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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 08/00146

In the matter between:

STANDARD BANK OF SA LTD Plaintiff/Applicant

and

SALALIDIS KOSMAS PANAYIOTTS Defendant/Respondent

J U D G M E N T

MASIPA J:

INTRODUCTION

This is an application for summary judgment.

[1] Plaintiff’s claim is based on a mortgage agreement entered into between the parties on 2^nd June 2006 (for almost four million rand) and registered over Erf 86 Quellerina Township, Registration Division I.Q., Province of Gauteng and held by Deed of Transfer T9469/2003 (“the property”).

[2] The defendant admits his indebtedness to the plaintiff as claimed in the summons and raises as his defence over indebtedness as envisaged by section 79(1) of the National Credit Act, No 34 of 2005 (“the NCA”).

[3] The defendant alleges that he is over indebted as defined in section 79(1) of the NCA and seeks an order in terms of section 85(a) alternatively in terms of section 85(b) of the NCA.

[4] It is not disputed that the NCA applies to the agreement in question. In terms of Item 4(2) of Schedule 3 to the NCA (the transitional provisions), the provisions of Part D of Chapter 4 of NCA (section 78 to 88) apply to a pre-existing credit agreement to the extent that it does not concern reckless credit. No allegations of credit recklessness have been made.

[5] The defendant specifically concedes that:

1. The plaintiff’s papers correctly reflect his indebtedness and;

2. The plaintiff complied with section 129 of the NCA (which is a pre-requisite for the institution of legal proceedings).

[6] THE RELEVANT PROVISIONS OF THE NCA

6.1 Section 79.

Section 79 defines when a consumer is over-indebted. The section provides as follows:

“79 Over-indebtedness

(1) A consumer is over-indebted if the preponderance of available information at the time a determination is made indicates that the particular consumer is or will be unable to satisfy in a timely manner all the obligations under all the credit agreements to which the consumer is a party, having regard to that consumer’s-

1. financial means, prospects and obligations; and

2. probable propensity to satisfy in a timely manner all the obligations under all the credit agreements to which the consumer is a party, as indicated by the consumer’s history of debt repayment.

(2) When a determination is to be made whether a consumer is over-debted or not, the person making the determinations must apply the criteria set out in subsection (1) as they exist at the time the determination is being made.

(3) When making a determination in terms of this section, the value of-

1. Any credit facility is the settlement value at that time under that credit facility; and

2. Any credit agreement is_

1. the settlement value of the credit agreement that it guarantees, if the guarantor has been called upon to honour that guarantee; of

2. the settlement value of the credit agreement that it guarantees, discounted by a prescribed factor.”

[7] The National Credit Regulations, 2006 (“the Regulations”) promulgated under the NCA provide that a debt counsellor, when assessing the consumer’s application for a debt review, must refer to section 79 and further consider the following:

“(a) A consumer is over-indebted if his/her total monthly debt payments exceed the balance derived by deducting his/her minimum living expenses from his/her net income.

(b) Net income is calculated by deducting from the gross income, statutory deductions and other deductions that are made as a condition of employment;

(c) Minimum living expenses are based upon a budget provided by the consumer, adjusted by the debt counsellor with reference to guidelines issued by the National Credit Regulator.”

[8] A party (the consumer) who raises a defence of over-indebtedness must plead and prove the defence, which includes proving that he is over-indebted as envisaged in section 79 of the NCA.

[9] Having regard to the wording of section 79, such proof must inevitably involve details of inter alia, the consumer’s financial means, prospects and obligations. Financial means would include not only income and expenses, but also assets and liabilities. Prospects would include prospects of improving the consumer’s financial position, such as increases, and even, liquidating assets.

[10] In the case of an instalment agreement, secured loan, lease or mortgage agreement (all of which involves goods as the subject matter of the agreement), the consumer’s financial means and prospects must include the prospect of selling the goods in order to reduce the consumer’s indebtedness.

[11] Section 85

11.1 Section 85 of the NCA sets out the two possible ways in which a court may come to the assistance of a consumer who cannot pay a debt, the payment of which he has been sued for.

11.2 It provides as follows:

“85. Court may declare and relieve over-indebtedness

Despite any provision of law or agreement to the contrary, in any court proceedings in which a credit agreement is being considered, if it is alleged that the consumer under a credit agreement is over-indebted, the court may-

(a) Refer the matter directly to a debt counsellor with a request that the debt counsellor evaluate the consumer’s circumstances and make a recommendation to the court in terms of section 86(7);

(b) Declare that the consumer is over-indebted, as determined in accordance with this part, and make any order contemplated in section 87 to relieve the consumer’s over-indebtedness.”

