Mabaso and Another v Nedbank Limited (010362/2024) [2024] ZAGPPHC 99 (7 February 2024)

Mabaso and Another v Nedbank Limited (010362/2024) [2024] ZAGPPHC 99 (7 February 2024)

The applicants have not disputed the order declaring the property executable and do not seek rescission or appeal. Their inability to pay the arrears or even 50% thereof, coupled with the absence of certainty regarding future payment, means no case is made out for the exercise of the court's discretion under Rule 45A. The respondent complied with the National Credit Act, and the applicants' misfortune does not justify a stay of execution. Accordingly, the application is dismissed, and costs are awarded on an attorney and client scale as provided for in the mortgage bond.

Citation
[2024] ZAGPPHC 99
Parties
Applicant: Nkomu Daniel Mabaso; Applicant: Mkateko Gladness Mabaso; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 February 2024
Case Number
010362/2024
Procedural Posture
Stay Application / Urgent Application for Stay of Sale in Execution
Outcome
Application dismissed with costs on attorney and client scale.
Judges
E van der Schyff
Legal Topics
Stay of Execution, Mortgage Bond Enforcement, Attorney and Client Costs, National Credit Act Compliance
Civil Procedure Banking and Finance Stay of Execution Mortgage Bond Enforcement Attorney and Client Costs National Credit Act Compliance

Case Brief

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Parties

Nkomu Daniel Mabaso

Applicant

Mkateko Gladness Mabaso

Applicant

Nedbank Limited

Respondent

Procedural Posture

Stay Application / Urgent Application for Stay of Sale in Execution

Legal Issues

  1. 1 Whether the sale in execution of the applicants' primary residence should be stayed pending anticipated payment by the first applicant.
  2. 2 Whether the applicants have made out a case for the exercise of the court's discretion under Rule 45A to suspend execution.
  3. 3 Whether costs should be awarded on an attorney and client scale.

Ratio Decidendi

The applicants have not disputed the order declaring the property executable and do not seek rescission or appeal. Their inability to pay the arrears or even 50% thereof, coupled with the absence of certainty regarding future payment, means no case is made out for the exercise of the court's discretion under Rule 45A. The respondent complied with the National Credit Act, and the applicants' misfortune does not justify a stay of execution. Accordingly, the application is dismissed, and costs are awarded on an attorney and client scale as provided for in the mortgage bond.

Court Disposition

Application dismissed with costs on attorney and client scale.

Orders

  • The application is dismissed with attorney and client costs.