Absa Bank Limited v Malatji (39791/2016) [2023] ZAGPJHC 945 (27 August 2023)

Absa Bank Limited v Malatji (39791/2016) [2023] ZAGPJHC 945 (27 August 2023)

The respondent breached the mortgage loan agreement and failed to pay the arrears, which have grown significantly over time. Despite being given ample opportunity to present alternative means to satisfy the debt, the respondent did not do so and failed to attend the hearing. The court found that the requirements of...

Source-derived case information.

Citation
[2023] ZAGPJHC 945
Parties
Applicant: Absa Bank Limited; Respondent: Butinyana Loveday Malatji
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 August 2023
Case Number
39791/2016
Procedural Posture
Civil Application / Application for Special Executability Order
Outcome
Application granted; property declared specially executable with reserve price set.
Judges
Ford
Legal Topics
Rule 46a Special Executability, Primary Residence Execution, Reserve Price Setting, Mortgage Enforcement
Civil Procedure Land and Property Rule 46a Special Executability Primary Residence Execution Reserve Price Setting Mortgage Enforcement

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Parties

Absa Bank Limited

Applicant

Butinyana Loveday Malatji

Respondent

Procedural Posture

Civil Application / Application for Special Executability Order

Legal Issues

  1. 1 Whether the applicant is entitled to an order declaring the respondent's primary residence specially executable under Rule 46A.
  2. 2 Whether the court should set a reserve price for the sale in execution of the property.
  3. 3 Whether the respondent has presented any alternative means to satisfy the judgment debt other than execution against his primary residence.

Ratio Decidendi

The respondent breached the mortgage loan agreement and failed to pay the arrears, which have grown significantly over time. Despite being given ample opportunity to present alternative means to satisfy the debt, the respondent did not do so and failed to attend the hearing. The court found that the requirements of Rule 46A were met, including consideration of the respondent's primary residence status and the absence of viable alternatives to execution. The court accepted the property valuations and outstanding charges, calculated a forced sale value, and determined that execution against the property was warranted. In line with Rule 46A and relevant case law, the court set a reserve...

Court Disposition

Application granted; property declared specially executable with reserve price set.

Orders

  • The immovable property described is declared specially executable under Rule 46A for the sum of R669 060.78 plus interest at 10.55% per annum capitalised monthly from 10 September 2016 to date of payment.
  • The property shall be sold in execution at an initial reserve price of R547 147.34.