Automated Summary
Key Facts
The Plaintiff, Nedbank Ltd, granted a home loan of R1,785,000 plus R178,500 to the Defendant for property purchase. The Defendant defaulted on payments, falling 13.17 months in arrears (R201,086.52) by July 2021. The Plaintiff issued a Section 129 notice of default and applied for default judgment under Rule 31(5). The Court granted a default judgment for R1,613,668.18 plus 10% annual interest but postponed the Rule 46A application to declare the property executable due to insufficient evidence of the Defendant's movable property status and unresolved settlement negotiations. The property remains the Defendant's primary residence with her minor daughter.
Transaction Type
Home Loan Agreement and Mortgage Loan Agreement between Nedbank Ltd and Jabulisile Busisiwe Nxumalo
Issues
- The court evaluated whether the immovable property should be declared specially executable under Rule 46A, despite the Defendant's partial payments and ongoing settlement negotiations.
- The court considered whether the Plaintiff is entitled to a default judgment against the Defendant for failure to respond to the summons and comply with the loan agreement terms.
Holdings
- Payment of the sum of R1,613,668.18.
- Interest on the said amount at the rate of 10% per annum calculated and capitalised monthly in advance from 1 November 2018 to date of payment.
- Costs of the suit.
- The application in terms of Rule 46A is hereby postponed sine die.
Remedies
- Application under Rule 46A postponed sine die
- Costs of the suit awarded to the plaintiff
- 10% annual interest calculated monthly in advance from 1 November 2018 to date of payment
- Default judgment for R1,613,668.18
Contract Value
1963500.00
Monetary Damages
1613668.18
Legal Principles
The Court applied Rule 46A of the Uniform Rules of Court, which requires that a writ of execution against immovable property cannot be issued unless there is insufficient movable property to satisfy the writ. The Plaintiff failed to provide evidence of such a return, preventing the Court from granting the requested order.
Key Disputed Contract Clauses
- The clause allowing the Plaintiff to adjust the interest rate on the loan and corresponding monthly instalments based on its determined bond rate.
- The contractual provision securing the loan with a mortgage bond over the Defendant's immovable property as collateral for repayment.
- The loan agreement clause stipulating that the full outstanding balance becomes immediately due and payable upon the Defendant's failure to make any payment on the due date.
Cited Statute
National Credit Act 34 of 2005
Judge Name
Peter M. Mabuse
Passage Text
- 20.1 there is clear evidence that the parties herein were involved in some negotiations to resolve the dispute around her failure to pay the instalments properly and that those negotiations have not been concluded; 20.2 it is also clear that the Defendant appears to be in a better position to make payments and that, in fact, she has paid a sum of R260,000.00 and has thereby liquidated the arrears she was owing; 20.3 the immovable property which the Plaintiff seeks to have declared specially executable is her primary residence; 20.4 she occupies the said immovable property together with her minor daughter; 20.5 there are other methods of resolving the dispute between her and the Plaintiff than declaring the immovable property executable; 20.6 Rule 46 of the rules provides as follows: "Subject to the provisions of Rule 46A no writ of execution against the immovable property of any judgment debt shall be issued unless – (i) a return has been made of any process issued against the movable property of the judgment debtor from which it appears that the said person has insufficient movable property to satisfy the writ"; As the Plaintiff has not placed any return of service of any process issued against the Defendant's movable property, this Court is unable to grant an order declaring the immovable property of the Defendant specially executable. 20.7 The Plaintiff has not furnished this Court with the debtor's payment history.
- [22] Based on that the Court grants default judgment as follows: 1. Payment of the sum of R1,613,668.18. 2. Interest on the said amount at the rate of 10% per annum calculated and capitalised monthly in advance from 1 November 2018 to date of payment. 3. Costs of the suit. 4. The application in terms of Rule 46A is hereby postponed sine die.
Damages / Relief Type
- Default judgment for R1,613,668.18
- Costs of the suit awarded to the plaintiff
- 10% annual interest calculated monthly in advance from 1 November 2018 to date of payment