South Africa Case Law

Petrus Johannes Bestbier and Others v Nedbank Ltd (CCT 181/22)

Petrus Johannes Bestbier and Others v Nedbank Ltd (CCT 181/22) [2024] ZACC 2; 2024 (6) BCLR 741 (CC); 2024 (4) SA 331 (CC) (12 April 2024)

Court

Constitutional Court

Case number

CCT 181/22

Judges

Maya, Kollapen, Mathopo, Mhlantla, Rogers, Schippers, Theron, Tshiqi, Van Zyl

The Constitutional Court held that Rule 46A applies to trust-owned residential property occupied by natural persons, but dismissed the appeal and struck the cross-appeal.

• Uniform Rule 46a
• Section 26 Right To Housing
• Trust Property Execution
• Notice To Affected Parties
• Extension Of Security Of Tenure Act
• Huur Gaat Voor Koop

Nedbank Limited v Trustees for the time being of the Mthunzi Mdwaba Family Trust and Others

Nedbank Limited v Trustees for the time being of the Mthunzi Mdwaba Family Trust and Others [2023] ZAGPPHC 93; A162/2021 (16 February 2023)

Court

North Gauteng High Court, Pretoria

Case number

A162/2021

Judges

Phahlane, M Munzhelele, H Koovertje

The court held that Rule 46A applies to residential property registered in the name of a trust when it is occupied as a primary residence by trust beneficiaries. The Supreme Court of Appeal in Bestbier clarified that the protection of Rule 46A extends to such beneficiaries, and the court must conduct a proper inquiry into their circumstances, including indigence and vulnerability, before authorising execution. In this case, there was no evidence before the court regarding the respondents' indigence or whether they fall under the Jaftha requirements. Therefore, the matter must be remitted to t…

Source excerpt

• Rule 46a Executable Property
• Primary Residence Protection
• Judicial Oversight
• Section 26 Right To Housing
• Trust Property Execution
• Reserve Price Setting

Petrus Johannes Bestbier and Others v Nedbank Limited (150/2021)

Petrus Johannes Bestbier and Others v Nedbank Limited (150/2021) [2022] ZASCA 88; 2023 (4) SA 25 (SCA) (13 June 2022)

Court

Supreme Court of Appeal

Case number

150/2021

Judges

Saldulker, Molemela, Dlodlo, Weiner, Molefe

The Supreme Court of Appeal held that rule 46A of the Uniform Rules of Court is applicable even when the property sought to be declared executable is owned by a trust and occupied as a primary residence by trust beneficiaries. The Court found that the purpose of rule 46A is to ensure judicial oversight and protect the right to adequate housing under section 26 of the Constitution, regardless of the legal nature of the property owner. However, the appellants failed to demonstrate that they or the beneficiaries fell within the category of vulnerable persons at risk of homelessness as envisaged…

Source excerpt

• Uniform Rules Of Court Rule 46a
• Judicial Oversight
• Right To Adequate Housing
• Trust Property Execution
• Consent Judgment