Nedbank Limited v Malusi (18276/2021) [2023] ZAGPJHC 444 (9 May 2023)

Nedbank Limited v Malusi (18276/2021) [2023] ZAGPJHC 444 (9 May 2023)

The court found that the defendant breached the loan agreement by failing to pay instalments for over a year, resulting in substantial arrears. The defendant no longer resides at the property, which is now an investment asset, and has no alternative means to satisfy the debt other than execution against the property. The plaintiff is entitled to a money judgment for the outstanding balance, interest at the variable rate specified in the agreement, and enforcement costs on the attorney and own client scale. The property is declared specially executable, and a reserve price is set for the sale in execution. The defendant retains the right to reinstate the agreement before cancellation or...

Citation
[2023] ZAGPJHC 444
Parties
Plaintiff: Nedbank Limited; Defendant: Malusi, Precious Lumka
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 May 2023
Case Number
18276/2021
Procedural Posture
Default Judgment / Final Judgment
Outcome
Judgment granted in favour of the plaintiff for payment of the outstanding loan amount, interest at the variable rate, declaration of special executability of the property, setting of a reserve price, and costs on the attorney and own client scale.
Judges
RJ Moultrie
Legal Topics
Default Judgment, Special Executability, Variable Interest Rate, Sectional Title Property, National Credit Act, Enforcement Costs
Civil Procedure Banking and Finance Land and Property Default Judgment Special Executability Variable Interest Rate Sectional Title Property National Credit Act +1 more

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Parties

Nedbank Limited

Plaintiff

Malusi, Precious Lumka

Defendant

Procedural Posture

Default Judgment / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to a default money judgment for amounts due under the loan agreement.
  2. 2 Whether the property held as security should be declared specially executable.
  3. 3 What interest rate should apply to the judgment debt given the variable rate in the loan agreement.

Ratio Decidendi

The court found that the defendant breached the loan agreement by failing to pay instalments for over a year, resulting in substantial arrears. The defendant no longer resides at the property, which is now an investment asset, and has no alternative means to satisfy the debt other than execution against the property. The plaintiff is entitled to a money judgment for the outstanding balance, interest at the variable rate specified in the agreement, and enforcement costs on the attorney and own client scale. The property is declared specially executable, and a reserve price is set for the sale in execution. The defendant retains the right to reinstate the agreement before cancellation or...

Court Disposition

Judgment granted in favour of the plaintiff for payment of the outstanding loan amount, interest at the variable rate, declaration of special executability of the property, setting of a reserve price, and costs on the attorney and own client scale.

Orders

  • Payment of the sum of R1,976,514.64.
  • Interest on the above amount at the plaintiff's publicly quoted prime lending rate from time to time plus 1.50% per annum from 1 January 2023 to date of payment.