[12] An action for the balance outstanding under a bond is clearly “court proceedings in which a credit agreement is being considered”, as is a summary judgment application. In the latter case, the indebtedness must be admitted before a court may exercise its powers under section 85 forthwith.

[13] Referral to debt counsellor.

13.1 Section 86(7) provides for the debt counsellor, after receiving an application, to declare the consumer over-indebted, to make certain recommendations to the Magistrates’ Court

[14] Section 86(7)(c) reads:

“(7) If, as a result of an assessment conducted in terms of sub-section (6), a debt counsellor reasonably concludes that-

1. …

2. …

3. The consumer is over-indebted, the debt counsellor may issue a proposal recommending that the Magistrates’ Court make either or both of the following orders-

1. That one or more of the consumer’s credit agreements be declared to be reckless credit, if the debt counsellor has concluded that those agreements appear to be reckless;

2. That one or more of the consumer’s obligations be rearranged by-

(aa) Extending the period of the agreement and reducing the amount of each payment due accordingly;

(bb) Postponing during a specified period the dates on which payments are due under the agreement.

(cc) Extending the period of the agreement and postponing during a specified period the dates on which payments are due under the agreement;

(dd) Recalculating the consumer’s obligations because of contraventions of Part A or B of Chapter 5, or Part A of Chapter 6.”

[15] The NCA makes frequent reference to the Magistrates’Court, and in other places simply to “the court”. The distinction is clearly deliberate, and the expression “court” would therefore not be limited to the Magistrates’ Court.

[16] Section 86(7)(c) makes it clear that the debt counsellor must make his or her recommendation to the Magistrates’ Court, and it is that court which must make the orders provided for in that sub-section.

[17] By contrast, section 85(a) requires the debt counsellor to make a recommendation “to the court”, which is not limited to the Magistrates’ Court and, in context, is clearly a reference to the court which referred the matter to the debt counsellor. Accordingly, if the High Court refers the matter directly to a debt counsellor, the recommendation would be made to the High Court.

[18] Any other interpretation could lead to absurdity, since, if different courts were involved, a Magistrates’ Court would be adjudicating a matter whilst it is pending in the High Court. The element of policing would also be problematic, since the High Court would not necessarily know if its request has been heeded and carried out in the Magistrates’ Court.

[19] The effect of section 85(a) is therefore that a High Court, if it refers the matter directly to a debt counsellor, would have to receive the debt counsellor’s recommendation and deal with the matter, as would a Magistrates’ Court, making an order in terms of section 86(7)(c).

[20] Declaring the consumer to be over-indebted.

Section 87 allows the Magistrates’ Court to re-arrange a consumer’s obligations. The relevant parts of this section read:

“87 Magistrates’ Court may re-arrange consumer’s obligations.

(1) If a debt counsellor makes a proposal to the magistrates’ court in terms of section 86(8)(b), or a consumer applies to the magistrates’ court in terms of section 86(9), the magistrates’ court must conduct a hearing and, having regard to the proposal and information before it and the consumer’s financial means, prospects and obligations, may-

(a) Reject the recommendation or application as the case may be or;

(b) make-

1. an order declaring any credit agreement to be reckless, and an order contemplated in section 83(2) or (3), if the magistrates’ court concludes that the agreement is reckless;

2. an order re-arranging the consumer’s obligations in any manner contemplated in section 86(7)(c)(ii); or

3. both orders contemplated in sub-paragraph (i) and (ii).

2…..”

[21] Whilst section 87 applies to the Magistrates’ Court only, the incorporation by reference in section 85, of “any order contemplated in section 87”, extends the power to conduct the hearing and to make the order re-arranging the consumer’s obligations to the court in which the defence has been raised.

[22] The defence raised by the defendant raises a concern that the High Court might be turned into a glorified section 65 court.

[23] If, therefore, the High Court declares the consumer to be over-indebted, it may make an order re-arranging the consumer’s obligations by, for instance, extending the period of the agreement and reducing the amount of each payment due accordingly.

[24] The powers given to the court under section 85 arise “if it is alleged that the consumer under a credit agreement is over-indebted”. Clearly, the mere allegation of over-indebtedness can never be sufficient. The test would be that such over-indebtedness should be established on a balance of probabilities. This is supported by section 79(1), which refers to “the preponderance of available information at the time a determination is made”.

