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IN THE HIGH COURT OF SOUTH AFRICA

TRANSVAL PROVINCIAL DIVISION
Date: 01/11/2006
Case No 1865/2006
REPORTABLE
In the matter between:
ABSA BANK LMITED
And
MOHLOUOA JOSEPH NTSANE SEMAKALENG BRIDGET NTSANE
1ST DEFENDANT 
2NDDEFNDANT

Judgment
												
THE PARTIES
1.
The plaintiff is ABSA BANK LIMITED, a company with limited
liability, duly registered in terms of the applicable statutes of the Republic of South Africa, with registration no 1986104794/06 and with head office at Sanlam Centre, clo Jeppe and Von Wielligh streets, Johannesburg.
2.
The first defendant is MOHLOUOA JOSEPH NTSANE, an adult
. man, married to the second defendant in community of property, with chosen domicile at Erf 2052, Kanana, Klerksdorp, Northwest Province.

	- -'.
3. The second defendant is Semakaleng Bridget Ntsane, an adult woman, married to the first defendant in community of property, with chosen domicile at the same address as her husband.
4. The defendants presumably reside at the premises chosen as
	domicile for citation and for execution in terms of a first mortgage
bond registered over the immovable property in favour of the plaintiff.
5. The plaintiff applied for a default judgment against the defendants
	jointly and severally. The application was enrolled for the 31st
	March 2006.
6. The claim for the sum of R 62 042,43, said to be owing as the
	principal sum under a mortgage bond registered over the above
immovable property, is alleged to have arisen because the defendants failed to pay the monthly instalments that have to be
made in terms of the agreement with the bank in order to repay the money the plaintiff lent and advanced to them, either in full or on due date.
7. Service of the summons was effected upon the chosen domicile in
	the absence of both defendants.
8. Neither defendant entered an appearance to defend, hence the
	application for a default judgment.
9. The default judgment application is for relief that has been
	categorized as being a "liquid" claim, namely an order that
immovable property be declared executable; see: Nedbank Ltd v Mortinson 2005(6) SA 462 (W), at par [19].
10. The amount claimed falls within the jurisdiction of the Magistrate's
	court, but was referred to the court in the light of the Mortinson
	judgment, which obliges the Registrar to refer all cases of this

nature wherein a hypothecated property is sought to be declared executable, to the Court to be heard in the open motion court.
11. In compliance with the practice laid down in this judgment, the plaintiff/applicant filed an affidavit by one Greyvenstein, who described himself as "Manager Credit of Plaintiff'. This affidavit
will be referred to as
The first affidavit.
12. In this affidavit, sworn to on the 23rd February 2006, Greyvenstein described the cause of action and the underlying facts of the transaction between the plaintiff and the defendants as follows:
" ...1 have access to all records in this matter and the facts of this
action. The cause of action and the under-lying transaction giving rise thereto are within my personal knowledge, and are to the best
of my knowledge true and correct	(sic).
2.
I hereby verify the cause of action and the facts as set forth in the Plaintiff's summons, in this matter, and verify further that the amount from the Defendants is due and owing to the Plaintiff.
3.
The Defendants are in arrears with their bond payments in the amount of R 18.46 as at the date of application for Default Judgment. Attached hereto a copy of our Certificate of Balance
marked Annexure 'C'. "

13. The amount allegedly in arrears was entered in manuscript in an
	open space left in the typed affidavit for that purpose and was
initialled by the deponent and the commissioner of oaths.
14. The paucity of the information supplied in this affidavit was not improved by the computer printout attached thereto. It merely confirmed that an amount ofR 18,46 was in arrears in respect of the agreed periodic payments on the 24th February 2006.
15. The outstanding balance of the amount owing and secured by the
	bond on that date was R 62042.43.
,
16. The court must assume that the defendants occupy this dwelling as their obviously rather modest and only home. Nothing to the contrary has been suggested.
17. The bond was used to acquire the home.
The default judgment application
18. As appears from the above, Plaintiff sought to deprive the defendants of their home while the amount that was allegedly in .
arrears when the balance outstanding on the bond was sought to be called up can only be described a piffling, particularly when the status of the plaintiff as part of a multi-billion Rand international
financial conglomerate is taken into account.
19. The plaintiff would presumably not have called up the bond if the
arrears had only amounted to R 18,46 when the decision to do so was taken. What the arrears were at that stage did not appear from
	the papers filed in support of the application for default judgment.
	20. From the minute amount to which the arrears had been reduced
	when application for default judgment was made, it is clear that the
	defendants made very real efforts to bring any arrears up to date.

