Nedbank Limited v Mortinson (4183/05) [2005] ZAGPHC 85; [2006] 2 All SA 506 (W); 2005 (6) SA 462 (W) (23 August 2005)

Nedbank Limited v Mortinson (4183/05) [2005] ZAGPHC 85; [2006] 2 All SA 506 (W); 2005 (6) SA 462 (W) (23 August 2005)

The court held that the Constitutional Court's decision in Jaftha v Schoeman, while directly applicable to the Magistrates’ Court, is of persuasive authority in considering the constitutionality of High Court procedures for declaring immovable property executable. Where the debtor has specifically hypothecated property as security for a debt and there is no abuse of procedure, the limitation of the right to housing is reasonable and justifiable. The Registrar may declare such property executable, but safeguards must be in place, including the right to reconsideration by the court and requirements for creditors to provide specific information in their applications. Applications for default...

Citation
[2005] ZAGPHC 85
Parties
Plaintiff: Nedbank Limited; Defendant: Debbie-Ann Mortinson
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
23 August 2005
Case Number
4183/05
Procedural Posture
Civil Judgment / Default Judgment Application; Referral for Judicial Consideration
Outcome
Application for default judgment referred to the Registrar to be dealt with in terms of Rule 31(5) of the Rules of Court.
Judges
M M Joffe, P M Mojapelo, C J Claassen
Legal Topics
Default Judgment, Declaration of Executability, Section 26 Right to Housing, Judicial Oversight, Mortgage Bond Enforcement, Rule 31 5 Application
Civil Procedure Constitutional Law Land and Property Default Judgment Declaration of Executability Section 26 Right to Housing Judicial Oversight Mortgage Bond Enforcement +1 more

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Parties

Nedbank Limited

Plaintiff

Debbie-Ann Mortinson

Defendant

Procedural Posture

Civil Judgment / Default Judgment Application; Referral for Judicial Consideration

Legal Issues

  1. 1 Whether the Constitutional Court judgment in Jaftha v Schoeman applies to default judgment applications under Rule 31(5) where immovable property is specially hypothecated.
  2. 2 If applicable, whether such applications must be heard in open court or may be decided in chambers.
  3. 3 Effect of Transvaal Rule 3(2) if applications can be heard in chambers.

Ratio Decidendi

The court held that the Constitutional Court's decision in Jaftha v Schoeman, while directly applicable to the Magistrates’ Court, is of persuasive authority in considering the constitutionality of High Court procedures for declaring immovable property executable. Where the debtor has specifically hypothecated property as security for a debt and there is no abuse of procedure, the limitation of the right to housing is reasonable and justifiable. The Registrar may declare such property executable, but safeguards must be in place, including the right to reconsideration by the court and requirements for creditors to provide specific information in their applications. Applications for default...

Court Disposition

Application for default judgment referred to the Registrar to be dealt with in terms of Rule 31(5) of the Rules of Court.

Orders

  • In all applications for default judgment seeking an order declaring specially hypothecated immovable property executable, the creditor must file an affidavit addressing specified facts.
  • Applications for default judgment within the Magistrates’ Court jurisdiction must be referred by the Registrar to the court.