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South Africa decisions
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Nedbank Limited v Somniso and Another (13826/2019) [2021] ZAGPJHC 49 (11 February 2021)
Summary judgment was refused in a mortgage enforcement matter because the defendant disclosed a bona fide defence and the home-risk issues were insufficiently addressed.
Masilo v Somandass and Another (57928/14) [2015] ZAGPPHC 290 (7 April 2015)
The court found that the applicant had lawfully confessed to judgment and that ABSA was entitled to obtain judgment and a writ of execution without further notice. The applicant's constitutional rights were not infringed at the stage of judgment, and the confession to judgment was not defective. The property was validly sold in execution and transferred to the respondent, who obtained an eviction order under PIE. The applicant had no prospects of success in rescinding either the ABSA judgment or the eviction order. However, considering the applicant's family circumstances, the court held it w…
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Standard Bank of South Africa Limited v Gordon and Others (2011/6477) [2011] ZAGPJHC 244 (21 September 2011)
The applicant failed to establish a proper cause of action in the founding affidavit by omitting the loan agreement and first mortgage bond, which were essential to define the debt and the terms of the obligation. The attempt to cure these defects in reply was impermissible, as the founding affidavit must contain all material facts and supporting documents. The applicant also failed to comply with the practice directives set out in Mortinson and Saunderson, which require specific averments and procedural safeguards when seeking execution against immovable property. The court held that these r…
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Standard Bank of South Africa Ltd v Gordon and Others [2011] ZAGPJHC 114; 2011/6477 (21 September 2011)
The court dismissed an application to enforce a mortgage bond because the applicant failed to plead the loan agreement and supporting documents properly in the founding affidavit.
Standard Bank of South Africa Ltd v Saunderson and Others (358/2005) [2005] ZASCA 131; [2006] 2 All SA 382 (SCA); 2006 (9) BCLR 1022 (SCA); 2006 (2) SA 264 (SCA) (15 December 2005)
The Supreme Court of Appeal held that the Constitutional Court's decision in Jaftha v Schoeman does not require a mortgagee to justify execution against residential property in every case. The right protected by section 26(1) of the Constitution is the right of access to adequate housing, and only deprivation of such housing implicates the right. In cases where the debt is secured by a mortgage bond and the property owner has voluntarily compromised their ownership rights, execution does not automatically infringe section 26(1). The burden to justify the order arises only if the defendant all…
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