Warning: Defendants may lose their homes for failure to comply with rules 46 and 46a at summary judgment stage

Summary judgment is a mechanism utilised by plaintiffs in action proceedings when it is believed that the defendant does not have a bona fide defence to the plaintiff’s claim and has simply entered an appearance to defend in order to delay the matter. Essentially, it prevents the abuse of the court process by the defendant. On 6 June 2019, the Supreme Court of Appeal (SCA) in the case of NPGS Protection and Security Services CC and Another v FirstRand Bank Ltd (314/2018) [2019] ZASCA 94 had to consider the relationship between summary judgment applications and the requirements established in the Uniform Rules of Court relating to foreclosures on primary residences.

3 Jul 2019 3 min read Dispute Resolution Alert Article

In this case, FirstRand Bank sought payment by NPGS Protection and Security Services CC (NPGS) in terms of a credit facility provided to NPGS as well as payment by Llewellyn Rwaxa (Rwaxa), the sole member of NPGS, who bound himself as surety and co-principal debtor in favour of FirstRand Bank for the debts of NPGS. In addition, FirstRand Bank sought to declare Rwaxa’s primary residence specially executable on the basis that the credit facility provided to NPGS was secured by a mortgage bond registered over Rwaxa’s primary residence. After both NPGS and Rwaxa gave notice of their intention to defend the action, FirstRand Bank applied for summary judgment. Summary judgment was granted by the Johannesburg High Court and the decision was then taken on appeal to the SCA.

In its summons, FirstRand Bank drew Rwaxa’s attention to the provisions of s26 of the Constitution, informing Rwaxa that he may not be evicted from his home, or his home may not be declared executable and sold in execution, without a court order, which could only be granted after a court had considered all the relevant circumstances. The summons drew further attention to the provisions of Rule 46(1)(a)(ii) of the Uniform Rules of Court, which set out in greater detail the protection afforded to a debtor in terms of s26 of the Constitution. Rules 46(1) and 46A afford a judgment debtor an opportunity to oppose the grant of an order of special execution against a residential property.

The SCA held that -

“in the case of an application for summary judgment, provided the creditor has complied with the requirements of rule 46A, there is an onus on the debtor, at the very least, to provide the court with information concerning whether the property is his or her personal residence, whether it is a primary residence, whether there are other means available to discharge the debt and whether there is a disproportionality between the execution and other possible means to exact payment of the judgment debt.”

Rwaxa put forward three superfluous defences in his affidavit opposing summary judgment but was completely silent on the information required for Rules 46 and 46A. From the time of deposing to the affidavit opposing summary judgment to the time of the hearing of the matter in both the High Court and the SCA, Rwaxa failed at all opportunities to provide the court with the necessary information. The appeal against the granting of summary judgment was therefore dismissed.

This judgment neatly summarises the importance for the defendant to set out all relevant facts in an affidavit opposing summary judgment. This burden is further increased in an action or application to have residential property declared specially executable due to the fact that Rules 46 and 46A call on the defendant to put certain information before the court. A defendant should take this burden seriously, as a failure to do so could have dire consequences.

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