Case Notes: Executing a judgment debt against immovable property occupied as a family home in customary law: Nedbank Limited v Molebaloa

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Pages: 348-367
• Citation: (2018) 30 SA Merc LJ 348
• Author: Reghard Brits

Case Notes

EXECUTING A JUDGMENT DEBT AGAINST

IMMOVABLE PROPERTY OCCUPIED AS A

FAMILY HOME IN CUSTOMARY LAW:

NEDBANK LIMITED V MOLEBALOA

REGHARD BRITS

1

*

Senior Lecturer, Department of Mercantile Law, University of Pretoria

I INTRODUCTION

In the inf‌luential Constitutional Court case of Port Elizabeth Municipal-

ity v Various Occupiers 2005 (1) SA 217 (CC), Sachs J remarked that

‘[t]he stronger the right to land, the greater the prospect of a secure

home’ (para 19). Following this logic, therefore, a home can be situated

or established anywhere, but a secure home only exists where you have a

legal right to occupy — a right that is strong enough to protect your

occupation against competitors. This right securely to occupy the

physical space you call home does not necessary have to derive from

ownership; it can be, inter alia, a limited real right, a contractual right, or

even a special statutory right or licence. It can also be a derivative right,

such as when a child’s right to occupy depends on the parent’s right. The

diff‌iculty comes in when you do not (or no longer) have a recognised

right to occupy the place you call home — when your tenure is or

becomes insecure.

Among the various ways in which secure tenure of a home can

become insecure is when the property is subjected to debt enforcement

action by a creditor. The quintessential example is the foreclosure

remedy of a mortgage creditor, which typically ends in the judicial sale of

the mortgaged property and the compulsory departure of the former

owner/debtor/occupier. Major advances have already been made in the

procedural and substantive rules that govern this remedy, mostly as a

result of the housing clause (s 26 of the Constitution of the Republic of

* BCom (Law) LLB LLD. ORCID ID: http://orcid.org/0000–0002–2416–4339. This contri-

bution is based on a paper delivered at the Private Law and Social Justice Conference, hosted

on 21–22 August 2017 by the Department of Private Law, Nelson Mandela University.

348

(2018) 30 SA Merc LJ 348

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South Africa, 1996) and consumer legislation (the National Credit Act

34 of 2005). Therefore, homes already enjoy a large degree of protection

against the abusive and/or disproportionate institution of debt enforce-

ment remedies. However, as explained in greater detail below, almost all

of these developments have focussed on the position of an owner-

occupier, whereas very little attention is generally paid to the interests of

other occupiers (such a family members and/or tenants of the owner).

Therefore, the aim of this contribution is to consider one such situation,

namely, where debt enforcement and execution proceedings are levied

against immovable property that is occupied as a ‘family home’ as

understood in South African customary law, and where few if any of the

inhabitants have any formal proprietary, contractual, or statutory rights

to the land. My analysis will pivot on the recent High Court case of

Nedbank Limited v Molebaloa (37780/2015) [2016] ZAGPPHC 863

(12 August 2016) SAFLII, available at http://www.saf‌lii.org/za/cases/

ZAGPPHC/2016/863.html, where this precise issue manifested.

As will be seen throughout, this case raises some important and

diff‌icult conundrums. It illustrates that the right to occupy a family

home is problematic in customary law, not in and of itself, but because it

is not suff‌iciently recognised and protected in mainstream property law,

despite being a ‘widespread and well entrenched form of residential

tenure in urban areas’ (para 11). However, the purpose of this contribu-

tion is not to attempt a complete solution, but rather to f‌lag this issue,

highlight the suggestions made by the court, provide preliminary

remarks, and urge urgent law reform.

II THE FACTS AND LEGAL PROBLEM IN MOLEBALOA

The applicant (Nedbank) had obtained judgment by default against the

respondent (Molebaloa) on the basis of a claim for the accelerated

payment of all moneys outstanding on a loan secured by a mortgage

bond registered over immovable property belonging to the respondent

(paras 1–3). However, the court did not grant an execution order against

the property. In line with the court’s contemporary practice, it instead

postponed the execution application sine die for reasons relating to the

fact that the property was the primary residence of the debtor and his

ex-wife, and because the property was subject to complications sur-

rounding their divorce proceedings (paras 4, 6; see also Part III(a)

below).

Since Nedbank could therefore not immediately rely on their normal

security under the mortgage bond, it tried to execute the judgment

against other assets belonging to the respondent. After a nulla bona

EXECUTING A JUDGMENT DEBT AGAINST IMMOVABLE PROPERTY 349

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