[25] THE EXERCISE OF A COURT’S DISCRETION.

Section 85 provides the Court with discretion. This simply means the Court may or may not deal with the matter as provided for in section 85(a) and (b).

[26] The question then arises as to when the Court should exercise its discretion in favour of the defendant.

Section 86(1) provides for the consumer to apply (voluntarily) to a debt counsellor to have such consumer declared over-indebted.

[27] Section 86 (2) provides as follows:-

”(2) An application in terms of this section may not be made in respect of, and does not apply to, a particular credit agreement if, at the time of that application, the credit provider under that agreement has proceeded to take steps contemplated in section 129 to enforce the agreement.”

[28] Effectively then, the consumer may not approach a debt counsellor where there is pending litigation, but may ask the court to refer the matter to a debt counsellor. Having failed to avail himself or herself the opportunity to voluntarily approach a debt counsellor prior to litigation, it follows that the consumer must at least explain that failure to the court in asking the court to exercise its discretion.

[29] The explanation is important for a number of reasons:-

The NCA provides a simple, inexpensive and effective procedure for debt restructuring in section 86. These provisions were obviously designed to expedite and to simplify the procedure relating to debt restructuring. The aim is further to avoid the necessity of the parties having to resort to the far more costly procedure of applying to the High Court for relief.

[30] It is also undesirable that the High Court should deal with frequent applications for debt restructuring very much along the lines of a court sitting in terms of section 65 of the Magistrates’ Court Act, Act 32 or 1944.

[31] The High Court generally would not entertain a matter where there is another, simple and effective procedure available. (See Troskie v Troskie 1968 (3) SA 369 (W).)

[32] In that matter there was an application under Rule 45(12) requiring the Respondent to appear in court for an investigation under that rule into his financial position, and for such relief “as the court deemed fit to mete out to her in pursuance of that Rule”.

[33] Trollip J assumed, without deciding, that Rule 45(12) could be invoked in cases where a judgment for periodical payments of maintenance had been given. However, he held that the court has a discretion whether or not to adopt this procedure. He found that ample provision had been made by the Maintenance Act, Act 23 of 1963, for enforcement and variation of maintenance orders by the appropriate Magistrates’ Court by means of a simple, inexpensive and effective procedure. He held that “those provisions were obviously designed to expedite and to simplify the procedure relating to maintenance orders, and, above all, to avoid the necessity of the parties having to resort to the far more costly procedure of applying to the Supreme Court for relief. A further object must have been to relieve the Supreme Court from having to deal with the somewhat frequent applications that, in the past, were directed to it to enforce or vary maintenance orders”.

[34] Trollip J, therefore, held that Rule 45(12) should not be used to enforce payment of the arrears of a maintenance order “unless there are good and sufficient circumstances warranting it”. He found that “no exceptional circumstance has been brought to (his) attention”. Consequently, he refused to entertain the application. Counsel for the applicant then requested leave to renew the application on the same papers as supplemented, in the event of the applicant being able to show exceptional circumstances.

[35] The application was refused on the basis that the circumstances in the matter would have to be exceptional before the Supreme Court could entertain them. The learned judge added what “we want to do is to prevent applications of this kind from being brought to the Supreme Court”.

[36] This approach was recently adopted in the unreported judgment in the matter of Firstrand Bank Limited v Olivier SECLD case number 2369/07 handed down on 8^th May 2008. It seems to me, however, that there ought to be a difference between a case, where a party seeks relief as the applicant and where a party has been brought to Court and raises a defence as the defendant. In my view, in cases such as the present where a defendant is forced to come to court to defend himself different principles ought to apply.

[37] CONDONATION APPLICATION.

In casu the defendant seeks condonation for his failure to take timeous advantage of the section 129 notice. It is common cause that although notice was properly served at Erf 86 Quellerina Township it did not come to the notice of the defendant. In my view the reasons set out are sufficient, for the purposes of this judgment. It, therefore, cannot be said that the defendant deliberately ignored the Section 129 notice as he had no knowledge of it. Accordingly condonation is granted.

[38] ANALYSIS OF THE DEFENCE.

To avoid summary judgment a defendant wishing to satisfy the court by affidavit that he has a bona fide defence to the action, shall “disclose” fully the nature and grounds of the defence and the material facts relied upon therefor. (Rule 32(3)(b)).