21. There was no explanation on the papers why the plaintiff insisted upon exercising its right to call up the bond, which certainly makes provision for plaintiff s right to do so once the borrowers fall into
arrears.
22. At first blush, plaintiffs decision to enforce the bond appeared
	morally and ethically questionable, strongly reminiscent of Shylock
insisting upon every single ounce of his pound of flesh. The court raised its very considerable disquiet about the apparently
irreversible prejudice the defendants would suffer while the plaintiff relied upon the non-payment of a minute amount to enforce its
claim.
23. Counsel for the plaintiff bank referred to Standard Bank of South Africa Ltd v. Saunderson and Others 2006 (2) SA 264 (SCA) and argued that it had the right to enforce the provisions of the
agreement between itself and the defendants, as the defendants had agreed to limit their right of ownership by registration of the bond over their property to protect the plaintiff s right of payment of the monies lent and advanced for the purpose of acquiring the dwelling
(which purpose is common cause).
24. Although the reasons for calling up the bond were not explained in
Mr Greyvenstein's affidavit, the first impression that the application for default judgment created was certainly that it would be unfair and a striking injustice to deprive apparently poor persons of their only dwelling. Whether they were indeed possessed of few worldly goods was not investigated upon the papers, but appeared to be likely, given the modest nature of their home.
25. Having disclosed that I am a client of the plaintiff bank and that I
	found the apparent hard-heartedness of the application for default
	judgment difficult to accept, I reserved judgment.

26.Having considered the decisions in Mortinson and Saunderson, supra, as well as Jaftha v Schoeman and another; Van Rooyen v Stols
and others 2005 (2) SA 140 (CC), I came to the conclusion that the application for default judgment required further argument. I
requested the parties to address the following issues:
26.1 The bond was registered in 1998. Would the manner and fashion in which the defendants have repaid their liability in terms of the bond from time to time be relevant to the question whether the default judgment ought to be granted?
26.2 If so, on what grounds would such history be relevant?
26.3 Would the enforcement of the plaintiffs rights in
	terms of the bond for the sum R18.46 be unconscionable
or not?
26.4 Is the enforcement of the plaintiffs right to declare the immovable property executable unconscionable? On what ground would such a finding be made?
26.5 Would an enforcement of the provisions of the bond entitling the plaintiff to declare the property executable for the sum of R18.46 be in conflict with the provisions of section 26 of the Constitution, the right of access to housing?
26.6 If so, on what grounds would the fundamental right of
	access to housing be infringed by the enforcement of the
	plaintiff to have the property declared executable?
26.7 Given the plaintiff s rights, would the court have or
	retain a discretion to grant the default judgment prayed

for or not? If so, on what grounds should such discretion be exercised?
26.8 If the plaintiff s insistence upon the enforcement of its right to have the property declared executable is to be branded as unconscionable, what would the underlying moral considerations be that would lead to this finding?
26.9 When would the insistence upon the right to enforce the execution against of the property be morally and ethically acceptable? Which yardsticks ought the court
to apply?
26.10 Could the court insist in cases, where the total arrears
are comparatively minor, that execution should first be sought to be levied against the debtor's movable property, or should be collected by way of a garnishee
order against the debtor's salary, rather than enforce the loss of the dwelling by declaring the property
executable?
26.11 Once debtor has fallen into arrears and the plaintiff has exercised its right and elected to accelerate the payment of the capital owing in terms of the bond and
its underlying agreement, would a court be entitled to force the plaintiff to reinstate, (as it were) the repayment
provisions of the bond by refusing to enforce an order that the full amount of the liability that has become owing and due should be paid?
26.12 Would the refusal on the part of the court to enforce
	the bond not amount to dictating a new contract to the
parties?

