South Africa Case Law

Standard Bank of South Africa Ltd v Tchibamba and Another (5642/2018)

Standard Bank of South Africa Ltd v Tchibamba and Another (5642/2018) [2022] ZAWCHC 169; 2022 (6) SA 571 (WCC) (2 September 2022)

Court

Western Cape High Court, Cape Town

Case number

5642/2018

Judge

A.G. Binns-Ward

The court held that Rule 46A(9) does not require a fresh application for reconsideration of the reserve price; rather, the process is an extension of the original Rule 46A application. The reconsideration is inquisitorial, not adversarial, and the court must be able to call for updated information from the Sheriff and interested parties. The registrar should place the Sheriff’s report before a judge, who must afford the parties a reasonable opportunity to supplement the record and make submissions. The court found that the judgment debtors had entered into a private sale agreement for the pro…

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• Rule 46a Sale In Execution
• Reserve Price Reconsideration
• Primary Residence Execution
• Judicial Oversight Of Execution
• Forced Sale Value
• Court Practice Directives

Standard Bank of South Africa Limited v Mwamba (4611/2016)

Standard Bank of South Africa Limited v Mwamba (4611/2016) [2019] ZAGPPHC 1013 (12 December 2019)

Court

North Gauteng High Court, Pretoria

Case number

4611/2016

Judge

E.M Kubushi

Bank sought to execute against a primary residence after default judgment. The court found arrears were not fully remedied, but postponed execution to allow time to pay.

• Judicial Oversight Of Execution
• Primary Residence Protection
• National Credit Act
• Section 26 Constitution
• Arrears And Remedy
• Proportionality Of Execution

Microzone Trading 474 CC v Govender and Others (AR34/15)

Microzone Trading 474 CC v Govender and Others (AR34/15) [2016] ZAKZPHC 1 (5 January 2016)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR34/15

Judges

Lopes, Marks AJ

The court found that the magistrate correctly exercised judicial oversight by refusing to declare the respondents' immovable property executable. The respondents' financial situation was dire, with minimal income and reliance on their son for survival. The debt was small relative to the value of the property, and the respondents had made some payments and offered to pay R600 per month, which was reasonable given their circumstances. The appellant, a micro-lender, had charged an exorbitant interest rate of 42% per annum, raising concerns of reckless lending. The court held that the appellant h…

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• Judicial Oversight Of Execution
• Right To Adequate Housing
• Reckless Lending
• Magistrates Court Procedure
• Proportionality In Execution
• Interest Rate Regulation

Absa Bank Limited v Bantjes and Another (3748/2013)

Absa Bank Limited v Bantjes and Another (3748/2013) [2015] ZAFSHC 157 (13 August 2015)

Court

Free State High Court, Bloemfontein

Case number

3748/2013

Judge

C. Reinders

The High Court granted Absa Bank’s application to declare the Bantjes’ home executable after judgment debt default, finding no sufficient basis to refuse execution.

• Judicial Oversight Of Execution
• Primary Residence Protection
• Rule 46 High Court Rules
• Mortgage Bond Enforcement
• Sale In Execution
• Costs Award

Maleka and Another v Nedbank Ltd and Others (23766/2008)

Maleka and Another v Nedbank Ltd and Others (23766/2008) [2013] ZAGPPHC 183 (3 July 2013)

Court

North Gauteng High Court, Pretoria

Case number

23766/2008

Judge

Kubushi

The court found that the sale in execution and subsequent transfer of the applicants' residential property were invalid because the warrant of execution was issued without the judicial oversight required by section 26 of the Constitution and the principles established in Jaftha v Schoeman. The court held that the applicants' right to adequate housing was infringed, as the court did not consider all relevant circumstances before issuing the writ, especially given the lapse of four years since the original order. The absence of judicial oversight rendered both the warrant and the sale in execut…

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• Judicial Oversight Of Execution
• Section 26 Right To Housing
• Sale In Execution
• Nullity Of Transfer
• Summary Judgment
• Appropriate Relief

Nophale v ABSA Bank Ltd and Others (489/2012)

Nophale v ABSA Bank Ltd and Others (489/2012) [2012] ZAFSHC 208 (21 June 2012)