[39] Not only must such a defendant allege facts which, if proved at the trial, will disclose a defence to the plaintiff’s claim, but he also has to demonstrate that the defence is bona fide. (Van Niekerk et al Summary Judgment: a Practical Guide, paragraph 9.5.4).

[40] The test of bona fide means that the defendant’s allegations ought not to be inherently and seriously unconvincing. (Breitenbach v Fiat SA (Edms) Bpk 1976(2) SA 226 (T) at 228B.)

[41] Counsel for the plaintiff submitted that the defendant had fallen short of what was required of him.

[42] It was submitted that inter alia, the defendant had set out insufficient facts to show that he is over-indebted as envisaged in section 79 and that he is entitled to the relief set out in section 85. In addition, he failed to show that his defence is bona fide, it was argued. In the alternative counsel for the plaintiff submitted that the defence is set out with such vagueness and baldness that the facts do not amount to a bona fide defence.

[43] THE NATURE AND GROUNDS OF THE DEFENCE AND MATERIAL FACTS RELIED UPON.

The background to the defendant’s alleged over-indebtedness is summarised in his affidavit resisting summary judgment as well as in a supplementary affidavit filed six months later with new facts.

[44] He states that he is employed in a family jewellery business under the name Angelo’s Manufacturing Jewellers. The business is run by two partners, his father and his mother.

[45] From 1993 until 2005 the business was conducted in Rosebank and had a turnover of between one million and one and a half million rand. After the business had been robbed three time a decision was taken to move it to Michael Angelo Towers in Sandton.

[46] The change of venue and moving costs amounted to nearly a million rand. Trading in the new location commenced in December 2005 but the turn over dropped to about R100 000.00 per month. This was still the position in March 2008. The projected turnover however, was a million rand by September 2008. Meanwhile the defendant’s salary also dropped from R65 000.00 to R22 000.00.

[47] FINANCIAL MEANS, PROPECTS AND OBLIGATIONS.

The defendant is currently employed and earns R22 000.00 per month.

The defendant states:

“….although I did not take out the loan with the Plaintiff with a commercial purpose directly in mind, I have long cherished the idea to sell the Quellerina house by private treaty. This would realise a considerable amount, well in excess of the original purchase price. If, however, the house is sold by way of a forced sale, my financial position will be dramatically worsened. I believe that a forced sale would not only not be in my interest (and that of my family), but also not in the Plaintiff’s interests”.

[48] The defendant states further that if the plaintiff was allowed to foreclose on the loan the plaintiff would never realise the value of the Quellerina property on auction. This meant a sizeable amount of the debt would still be owed to the plaintiff. He states that if the court were to decide the matter in his favour he would be able to refurbish the property as planned, sell the property at a considerable amount and then pay to the plaintiff what he owes. He states further that he has always serviced his loan promptly and if given the ‘breathing space’ as contemplated in the Act, he would be able to ‘catch up’ his payments to the plaintiff.

[49] In the supplementary affidavit the defendant re-iterates the basis of his defence.

[50] The relevant portion of the supplementary affidavit reads:

“Changes to the material facts since 14^th March 2008”

5. The property in question is situated at 3 Maluti Avenue, Quellerina, Roodepoort. On Sunday afternoon on 19^th October 2008 I went to inspect the property. I discovered that the north-eastern part of the house had collapsed and fallen some ten metres down the hill. I do not have any personal knowledge of when the collapse occurred.

6. However, I am informed by my attorney that a professional assistant from the office of plaintiff’s attorney attended on site on or about Wednesday 22^nd October and ascertained from the guard that the house had collapsed some five months ago. I accept that this is hearsay, but it is fair to point out the delay in noting the collapsed house since the plaintiff has no right to a replying affidavit. Nonetheless the property is insured.

7. If this Honourable Court grants me leave to defend the matter on the basis of section 85 of the National Credit Act, the amount obtained from the insurance will be employed to pay the plaintiff and thus reduce my expenses and assist with the period allowed during debt counselling. If the insured prefers to repair the property the resale value, I verily believe, will exceed the debt owned thereon.

8. Further to the change of circumstances, I mentioned in my March affidavit that the jewellery business had been set up in the Michael Angelo Towers Sandton. During the middle of May 2008 the family jewellery business moved to 97 11^th Street, Parkmore. This venue is cheaper than the Michael Angelo by approximately seventy thousand rand and thus our profits will increase.