26.13 If so, on what grounds could the court exercise such a
	power?
26. I requested the offices of the Legal Resources Centre to act as
amicus curiae and to present argument on behalf of the defendants. 27. The matter was enrolled for the 22nd May 2006 for argument. 28. The parties were at liberty to file affidavits, and heads of argument,
	as though the defendants had entered an appearance to defend the
	application for default judgment.
,
29. Costs were reserved.
30. On the resumption of the matter on the 22nd May 2006, plaintiff was
represented by Ms Maritz, who intimated from the Bar that the plaintiff wished to withdraw the application for default judgment and to prepare a new application in which "the full background to the application would be set out."
31. The court refused leave to withdraw the application and postponed the application until June 2006, with the request to the plaintiff to prepare the heads of argument referred to in par 30 above.
32. The Court's power to refuse leave to withdraw a matter that has been properly set down arises from the provisions of Rule 41 (1), see: Pro tea Assurance Co. Ltd. v. Gamlase and others 1971 (1) SA
460 (BCD).
33. Leave to withdraw the application was refused because the amicus
	curiae had already been appointed and had prepared his heads of
argument; the motivation for the intended withdrawal itself appeared to be unsatisfactory and in need of further elucidation and,
most importantly, the questions that had arisen concerned matters of significant constitutional and commercial import and of public
interest.

- --- ---
34. Plaintiff failed to prepare answers to the questions raised by the Court after the first court hearing, but chose to evade the issue by attempting to withdraw the application.
35. Prior to the resumption of the hearing on the 22nd June 2006, the
	plaintiff filed a further affidavit.
36. The court is indebted to Ms Maritz on behalf of the plaintiff and Mr
	De Villiers of the Legal Resources Centre as amicus curiae for their
thorough and very helpful written and oral arguments presented at the second hearing.
The second affidavit.
37. In this affidavit, sworn to only two days before the extended date of
	the hearing, Mr Greyvenstein explains that, inter alia:
" ... the Application for Default Judgment was withdrawn by the Applicant, inter alia for the following reasons:
..All statements are saved on microfilm and could not be provided timeously;
..It is an expensive exercise to provide statements from inception of a matter and to incur further legal costs was deemed unnecessary
by Applicant, as it was Applicant's intention to withdraw the matter and to lodge an Application de novo in which Applicant would have dealt extensively with the background and facts....
It was not the Applicant's intention to blatantly ignore this Honourable Court by not providing answers to the questions sought. It was however, a case where Applicant was of the intention to withdraw the matter and therefore, it was deemed unnecessary to
deal with the merits of the case...

The initial Application was brought bona fide. Applicant acted by virtue of the acceleration clause... based on authority by the Court
of Appeal (sic), that in case of debt secured by a mortgage bond, the Mortgagee is entitled to immediately attach the immovable property
so secured, instead of first attaching (sufficient) movable assets .... Under no circumstances was Applicant in any way trying to mislead
this Honourable Court by not stating the extensive history and background in (the) initial affidavit. "
38. The affidavit continues to explain that the defendants registered the bond over their home on 16 April 1998 for a sum of R 60000,00. 39. For the next eight years, the defendants intermittently fell into
arrears and made some new arrangements with the plaintiff for payment of the bond. After they were repeatedly warned that legal action would be taken, they brought the outstanding arrears down to the minimal R 18,46 after summons had been issued. Over the
period of eight years, the plaintiff has recorded 110 computer notes on its system as a result of the arrear status of the account.
40. Eventually, after the defendants-had repeatedly defaulted and had been accommodated on several occasions by the plaintiff, the account stood at the balance recorded above, to which interest at
10,5% p/a must be added from the 21st December 2005.
41. In addition, the defendants are said to be in arrears with their
municipal rates and taxes in an amount of R 20 801,11 as at 13 December 2005. No supporting affidavit by an official of the local
	authority was presented in proof of this averment.
	42. The statements over the past eight years which the plaintiff issued to
	the defendants were attached to plaintiff s second affidavit. From
	these it is clear that the defendants have struggled to keep up their

