Nedbank Ltd v Jessa and Another

• Jurisdiction: South Africa
• Citation: 2012 (6) SA 166 (WCC)

Nedbank Ltd v Jessa and Another
2012 (6) SA 166 (WCC)

2012 (6) SA p166

Citation	2012 (6) SA 166 (WCC)
Case No	6656/2011 and 2 similar cases
Court	Western Cape High Court, Cape Town
Judge	Blignault J
Heard	December 20, 2011
Judgment	December 20, 2011
Counsel	Counsel details not supplied

Flynote : Sleutelwoorde B

Execution — Sale in execution — Mortgaged immovable property — Sale of residential property for recovery of outstanding bond repayments — Content of summons — Notification to defendant of s 26(1) right and of need to place information demonstrating its violation before court — To this to be added C that defendant may place 'relevant circumstances' within meaning of s 26(3) and rule 46(1) before court — Constitution, ss 26(1) and 26(3); Uniform Rules of Court, rule 46(1).

Execution — Sale in execution — Mortgaged immovable property — Sale of residential property for recovery of outstanding bond repayments — Content of D summons — Plaintiff must allege 'relevant circumstances' within meaning of s 26(3) and rule 46(1) in summons — Constitution, ss 26(1) and 26(3); Uniform Rules of Court, rule 46(1).

Headnote : Kopnota

In three applications a bank applied for default judgment in respect of loans to E the defendants, and also for declarations that the defendants' homes, which were subject to mortgage bonds, were executable. In issue firstly was the requirement that a summons, claiming a declaration of executability in respect of immovable property, inform the defendant of the s 26(1) constitutional right: ought this notice to be supplemented to inform of s 26(3) as well? (Paragraph [4] at 168A.)

F The second issue was whether it was permissible for a plaintiff to place relevant circumstances within the meaning of s 26(3) at the hearing before the court by affidavit, rather than serving such information on the defendant in the summons. (Paragraph [4] at 168A/B.)

As to the first issue, Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA) requires a summons claiming a declaration of G executability in respect of immovable property, to contain the following notification:

'The defendant's attention is drawn to s 26(1) of the Constitution of the Republic of South Africa which accords to everyone the right to have access to adequate housing. Should the defendant claim H that the order for execution will infringe that right it is incumbent on the defendant to place information supporting that claim before the court.'

The court held that a plaintiff should add a notification that the defendant was entitled to place information regarding 'relevant circumstances', within the I meaning of s 26(3) of the Constitution and Uniform Rule 46(1), before the court hearing the matter. (Paragraph [12] at 169H.)

As to the second issue, the court held that it was impermissible for a plaintiff to present relevant circumstances by way of an affidavit that had not been served on the defendant. Relevant circumstances ought to be alleged in the J summons and served on the defendant. (Paragraph [17] at 170C – D.)

2012 (6) SA p167

Cases Considered

Annotations: A

Case law

Gundwana v Steko Development and Others 2011 (3) SA 608 (CC) (2011 (8) BCLR 792; [2011] ZACC 14): considered

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476): referred to B

Standard Bank of South Africa Ltd v Bekker and Another and Four Similar Cases 2011 (6) SA 111 (WCC): considered

Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA) (2006 (9) BCLR 1022; [2006] 2 All SA 382): considered.

Rules Considered

Rules of court C

The Uniform Rules of Court, rule 46(1): see The Supreme Court Act and the Magistrates' Courts Act and Rules 10 ed (Juta 2012) at 69.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, ss 26(1) and D ...