9. Regrettably however the business has been sued by the owners of the Michael Angelo for alleged outstanding rental. We are defending the matter on the basis of misrepresentation and we have lodged a counter claim.”

[51] HAS A CASE BEEN MADE OUT FOR RELIEF IN TERMS OF SECTION 85?

The section vests the court hearing the matter with a discretion whether to proceed in terms of (a) or (b) or whether to grant the relief at all.

It is clear therefore, that the court is not obliged to act simply on the defendant’s allegation of over-indebtedness but has to act judiciously.

Counsel for the defendant submitted that in exercising its discretion the court has to bear in mind the purpose of the NCA, which was to protect not only the poor but also the rich against their financial folly.

[52] It is so that the NCA is for the benefit of every consumer who can prove that he is over-indebted as contemplated in Section 79 of the NCA. More importantly, however, is whether the consumer wanting to take advantage of the NCA provisions has made proper disclosure to enable a court to exercise its discretion properly.

[53] In exercising its discretion the court ought to bear in mind that although the relief sought in terms of the NCA is sui generis in a summary judgment application one cannot ignore the requirements of Rule 32 of the Uniform Rules of Court completely.

[54] I, therefore, am unable to agree with Erasmus J in Firstrand Bank supra where he states that it is inappropriate to superimpose the requirements of Rule 32(3) on an application in terms of Section 85 of the NCA. In my view to ignore the Rule 32 requirements completely would be grossly unfair to the plaintiff. After all it is within the context of a summary judgment application that the defence in terms of the NCA provisions has been raised.

[55] The application in terms of Section 85 must still be bona fide and not raised solely as a delaying tactic. The debtor must provide sufficient information to support his allegation of over-indebtedness. This means a consumer who raises a defence of over-indebtedness must plead and prove, on a balance of probabilities that he is over-indebted as envisaged in section 79 of the NCA.

[56] In casu the defendant’s allegations regarding his over-indebtedness are inherently and seriously unconvincing. I say this for the following reasons:

The defendant has set out insufficient facts to show that he is over-indebted as envisaged in section 79. In addition such facts are so vague and bald that they do not amount to a bona fide defence.

[57] The basis of the alleged over-indebtedness seems to boil down to the following:

[58] The defendant cannot afford to keep up with the payment to the plaintiff because his salary, at R22 000.00 per month, is not sufficient to allow him to properly meet his financial obligations towards the plaintiff.

[59] He does not state how long this position endured before he fell into arrears with his payment. Neither does he say how long the position is likely to last before things get back to normal.

[60] In my view it does not seem likely that the defendant will recover financially very soon.

[61] I say this for the following reason. The family business is the only source of income. However, it is currently going through financial difficulties of its own.

[62] Having been robbed three times it had to relocate thereby incurring more expenses which resulted, inter alia, in a dramatic drop in turn over. Currently the family business is being sued by the former land lord (the business having moved once more) for alleged rental arrears.

[63] There is not the slightest indication on the papers if and when the family business may recover.

[64] The allegation that the family business is defending the action and has a counterclaim based on misrepresentation does not take the matter further for the reasons stated hereunder:

64.1 Both the affidavit resisting summary judgment and the supplementary affidavit are short on details. The defendant has not set out inter alia, the assets and liabilities of the business. In my view where a family business is the source of income a proper financial picture ought to be disclosed fully to enable the court to decide, inter alia, whether the business is viable.

64.2 The lack of detail is a common theme throughout the defendant’s papers. It is not stated, for instance, how much the business is being sued for nor is there any amount stated in respect of the counterclaim.

64.3 In addition to the above the supplementary affidavit is silent on whether or not the projected turn over had been reached when the business relocated from Michael Angelo Towers Sandton to Parkmore, the latest location. There is also no mention of when, in the light of the latest developments, the turn over is likely to improve and return to its former position, if at all. The paucity of information in this regard, therefore, makes it difficult for this court to use its discretion in favour of the defendant.

[65] The defendant’s expenditure also shows the same lack of detail and clarity.

[66] His current obligations are stated as follows:

Average monthly living expenses including rent

on the defendant’s apartment R10 000.00

Old Mutual R 4 800.00

Discovery R 653.00

Telephone account R 2 000.00

Cellphone R 3 000.00

[67] The first item of R10 000.00 is a globular figure. No attempt has been made to break this down. This court has, therefore, been left in the dark as to what portion goes towards rental and how much is for groceries, clothing etc. In addition it is not stated what the amount paid to Old Mutual is for.