payments, bringing the arrears up to date from time to time within the limits of the bond and then failing to pay promptly again.
43. The one issue the plaintiff does not deal with at all in either of its
	affidavits is the fact that interest was paid by the defendants as the
first charge against every payment over the years. Nor has the sum of the book fees and other bank charges such as penalty interest been disclosed, which the plaintiff was entitled to raise whenever the defendants fell into arrears or any entry relating to any arrears was made in plaintiff s books.
44. In the light of these not unremarkable omissions, the court can only
conclude that the plaintiff has to date not suffered any loss on the secured loan if all monies received from the defendants are taken
into consideration.
45. In addition, the present value of the house that the defendants
	occupy has not been mentioned in either affidavit sworn to by Mr
	Greyvenstein.
	46. Lastly, there is no explanation why these facts were not addressed in
	the first affidavit, resulting in the picture being presented to the
	court that has been related above.
47. In an affidavit filed in support of the plaintiff s second version, Ms
	Van Eck, the plaintiffs attorney, informed the court that "..every
possible step was taken to accommodate the Respondents, but did Respondents fail to honour every arrangement accepted. To apply
	for Default Judgment was Applicant's last resort and was
	Applicant's action justifiably correct. " (sic).
48. It does not appear from plaintiff's papers how the attorney acquired
	the ability to pass this judgment upon the plaintiff s actions.

The plaintiffs duty when applying for default judgment
49. The affidavit that an applicant for a default judgment has to file in
	terms of the Mortinson decision, is by definition an ex parte
statement.
50. In any affidavit made ex parte the deponent is in duty bound to
	disclose all relevant facts that might influence the court's decision,
see Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348 F to 349 B. The failure to comply with this fundamental principle, whether by design or by neglect, would entitle the court to dismiss the
	application on this ground alone.
	51. It is obvious that the full picture of the history of the relationship
	between the plaintiff and the defendants was not dealt with in the
	first affidavit supporting the original application for default
	judgment. It was not even dealt with in the second attempt.
52. The question then arises whether this omission is significant and whether the plaintiff should have disclosed more facts that would have informed the court of the struggle the defendants have been
	through in their endeavour to retain their house.
53. The information that was not included in the affidavit supporting the
	application for default judgment can only be regarded as relevant if
such information, had it been at the court's disposal, was of a nature that might have led the court to a different decision than the one it would have reached without having those facts drawn to its
knowledge.
54. It is clear that much of what was left unsaid could have informed the
Courts eventual decision.

The bonded property
55. The parties are ad idem that the property that was bonded in favour of the plaintiff is situated in Kanana, Orkney. This is a former black township. The entire property is only 294 square meters in extent.
56. The court is indebted to Mr De Villiers for the research into the
	history of the defendants' possession of the house.
57. The defendants have held the property since an unknown date prior
	to 1988. They acquired registered leasehold during the course of that
year in terms of the registration of a leasehold certificate referred to in the bond document, no TL 18246/1988.
58. This acquisition was made in terms of the Conversion of Certain Rights to Leasehold Act 81 of 1988. The purchase price appears to have been R 52 719,00, as this is the amount of the first bond
	registered over the property.
	59. The defendants' leasehold rights were converted to ownership,
	probably during 1998, when the present bond was registered. It
	would appear that the upgrading of the rights to full ownership was
effected by the route created by the provisions of section 3 of the Upgrading of Land Tenure Act 112 of 1991.
60. From the registration of the bond over the property it is clear that the defendants did not receive any state assistance to purchase their home.
61. Given this history and the somewhat erratic pattern of payments made by the defendants, the presumption referred to above that the bonded property is the defendants' first home appears to be reasonable.

