences raised.
In the present case, extensive facile defences, which were
dressed up as being technically proficient, were the only ones
presented resisting summary judgment. One would have thought
that a business person in the position of the second appellant,
when faced with the loss of his home, would, at the very least,
have expressed his anxiety about the consequences thereof. It is
the one thing that is conspicuously absent from the affidavit.
While it is true that the court below misdirected itself in relation to
whether or not an individual rather than a company was
affected, it is equally clear that the court was unimpressed with
the mere submission from the bar about the loss of a primary
residence without any further information being presented. It was
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clearly seen by the court below as a ruse to escape the
consequences of default. (Own emphasis).
[67] On the facts of this case, the complete failure by the second
appellant to avail himself of rights which were expressly drawn to
his attention in the summons issued by the respondent dictates to
the contrary. It bears repeating that there was a specific prayer
in the summons requesting an order of execution. In imposing an
obligation upon a court in this case when one vague and
unspecified mention of a personal residence without more
suffices as a defence or even a justification for remitting a case
back to the court a quo, would in my view, cause significant
uncertainty, and arguably serious damage to the efficient
provision of credit in the economy.”
[35] The respondent did not provide this court with any reasons why the
property should not be declared specifically executable. He does not
provide the court with his income, his sources of income, the income of
his spouse, his debts or any other reason why he would not be able to
afford alternative accommodation for his family and himself. The
respondent’s ipse dixit that he would be left on the streets is not
sufficient.
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[36] So to the respondent fails to provide this court with any information
regarding the declaration of executability and reserve price to be set
for the property.
[37] The respondent has an onus to prove that his right to adequate
housing as provided for in section 26 of the Constitution will be
disturbed.
[38] When a court exercise judicial oversight to declare the debtors home
executable, the court, where the property sought to be attached is the
primary residence of the judgment debtor must consider all facts as
stated in Rule 46A.
[39] The respondent put his residence up as security for a private banking
account which he utilised for six years. The purpose for which it was
used is not known to the applicant but the said bank accounts are
normally used by individuals who are business men for business
purposes.
[40] As Froneman J, in Gundwana vs Steko Development CC and Nedcor
Bank Limited11 stated:
11 2001(3) SA 608 (CC).
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“It must be accepted that execution in itself is not an odious thing. It is
part and parcel of normal economic life. It is only when there is
disproportionality between the means used in the execution process to
exact payment of the judgment debt, compared to other available
means to attain the same purpose, that alarm bells should start ringing.
If there are no other proportionate means to attain the same end,
execution may not be avoided”.
The respondent is in the best position to advance contentions to fully
inform the court of factors that should be taken into account when the
court considers the facts to declare the property executable in its
judicial oversight role. See Folscher supra at par 41. In this matter the
respondent, after 6 (six) years, owes applicant more than when the
agreement was entered into.
[41] The respondent’s counsel submitted that the court must first order
execution against movable property. That would prevent the
respondent from losing his residence. It can also, once execution
against movables are completed, reduce the indebtedness of the
respondent.
[42] The court would have considered same if the court was made aware
of movable assets belonging to the respondent. The court has no
25
information in this regard and ordering execution against movables
might be a waste of time and money. The court cannot speculate as
to moveable assets that is owned by the respondent.
[43] Respondent simply failed to take this court into his confidence with the
facts surrounding his personal circumstances, that of his family, his
income and his assets.
[44] Therefor the court can only, in exercising its judicial oversight, in this
regard find in favour of the applicant.
[45] To execute against the movable property will in any way not happen
overnight. If the respondent pays the arrears and/or catches up with
his instalments, the agreement will be automatically reinstated and the
sale in execution cancelled. The respondent is therefore not left
remediless.
[46] In considering the reserved price, the court took note of the valuation
attached to the Rule 46 application. The market value of the property
is indicated to be R1 600 000.00. According to the applicant the
forced sale value is R1 066 666.66 which is less than the outstanding
indebtedness. The outstanding rates and taxes in respect of the
property is a mere R8 831.45.
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[47] I am of the opinion that an amount of R1 430 000.00 should be set as a
reserve price on the property.
[48] I accordingly make the following order:
1. Judgment in favour of the applicant is granted for:
1.1 Payment of the amount of R1 320 012.46;
2. Interest on the amount of R1 320 012.46 at the rate of 9.25% per
annum from 28 November 2018 to date of payment, the said
interest to be calculated and capitalized monthly;
3. That the immovable property knows as:
3.1 Erf […] Witbank Extension 10 Township, Registration Division J.S.,
Mpumalanga Province, measuring 1481 (ONE THOUSAND, FOUR
HUNDRED AND EIGHTY ONE) square meters in extent and is held
by the defendant in terms of Deed of Transfer Nr. T0003860/2013.
4. The Plaintiff/Registrar be authorized to issue a Writ of Execution
against the immovable property referred to in prayer 3 above, to
give effect to the order granted in terms of prayer 3 above.
5. That the immovable property referred to in prayer 3 above be
sold in execution with a reserve price of R1 430 000.00.
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6. That the defendant be ordered to pay the costs of the action
and application.
______________________________
HF BRAUCKMANN
ACTING JUDGE OF THE HIGH COURT
REPRESENTATIVE FOR THE PLAINTIFF: ADV C.J MARKRAM-JOOSTE
INSTRUCTED BY: BIRMANS INCORPORATED
REPRESENTATIVE FOR THE DEFENDANT: ADV J.B CILLIERS
INSTRUCTED BY: MABHENA MADUBANY INC
DATE OF HEARING: 19 NOVEMBER 2019
DATE OF JUDGMENT: 03 December 2019