Court

Free State High Court, Bloemfontein

Case number

489/2012

Judge

Snellenburg, AJ

The court found that the applicant failed to provide a sufficient and credible explanation for her delay in bringing the rescission application, which spanned over two years after she became aware of the sale and transfer. The applicant did not establish a bona fide defence to the claim sounding in money, as she remained in persistent default and her payment did not purge the arrears. Although the execution order was constitutionally invalid due to lack of judicial oversight, the applicant did not satisfy the additional requirements set out in Gundwana, namely that a court would have refused…

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• Rescission Of Default Judgment
• Judicial Oversight Of Execution
• Section 26 Constitution
• Sale In Execution
• Transfer Of Immovable Property

Nedbank Limited v Fraser and Another, Nedbank Limited v Chabalala and Another, Nedbank Limited v Machitele and Another, Nedbank Limited v Moccasin Investments (Pty) Limited, Absa Bank Limited v Young Star Traders CC and Another (2011/00418, 2011/9315, 2010/28374, 2010/31703)

Nedbank Limited v Fraser and Another, Nedbank Limited v Chabalala and Another, Nedbank Limited v Machitele and Another, Nedbank Limited v Moccasin Investments (Pty) Limited, Absa Bank Limited v Young Star Traders CC and Another (2011/00418, 2011/9315, 2010/28374, 2010/31703) [2011] ZAGPJHC 35; 2011 (4) SA 363 (GSJ) (4 May 2011)

Court

South Gauteng High Court, Johannesburg

Case number

2011/00418, 2011/9315, 2010/28374, 2010/31703, 2011/07117

Judge

J R Peter

The court held that, following the amendment to Rule 46(1)(a) and the Constitutional Court's decision in Gundwana, judicial oversight is mandatory before declaring immovable property executable when it constitutes a person's home. The relevant circumstances include the origin of the debt, whether the property was hypothecated as security, the amount of the debt and arrears, and the existence of reasonable alternatives to execution. Where the debt arises from a mortgage bond used to acquire the property and substantial arrears exist, execution is generally justified unless there is evidence of…

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• Judicial Oversight Of Execution
• Section 26 Right To Housing
• Mortgage Bond Enforcement
• National Credit Act Compliance
• Default Judgment Procedure
• Summary Judgment Procedure

Changing Tides 17 (Pty) Ltd v Scholtz and Another (2975/09)

Changing Tides 17 (Pty) Ltd v Scholtz and Another (2975/09) [2010] ZAECPEHC 3 (2 February 2010)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2975/09

Judge

EKSTEEN

High Court summary judgment on a loan default and debt review dispute. The court held section 86(11) relief lay with the Magistrates' Court, and granted execution against the property.

• National Credit Act
• Summary Judgment
• Debt Review
• Judicial Oversight Of Execution
• Summary-judgment
• National-credit-act

Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Another (CCT1/06)

Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Another (CCT1/06) [2006] ZACC 5; 2006 (6) SA 103 (CC); 2006 (6) BCLR 669 (CC) (31 March 2006)

Court

Constitutional Court

Case number

CCT1/06

The Constitutional Court dismissed an application for leave to appeal and direct access in a housing-execution dispute, but held the applicant had public-interest standing.

• Public Interest Standing
• Section 26 Right To Housing
• Default Judgment
• Judicial Oversight Of Execution
• Constitutionality Of Court Rules
• Public-interest-standing

Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03)

Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004)

Court

Constitutional Court

Case number

CCT74/03

Judges

Mokgoro, Chaskalson, Langa, Moseneke, Ngcobo, O'Regan, Sachs, Skweyiya, Van der Westhuizen, Yacoob

Section 66(1)(a) of the Magistrates’ Courts Act is unconstitutional to the extent that it permits execution against the homes of indigent debtors without judicial oversight, thereby unjustifiably limiting their right of access to adequate housing under section 26(1) of the Constitution. The legislative scheme is overbroad and fails to protect vulnerable debtors who may lack knowledge or resources to invoke available remedies. Judicial oversight is required to ensure that execution is only ordered after consideration of all relevant circumstances, balancing the interests of creditors and debto…

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• Right Of Access To Adequate Housing
• Judicial Oversight Of Execution
• Limitation Of Rights
• Magistrates Courts Act
• Remedies For Unconstitutional Law