62. If this house is lost, the defendants will not qualify for a state
	subsidy if they were to attempt to obtain another dwelling once they
are evicted from their abode. Mr De Villiers as amicus pointed out that the National Housing Code does not provide for a subsidy to a
former house owner, regardless of the reasons that led to such ownership having been lost. Par 2.2 (t) of Chapter 2 of the Code
states clearly that only first time property owners are eligible for a housing subsidy. The exceptions to this rule relate to relocations, consolidations and disabled persons.
63. Mr De Vlliers proceeded to argue that the loss of the defendants' first home, coupled with the inability to access a housing subsidy thereafter, would deprive the defendants of access to "adequate" housing. The granting of the default judgment declaring the
immovable property executable would therefore be unconstitutional. F or this submission he relied primarily upon section 26 (1) of the Constitution and upon the Constitutional Court's judgment in Jaftha
v Schoeman and others; Van Rooyen v Stoltz and others 2005 (2) SA 140 (CC). Although the Constitutional Court held that the State
does have an obligation to protect the right of adequate housing of those who are possessed of a home, but are in danger of losing it,
the Court emphasized that:
" ... any measure which permits a person to be deprived of existing
access to adequate housing limits the rights protected in s 26(1). Such a measure may, however, be justified under s 36 of the
Constitution. " (par 34).
64. Referring to instances where execution against the family home
would be unjustifiable, for instance for the recovery of a debt of trifling importance to the creditor that would result in a disastrous

dispossession of the family of the debtor of their only shelter, Mokgoro J on behalf of the Court continued:
"[42] The interests of creditors must not be overlooked. There might be circumstances where, not withstanding the relatively small
amount of money owed, the creditor's advantage in execution outweighs the harm caused to the debtor. In such circumstances, it
may be justifiable to execute. It is in this sense that a consideration of the legitimacy of a sale in execution must be seen as a balancing
process.
[43] However, it is clear that there will be circumstances in which it
will be unjustifiable to allow execution. The severe impact that execution can have on indigent debtors has already been described.
There will be many instances where execution will be unjustifiable

because the advantage that attaches to a creditor who seeks
execution will be far outweighed by the immense prejudice and
hardship caused to the debtor.
[58] Another factor of great importance will be the circumstances in which the debt arose. If the judgment debtor willingly put his or her house up in some or other manner as security for the debt, a sale in
execution should ordinarily be permitted where there has not been an abuse of court procedure. The need to ensure that homes may be
used by people to raise capital is an important aspect of the value of a home which courts must be careful to acknowledge. "
64. The defendants fall into this latter category. The judgment debtors in Jaftha did not.
65. In Standard Bank of South Africa v Saunderson and others 2006 (2)
	SA 264 (SCA); the Supreme Court of Appeal held that once an
owner of property bonded the same to raise capital, whether for the

purpose of acquiring the residence or otherwise, she or he voluntarily compromises the right of ownership until the debt is repaid. Continued ownership then depends upon repayment of the
bond. While the Court left the door open for a finding, in an appropriate case, that the enforcement of a bond could conflict with the right to adequate housing,
"...such cases are likely to be rare. It is particularly hard to conceive of instances where a mortgagee's right to reclaim the debt
from the property will be denied altogether;... it is more easily possible to contemplate a court delaying execution where there is a
real prospect that the debt might yet be paid... " Cameron J and Nugent J, par [19] and [20].
66. In none of the above-quoted judgments did the question arise whether the bondholder's and creditor's decision to accelerate the repayment of
the full amount of the outstanding liability under the bond upon default of payment of one or more instalments could be set aside or reviewed by the
court hearing an application for default judgment coupled with a prayer to declare the property specifically executable. The decision to accelerate payment would precede the enforcement of the bond. Once the debtor has
defaulted, the creditor is entitled to resolve to enforce the acceleration clause, or to invoke its provisions in those cases where acceleration of the
payment of the outstanding balance occurs automatically.
67. It would be difficult to imagine a ground upon which such a decision by the creditor could be held to be unlawful.
68.At best for the debtor who has willingly bonded her or his property a
	court could enquire whether, prima facie, enforcement of the bond
might be held in abeyance while ways and means are explored by which payment of the debt might be arranged in spite of the debtor having defaulted. This enquiry would be complicated by the fact that