[68] More worrisome, however, is that the defendant’s current obligations do not include his obligations to the plaintiff nor is there any indication how much of his present salary the defendant is prepared to offer as payment towards reducing his indebtness to the plaintiff.

[69] PROSPECTS AND OBLIGATIONS

The defendant’s financial position seems to be linked to that of the family business as there is no indication of another source of income now or in the future. It can safely be concluded, therefore, that as long as the family business is experiencing financial difficulties the defendant’s financial position is unlikely to improve.

[70] Furthermore the defendant’s wife is not working and there is nothing to indicate that she may be looking for another job apart from waiting for her agent to “find a client requiring a shoot”.

[71] That then leaves the defendant with the property which is the subject of the agreement.

[72] The property is Erf 86 Quellerina Township in Roodepoort and measures one thousand and thirty square metres.

[73] The Certificate of Balance from the plaintiff shows that the defendant is indebted to the plaintiff in the amount of R3 466 081.93 (see Annexure “C”). On 30^th October 2007 the total amount due in arrears was R246 610.45 (see Annexure “B”).

[74] The defendant alleges that the property is under refurbishment and once the refurbishment is complete the property is likely to sell for a “considerable amount well in excess of the original purchase price”.

[75] What the defendant has failed to state is how long the refurbishment is likely to take; the current value of the property; how much it is likely to sell for once it has been refurbished; the costs of the refurbishment and more importantly where the money would come from.

[76] Again this lack of important detail casts serious doubt on the bona fides of the defendant. What is puzzling, however, is that the defendant’s allegations of refurbishing the property is contradictory to his alleged over-indebtness.

[77] In any event my view is that the NCA does not envisage that a consumer may claim to be over-indebted whilst at the same time retaining possession of the goods which form the subject matter of the agreement. Such goods should be sold to reduce the defendant’s indebtedness.

[78] There is another consideration with regard to the property, and it is this: The property is not used by the defendant as his residence so it cannot be said that the defendant will be greatly prejudiced if the property is sold. I am also mindful of the fact that even on the defendant’s own version the property is neglected as it is clear that the defendant only knew of the damage to the property months after the event. The plaintiff can certainly not be expected so sit back and allow its interests to be eroded while the defendant tries his hand at investment. It seems to me that the longer the property remains in the hands of the defendant the more likely the plaintiff will suffer prejudice.

[79] Considerations of fairness require that the circumstances of both the defendant and the plaintiff be given equal considerations. Where it is clear that the credit provider is likely to be greatly prejudiced if the protection measures provided by the provisions of the NCA are implemented courts should be reluctant to assist the defendant.

[80] In the present case the long-term plans and intentions of the defendant to improve the home and make a profit cannot be allowed to rob the plaintiff of what it is legally entitled to – a judgment in its favour when the defendant has clearly shown no defence.

[81] The purpose of the NCA is inter alia, to provide for the debt re-organisation of a consumer who is over-indebted, thereby affording such consumer the opportunity to survive the immediate consequences of his financial distress and to achieve a manageable financial position (see Firstrand Bank supra). In casu the defendant has failed to show any financial distress on his part.

[82] Having thoroughly considered the matter I can only conclude that the defence is merely a blatant stratagem to delay the plaintiff’s claim and that it is not bona fide.

[83] In my view the defendant has failed to make out a case for the relief that he seeks.

[84] In the result summary judgment is granted in favour of the plaintiff against the defendant for:-

1. The balance of R3 466 081.93.

2. Interest on R3 466 081.93 at the rate of 12.05% per annum from 6^th December 2007 to date of final payment.

3. Insurance premiums of R1 545.69 from 6^th December 2007 to the date that the property is sold in execution.

4. That the property known as Erf 86 Quellerina Township Registration Division I.Q. Province of Gauteng, measuring 1030 square metres in extent and held under Deed of Transfer T9469/2003 be declared specifically executable.

5. Costs on attorney and client scale.

________________

T M MASIPA

JUDGE OF THE HIGH COURT.

COUNSEL FOR THE PLAINTIFF: A BESTER

F BEZUIDENHOUT

INSTRUCTED BY: BLAKE BESTER INC

COUNSEL FOR THE DEFENDANT: N J TEE

INSTRUCTED BY: HIRSCHOWITZ FLIONIS

ATTORNEYS

DATE OF HEARING: 27 OCTOBER 2008

DATE OF JUDGMENT 6 FEBRUARY 2009

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