South Africa Case Law

Body Corporate of Monterey v Zakwe (AR483/2023)

Body Corporate of Monterey v Zakwe (AR483/2023) [2024] ZAKZPHC 117 (29 November 2024)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR483/2023

Judges

Olsen, Shapiro

The court held that Rule 43A of the Magistrates' Court Rules requires personal service on the judgment debtor in every application to declare residential immovable property executable, regardless of whether the property is the primary residence. The status of the property as a primary residence is a factual issue that must be ventilated before the court, and the judgment debtor is entitled to be heard on this issue. The absence of the debtor from the property does not dispense with the requirement of personal service unless substituted service is authorized by the court. The decision in Bushm…

Source excerpt

• Execution Against Residential Property
• Personal Service Requirements
• Magistrates Court Rule 43a
• Uniform Rule 46a
• Judicial Oversight
• Primary Residence Determination

Firstrand Bank Limited v Salm and Others (41829/2019)

Firstrand Bank Limited v Salm and Others (41829/2019) [2023] ZAGPJHC 993 (5 September 2023)

Court

South Gauteng High Court, Johannesburg

Case number

41829/2019

Judge

T Lipshitz

The High Court granted Firstrand Bank judgment, declared mortgaged property specially executable, set a reserve price, and awarded costs.

• Mortgage Bond Enforcement
• Rule 46a Execution
• Reserve Price Determination
• Personal Service Requirements
• Arrears And Interest
• National Credit Act Application

Standard Bank of South Africa Limited v Hendricks and Another (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18)

Standard Bank of South Africa Limited v Hendricks and Another (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175; [2019] 1 All SA 839 (WCC); 2019 (2) SA 620 (WCC) (14 December 2018)

Court

Western Cape High Court, Cape Town

Case number

11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18

Judges

Erasmus, Dolamo, Savage

The full bench held that Rule 46A is intra vires the Rules Board, introducing procedural requirements for foreclosure against a primary residence but not substantive law. Personal service by the sheriff is required for such applications, and the court must be satisfied that genuine attempts at personal service have been made before authorising alternative service. Money judgment and special execution orders must be sought and adjudicated together, as they are causally and procedurally linked; piecemeal litigation is discouraged to avoid increased costs and prejudice to debtors. The court reta…

Source excerpt

• Foreclosure Procedure
• Rule 46a
• Right Of Access To Housing
• Personal Service Requirements
• Reserve Price Setting
• National Credit Act Compliance