most matters of this nature would come before the court by way of an application for default judgment. While the Court in the
Mortinson matter did not hold as a matter of law that declaring residential property executable did constitute a limitation of the
rights protected in section 26 (1) of the Constitution, but only accepted that this was the case, it did add that, if a small amount was in arrears that triggered the action against the debtor, the possibility of an infringement of these rights was increased and such claims
	therefore required careful scrutiny.
69.Adjudication between conflicting interests in a society that is
	governed by a democratic constitution involves the continuous
	weighing up of competing rights.
70.In casu, the plaintiffs right to commercial activity and the right to
	enforce agreements lawfully entered into must be balanced against
the right to adequate housing that the defendants indubitably enjoy.
71.In this weighing-up process the proportionality of the harm must be considered that may befall the defendants if judgment is granted. It must be weighed against the harm plaintiff may suffer if the agreement underlying the registration of the mortgage bond is rendered commercially ineffective. Not only would this deny the plaintiff the right to enforce a covenant properly and lawfully entered into, it might create uncertainty and distrust in commercial activities and investment in the economy might be negatively affected if Courts were to be seen to interfere willy-nilly with
established practices, see: Saunderson, parr. [2] and [3].
72.In considering these rights, the Court is called upon to take all
relevant information into account. These factors include the value of
the bonded property; the past history of payments made by the debtor; the amount outstanding on the bond; any assets other than

the immovable property the debtor might possess, particularly movable assets capable of easy attachment and sale in execution; any
other debts that the bondholder is aware of, such as arrear rates and municipal taxes; whether the debtor is employed or not etc.
73.It may be difficult to obtain all relevant facts, as has been the case in
this matter.
74.The further problem that presents itself is the fact that the average
	first time house owner who falls in arrears with his bond repayments
and faces eviction because the financial service provider that lent and advanced the funds to acquire the immovable property has called
up the bond, would only in the rarest of instances enter an appearance to defend when application to execute against the
property is made.
75.In the ordinary course of events this would leave the court to make enquiries into the debtor's ability to rectify a seemingly inconsequential failure to keep bond instalments up to date and to evade execution thereby.
76. The court is enjoined by the Constitution to ensure that fundamental
	human rights are not infringed. If necessary, it has to act mero motu
to prevent the infringement of constitutionally safeguarded rights: Potgieter v Lid van die Uitvoerende Raad, Gesondheid, Provinsiale
Regering, Gauteng an Andere, 2001 (11) BCLR 1175 (CC). The present case demonstrates just how cumbersome and often ill‑defined such an intervention might become. The issues that must be addressed once the Court is of the view that a constitutional right
may be infringed, should be clearly formulated and defined as narrowly possible.

77.This may be difficult in practice: not every case of this nature can be dealt with as thoroughly at the cost of an NGO as was done in this instance.
78.But the court could and should enquire from the bondholder why a
	small sum that is in arrears on a bond over a moderate property
could not be collected by execution against movable assets. Even if the bond provides for acceleration of the bond upon non-payment, the court is entitled to refuse to grant execution against an
immovable property where the result is so seemingly iniquitous or unfair to the house owner that the enforcement of the full rights to execution would amount to an abuse of the system.
79.Although I am unaware of a decision that is on all fours with the present matter, our Courts have held claims in the High Court that would produce an unfair result, would create undue difficulty to
conduct or settle the claim or brought about an undue exposure to High Court costs as being an abuse of the process: Standard Bank of South Africa v Shiba; Standard Bank of South Africa v Van den Berg
1993 SA (ECD ).
1958D to 159B; Whitfieldv Van Aarde 1993 (1) SA 332
80. This leaves the question unanswered whether section 26 of the Constitution could be infringed if a bondholder calls up the bond because the mortgagee has fallen into arrears while the unpaid
amount is as minute as in this case.
81.1t is clear that it would be in conflict with section 26 of the
Constitution to enforce the right to execute against immovable property and thereby terminate defendants' right to adequate housing
in the present instance.

