Absa Bank Limited v Shivambu and Another (41691/2010) [2016] ZAGPJHC 252 (12 September 2016)

Absa Bank Limited v Shivambu and Another (41691/2010) [2016] ZAGPJHC 252 (12 September 2016)

The court found that the applicant, as a major bank, was contractually entitled to seek an order declaring the property executable following default and judgment. The respondent had not made any payments towards the loan for over three years and eight months, and the arrears had grown to more than half the outstanding capital. The respondent's inability to pay the monthly instalments or the arrears indicated that he could not service the debt or rehabilitate the loan. While the court acknowledged the hardship to the respondent and his family, including three minor children, it concluded that the interests of the applicant as a financial institution and the enforceability of mortgage bonds...

Citation
[2016] ZAGPJHC 252
Parties
Applicant: Absa Bank Limited; Respondent: Bruce Shivambu; Respondent: Rudzani Ramovha
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 September 2016
Case Number
41691/2010
Procedural Posture
Civil Application / Application for Order Declaring Property Executable After Default Judgment
Outcome
Order granted declaring the property executable, with execution suspended until 30 November 2016.
Judges
WHG van der Linde
Legal Topics
Declaration of Executability, Mortgage Bond Enforcement, Primary Residence Protection, Default Judgment, Suspension of Execution
Civil Procedure Land and Property Declaration of Executability Mortgage Bond Enforcement Primary Residence Protection Default Judgment Suspension of Execution

Case Brief

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Parties

Absa Bank Limited

Applicant

Bruce Shivambu

Respondent

Rudzani Ramovha

Respondent

Procedural Posture

Civil Application / Application for Order Declaring Property Executable After Default Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to an order declaring the bonded property executable.
  2. 2 Whether the interests of the respondent's family and minor children justify refusing or suspending the order.
  3. 3 Whether the respondent's financial circumstances warrant a suspension of the execution order.

Ratio Decidendi

The court found that the applicant, as a major bank, was contractually entitled to seek an order declaring the property executable following default and judgment. The respondent had not made any payments towards the loan for over three years and eight months, and the arrears had grown to more than half the outstanding capital. The respondent's inability to pay the monthly instalments or the arrears indicated that he could not service the debt or rehabilitate the loan. While the court acknowledged the hardship to the respondent and his family, including three minor children, it concluded that the interests of the applicant as a financial institution and the enforceability of mortgage bonds...

Court Disposition

Order granted declaring the property executable, with execution suspended until 30 November 2016.

Orders

  • The immovable property described as Erf [5240] B. A. E. [...] Township, Registration Division I.R., Province of Gauteng, measuring 266 square metres, held by the first and second respondents under deed of transfer no. T179797/2009, is declared specially executable.
  • The Registrar of the court is authorised to issue a writ of execution.