Execution against Residential Immovable Property in terms of High Court Rule 46A

• Jurisdiction: South Africa
• Author: Brits, R.
• DOI: https://doi.org/10.47348/SLR/v32/i1a3
• Date: 21 June 2021
• Citation: (2021) 32 Stell LR 47
• Pages: 47-70
• Published date: 21 June 2021

47

https://doi.org/10.47348/SLR/v32/i1a3

EXECUTION AGAINST RESIDENTIAL

IMMOVABLE PROPERTY IN TERMS OF HIGH

COURT RULE 46A

Reghard Brits

BComm (Law) LLB LLD

Associate Professor, Department of Mercantile Law, University of Pretoria*

Abstract

This article provide s an overview of and co mmentary on High Court Rule

46A, which deals with the procedural r ules for executing a judg ment debt

against residential immova ble property. Rule 46A focusses on t wo main

aspects: determining if it is justied t o sell the debtor’s home in execut ion

and, if a sale is ordered, set ting a reserve pric e at which the property i s to

be auctioned. Th erefore, this article analyse s the provisions of rule 46A that

pertain to these two c omponents, which also serve as two layer s of protection

for a debtor facing the loss of his or her home .

Keyword s: High Court Rule 46A; sale in execution; resident ial immovable

property; mortgage foreclosure; reser ve price

1 Introduction

The Rules Regulating t he Conduct of the Proceedings of the Severa l

Provincial and L ocal Divisions of the High Court of South Africa (“High

Court Rules”) and the Rules Regulating the Conduct of the Proceedings of the

Magistrates’ Cour ts of South Africa (“Magis trates’ Courts Rules”) are made

by the Rules Board for Courts of Law (“Rules Boa rd”), with the approval of

the Mi nister of Justice and Correctional Services.1 For both the High Court

and the Magistrates’ Cour ts, the ru les per taining to the sale in execution of

residential immovable propert y were substantially amende d with effect from

22 December 2017.2

Since the rules for the two cou rts are very si milar, only the High Cour t

Rules will be dis cussed, more specically r ule 46A, titled “Execution against

residential immovable prope rty”.3 Aspects of this rule were previously

included in rule 46, which conce rns execution against i mmovable property

in general, but the int ricacies surrou nding the execution of judgment debts

against residential proper ty have necessitated a separate ru le to deal with this

category of immovable propert y. Although the new rule deals with severa l

* Thank you to Co rlia van Heerden as well as the a nonymous reviewers for thei r exceptionally valuable

comments on t his article All e rrors are my own

1 S 6 of the Rules Board fo r Courts of Law Act 107 of 1985

2 See GN R1272 in GG 41257 of 17-11-2017

3 The equivalen t provision is Magistr ates’ Courts Rul e 43A

(2021) 32 Stell LR 47

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https://doi.org/10.47348/SLR/v32/i1a3

important pro cedural matte rs inspired by the const itutional developments

surroundi ng the sale i n execution of a judgment debtor’s home, the major

innovation is that the cour t is empowered to set a reser ve price at which the

property must be put up for auct ion. Developments leading to the introduction

of rule 46A have been traced exte nsively in literature4 a nd thus it is not

necessary to re peat the details here. Some nece ssary references a re made

to the jurispr udence on this topic in the d iscussion of the provisions of rule

46A below. Reference is also made to relevant aspects of chapter 10.17 of

the Practice Manua l of the Gauteng Local Division of the High Cour t of

South Africa (“Gauteng Practice Ma nual”),5 which cont ains speci c practical

arrangements rega rding execution against re sidential property for th at

division.6

Therefore, this art icle examines the salient featu res of the new rule

46A, which contemplates two layers of protection for a debtor faced wit h a

creditor’s application to have his or her home sold in execution. First, the rule

gives procedural effect to t he constitutional principles that a person may only

be evicted from his home if a cou rt authorises it, af ter having considered a ll

the relevant circumsta nces of the case so that an arbitrary ev iction is avoided,7

and that a home may only be lost if the resultant limitation of the debtor’s right

of access to adequate housing8 is justiable.9 The se cond layer of protection

in rule 46A relate s to after the sale passed the test in the rst layer a nd, thus,

when the propert y is to be attached and put up for auction. I n this regard the

rule provides that the cou rt may set a reserve price at which the house must be

sold. The rationale is that this me chanism should prevent homes from being

sold at unreasonably low prices.10

Consequently, the rst layer is aimed at trying to avoid a sale of the property

in favour of alternative ways to sat isfy the creditor’s claims, while the second

layer is aimed at pr otecting the debtor’s interests when a sale cannot be

avoided, by ensuring that t he sale is conducted in a fair and reasona ble matter.11

The discussion below is st ructured according to these two layers: rst the

provisions in rule 46A per taining to the ap plication for an execution order,

and se cond, th e provisio ns concer ning th e court’s po wer to set a re serve pr ice.

4 See eg R Brits Real S ecurity Law (2016) 63-100 (and other sou rces cited there)

5 Gauteng Local Division: Joha nnesburg “Pract ice Manual of the Gauteng Local Division of the High Court

of South A frica” (16-10-2018) Johannesburg Bar a/wp-conte nt/uploads/

Practice_Manual _Gauteng-Local-Division-of-the-High-Cou rt_Johannesburg _16-October-2018 pdf>

(accessed 25-11-2019)

6 The Western Cap e High Court Pra ctice Direction 33A, whic h was issued in annex ure A to the judgment

in Standard Ba nk of South Afric a Limited v Hendrick s 2019 1 All SA 83 9 (WCC), is a lmost id entica l to ch

1017 of the Ga uteng Practice M anual and therefore r eference is made here o nly to the latter

7 S 26(3) of the Const itution of the Republ ic of South Africa, 1996 (“Const itution”) See also Cha nging

Tides 17 (Pty) Ltd NO v Meik le 2020 5 SA 146 (KZP) para 10

8 S 26(1) of the Constitutio n See also Allinah v Resc ue Rod (Pty) Ltd 2019 JOL 40836 (GJ) para 4 4

9 S 36(1) of the Constitution

10 Rule 46A entails procedural rules only; the rule neither creates nor adds to existing substantive law: see

Standard Ba nk of South Africa Lim ited v Hendricks 2019 1 All SA 839 ( WCC) paras 25-28, 57

11 A higher sal e price undoubted ly will serve the in terests of the cred itor as well

48 STEL L LR 2021 1

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