82. To allow such a result in a country where housing is at a premium and poverty and the legacy of a previous dispensation deny millions the fundamental right to a roof over their head infringes the fundamental right to adequate housing and may also, as was argued by Mr De Villiers, be in conflict with the right to dignity.
83.In addition, a gross unfairness might be perpetrated upon the
	defendants if an enforced sale in execution were to obtain a price
less than the market value, while a controlled sale might obtain a much higher price and leave the defendants with some money after paying plaintiff s claim. If the sale in execution were to render a
price less than the reasonable value of the immovable property, some speculator might score a handsome profit - a not uncommon practice
in matters of this nature, if persistent urban legends are to be believed.
.
84. The insistence upon the right to enforce the execution against the immovable property, the only home the defendants have, under the circumstances where there are easier ways to obtain payment of the
arrears without any prejudice to plaintiff's rights, therefore also constitutes an abuse of the system and the processes of this Court.
85.Every circumstance that does or could constitute an infringement of
	a fundamental right should be capable of a definition of the principle
involved. In this matter this definition presents a challenge because of the many variable circumstances that might arise in individual
cases. It should include the following, (without any claim to finality or comprehensiveness): Whenever a bondholder calls up the bond, or seeks an order declaring the bonded property specially executable,

while the amount in arrears at date of application for judgment is so small that it should readily be capable of settlement by execution against movable assets, taking all circumstances into account, the
declaration of the immovable property as executable would constitute an infringement of the debtor's fundamental right to adequate housing.
86. This is clearly the case in this matter.
87. The court faced with such an application should refuse to grant such an application unless and until the plaintiff has persuaded the court by acceptable evidence that no other reasonable alternative exists to enforce its right.
88. Whether the arrears would be capable of being paid by execution against the debtor's movable assets would depend upon the individual circumstances of each case.
89. The plaintiff raised the allegedly sizable debt the defendants have
	incurred in respect of municipal rates and taxes as one reason why
execution against the immovable property should be allowed. In the absence of any evidence that the local authority is taking steps to enforce the debt this point can not be taken into account at this stage.
90. Should I err in finding that the attempt to enforce the repayment of the full outstanding amount of the bond in the circumstances of this case constitutes an infringement of the defendants', constitutional
right to adequate housing, default judgment should still not be granted. The claim constitutes a prima facie abuse of the right to

claim an outstanding amount that can be easily obtained by way of execution against movable assets.
91.!n addition, the plaintiff has not dealt with the issues raised by the court when the matter was postponed and has in particular. not argued that it has not profited from the transaction with defendants to date.
92.The application to declare the immovable property executable for default judgment for the full amount outstanding on the bond is therefore refused.
93.Judgment is granted in favour of the plaintiff against the defendant for the sum of R 18,46, together with interest at the rate of 10,50% p/a a tempore morae to date of payment; together with costs on the
appropriate magistrate's court scale.
DE LEGE FERENDA
94.!t is clear that courts dealing with applications similar to the present one may often find it difficult and very costly to conduct an enquiry into the facts to inform them whether or not an order declaring the
immovable property executable should be granted or not in spite of
the seemingly small arrears.
95. The plaintiff approaching the court with an application of this nature
should, in the affidavit setting out the arrears as at date of application. for default judgment, set out sufficient facts to persuade the court to grant the prayer that the property be declared executable, along the lines indicated in this judgment.

96.Serious consideration should be given, however, to the creation of a speedy and inexpensive remedy for matters of this nature where the amount in arrears is prima facie too small to warrant the sale of the
debtor's house.
97. The banking and financial services sector should create a
compulsory arbitration process that the Court could invoke by referring the question whether execution against the immovable property should be granted where small amounts are in arrears, to an arbitration tribunal, to be resolved in an informal and speedy procedure. This tribunal should have the power to invoke the principles of restorative justice along the lines set out by Mokgoro J
and Sachs J in Dikoko v Mokhatla (CCT 62/05, not yet reported) at parr [68] and [69] and par [109] and further. Such a tribunal should attempt in the first instance to resolve any problems between the
(
financing house and the debtor, to find ways to pay up any arrears, to make alternative arrangements or to sell the immovable property on the open market; or to take other steps designed to ensure that poor homeowners are not deprived of the roof over their head if this can be avoided by creative co-operation between the debtor and the creditor.
Signed at Pretoria on this 7th day of October 2006.
				
E BERTELSMANN
Judge of the High Court

Heard on:
22105/2006
F or the Plaintiff:	Adv Salme M Maritz instructed by Messrs Muller
	Mostert & Partners Clo Macrobert Inc, Pretoria
For the Defendants:	Adv N De Villiers, Pretoria
Date of Judgment:	01/11/2006