South Africa Case Law

ABSA Bank Limited v Gontsana and Another (27485/2013)

ABSA Bank Limited v Gontsana and Another (27485/2013) [2023] ZAGPJHC 86; 2023 (3) SA 530 (GJ) (7 February 2023)

Court

South Gauteng High Court, Johannesburg

Case number

27485/2013

Judge

S D J Wilson

The court found that ABSA's decade-long delay in executing the judgment, coupled with its acceptance of substantial payments from the respondents, created uncertainty as to whether execution remained proportionate and lawful. ABSA failed to provide a satisfactory explanation for the delay or for its conduct in operating the respondents' account as if the judgment had not been taken. The court held that, although ABSA did not unequivocally waive or abandon its rights under the original judgment, the circumstances justified suspension of the execution order pending further information. The prop…

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• Sale In Execution
• Proportionality Of Execution
• Waiver Of Judgment
• Abuse Of Process
• Rule 46a
• National Credit Act

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

Changing Tides 17 (Pty) Ltd NO v Mabiletsa and Others; Absa Bank v Montwetsana (30443/2017; 30147/2018)

Changing Tides 17 (Pty) Ltd NO v Mabiletsa and Others; Absa Bank v Montwetsana (30443/2017; 30147/2018) [2018] ZAGPJHC 605; [2019] 1 All SA 619 (GJ) (14 November 2018)

Court

South Gauteng High Court, Johannesburg

Case number

30443/2017; 30147/2018

Judge

Spilg

The court held that foreclosure and monetary judgment on bonded residential property cannot be granted without full judicial oversight and consideration of all relevant circumstances, including the debtor's personal and financial situation. In both cases, the court found that the defendants had presented credible evidence of hardship and efforts to rehabilitate their financial positions. The court emphasized that socio-economic legislation and constitutional rights require a proportional and equitable approach, not automatic enforcement of contractual terms. In Changing Tides, the court quest…

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• Foreclosure
• National Credit Act
• Judicial Oversight
• Debt Restructuring
• Certificate Of Indebtedness
• Proportionality Of Execution