REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no: 6032/2012

In the matter between:

and

Heard: 6 November 2012 
Delivered: 12 November 2012
JUDGMENT
SAVAGE AJ
[1] This is an application for summary judgment in which the plaintiff seeks judgment against the defendant in the amount of R1 819 261,10 with interest and costs. The amount is due in terms of a mortgage loan advanced to the defendant against security of two mortgage bonds registered over erf 3947 Betty’s Bay, in respect of which loan the defendant at the date of the summons was R419 520,87 or 39 months of arrears. The plaintiff has complied with its obligations in terms of the National Credit Act 34 of 2005. It seeks an order declaring the immovable property specially executable, conceding that the property constitutes the defendant’s primary residence.

[2] Following the filing of a notice of intention to defend the action, the plaintiff launched the present application for summary judgment.
Grounds of opposition

[4] Consequently, the defendant disputes that Nedbank is the owner of the relevant mortgage bonds in that it was appointed as the ‘managing agent’ charged with collecting bond payments on behalf of a third party to whom the rights were sold and ceded.

[10] In the circumstances, the summary judgment application must succeed.
[11] With regards to the order of special execution sought against the immovable property, the defendant did not raise on the papers that the immovable property constitutes his primary residence. I have applied my mind to the amount in arrears, the period over which the arrears have arisen, the value of the mortgage loan amount, the reference in the particulars of claim to section 26 of the Constitution and rule 46(1) and the fact that the defendant is legally represented in these proceedings. I am satisfied that on a consideration of these factors and given the absence of bad faith or abuse of court process on the part of the plaintiff, an order of special execution against the immovable property is justified.
[12] In the result, I make the following order:
1. Summary judgment is granted as follows against the defendant:
(a) Payment in the amount of R1 819 261,10;
(b) Interest on the aforesaid sum at the rate of 7,20% per annum, calculated daily and compounded monthly from 2 March 2012 to date of payment, both days inclusive;
(c) An order declaring
Erf 3947 Bettys Bay, situate in the Overstrand Municipality, Division Caledon, Province of the Western Cape,
In extent 981 square meters

Held by virtue of Deed of Transfer T60826/2001
to be specially executable;
(d) Costs of suit as between attorney and client. 
K M Savage
Acting Judge of the High Court

Appearances
Plaintiff: Adv W Jonker

Instructed by Minde Shapiro & Smith Inc.

Defendant: Mr Geel

Instructed by Matileze Venter Attorneys