including interest due on it, was secured by a mortgaged bond registered

against the property.

2 The first and second respondents fell into arrears on their repayments.

Standard Bank now seeks judgment for the full amount outstanding on the

loan agreement (just under R950 000 at the time this application was

instituted, but now in excess of R1.2 million), and an order declaring the

property specially executable. The first respondent, Mr. Britz, does not oppose

the application, but the second respondent, Mr. Sequeira, does. The third

respondent, Mrs. Sequeira, is Mr. Sequeira’s wife, to whom he is married in

community of property. She too opposes the application. The Sequeiras

married in 2017, a decade after the loan agreement was struck between

Standard Bank, Mr. Britz and Mr. Sequeira.

3 It was originally contended that this application should have been brought in

the Free State, because that is where the property is. However, in light of the

fact that the loan agreement was concluded in Gauteng, and the fact that all

the parties to the loan agreement are domiciled in Gauteng, the objection to

jurisdiction was not persisted with.

4 The Sequeiras instead oppose Standard Bank’s application on four grounds.

First, they say that Standard Bank’s allegation, at paragraph 20 of its founding

affidavit, that the principal sum lent under the loan agreement was advanced

in “2002”, renders the entire application fatally defective. Second, they say that

Uniform Rule 46A, which helps regulate the procedure for executing against

residential property in this court, is unconstitutional because it breaches their

right to privacy. Third, they say that, even if Rule 46A is constitutional, the Rule

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 requires that a money judgment be obtained before an application to execute

on that judgment can be brought. Fourth, they say that Standard Bank has not

complied with section 129 of the National Credit Act 34 of 2005, in that the

notice required under its terms was not delivered to Mr. Sequeira in the

manner required by section 130 of the Act, and in that no attempt was made

to deliver the notice to Mrs. Sequeira at all.

5 None of these arguments sustains a defence to Standard Bank’s claim. Some

are more brazenly opportunistic than others, but they are all frivolous. I

address each in turn.

The allegation that the loan was advanced in 2002

6 It is common cause that the loan agreement was struck and the mortgage

bond was registered in 2007. That being so, the Sequeiras argue, Standard

Bank’s allegation that the loan amount was advanced in 2002 cannot be

correct. Standard Bank agrees, and explains in its replying affidavit that the

reference to 2002 in the founding affidavit was a typographical error. Although

it does not expressly say that the loan was advanced in 2007, that is plainly

Standard Bank’s case.

7 Any sensible litigant would have left matters there. But not the Sequeiras.

They claim that the typographical error is fatal to Standard Bank’s claim. They

do not dispute that the error was no more than a typographical error. Nor do

they say that the loan amount was never advanced. Nor do they take issue

with any of the documents annexed to Standard Bank’s papers in which the

balance owing on the loan agreement is set out and accounted for. They rely

merely on the hyper-formalistic contention that the failure to allege the correct
3
 date on which the loan amount was advanced in the founding affidavit is fatal

to the claim. The result, they say, is that, on Standard Bank’s founding

affidavit, there is no cause of action made out, and that Standard Bank’s

application must fail as a result.

8 In this they are mistaken. The question is not whether the affidavits are perfect

in every respect, but whether, on a conspectus of all the facts set out in the

application papers, there is a dispute material to the relief sought. Here there

is none. There is no serious dispute that the loan amount was advanced in

2007, and that the allegation that it was advanced in 2002 rather than 2007

was a typographical error. There the matter ends.

The Rule 46A arguments

9 The challenge to Rule 46A is stillborn. This is not just because none of the

responsible state organs or any of the major banks who would clearly be

interested in such a challenge have been joined. Nor is it merely because the

constitutional validity of the Rule has not been placed in issue by means of a

formal application. The fundamental defect in the challenge is that it is

misdirected.

10 The Sequeiras say that the power conferred by Rule 46A (8) (b) – that a court

may order that information be provided quantifying the rates or levies due on

residential property in peril of execution – breaches their right to privacy. Even

if I were to overlook the fact that no order under Rule 46A (8) (b) is sought or

has been granted in this case, the challenge would have to fail because

section 6 (1) (e) of Protection of Personal Information Act 4 of 2013, which

regulates and gives effect to the right to privacy in section 14 of the

before a court from the protections otherwise afforded by the Act. The source

of the Sequeiras’ complaint is that exemption, not Rule 46A (8) (b). The failure

to challenge the Act precludes any successful challenge to the Rule.

11 The Sequeiras’ second argument based on Rule 46A is based on the use of

the words “execution creditor” and “judgment debtor” in Rule 46A (1). Rule

46A (1) states that the Rule applies “whenever an execution creditor seeks to

execute against the residential immovable property of a judgment debtor”. The

Sequeiras argue that Standard Bank cannot be an “execution creditor”, nor

can they be “judgment debtors”, in the absence of a money judgment actually

having been obtained on the loan agreement. It follows, they say, that

Standard Bank is precluded from seeking the judgment for the amount

outstanding on the loan agreement and execution against the property at the

same time.

12 Mr. Meyer, who appeared for the Sequeiras, accepted that the Full Court’s

decision in Absa Bank v Mokebe 2018 (6) SA 492 (GJ) presents an

insuperable obstacle to the success of this argument before me. In that case,

the Full Court decided that the application for a money judgment on a

mortgage bond and the application for leave to execute against mortgaged

property being used as a primary residence should generally be heard and

determined simultaneously. This is in part because the grant of a money

judgment separately from an order for special execution risks ruling out the

possibility of avoiding execution by finding other means to pay the debt due

(see Mokebe, paragraph 22).

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13 Mokebe is, of course, binding on me, and the Sequeiras have made out no

case for being excepted from the general rule that it imposes. Mr. Meyer

nonetheless asked that I refer the Sequeiras’ case to the Judge President of

this Division, so that he can establish another Full Court to reconsider the

correctness of Mokebe.

14 Assuming that I have such a power (I do not), the Sequeiras have not shown

that there is any prospect that Mokebe is wrong. Much like their argument

based on Standard Bank’s typographical error, the contention depends on my

isolating a particular word or phrase while ignoring the context in which the

word or phrase appears. Assessed in context, Rule 46A (1) uses the words

“creditor” and “debtor” to refer to parties who would be entitled to specially

execute, or be subject to special execution, against residential property to

satisfy the judgment once it is granted. There is nothing in the Rule 46A (1)

that suggests that its purpose is to create a two stage process, in which the

proportionality of execution is only considered once a money judgment is

granted. As the court in Mokebe found, the Rule generally has the opposite

purpose: to ensure that, unless execution can be justified, a money judgment

is not granted.

The section 129 arguments

15 Mr. Sequeira accepts that a notice in terms of section 129 of the National

Credit Act was dispatched to him by email, and by registered mail to the Post

Office Box he nominated in the mortgage bond. He does not suggest that

these modes of delivery were insufficient to comply with section 130 of the

Act. Nor does he actually say that he did not receive the notice. His argument

6
 boils down to this: an additional section 129 notice was sent to the post office

covering the physical address he nominated in the mortgage bond, but the

document tracing the delivery of the notice does not specifically reflect that the

post office sent out a notification to his physical address alerting him to the

fact that a notice from Standard Bank was awaiting his collection. It reflects

merely that the notice was returned to Standard Bank, and was not collected.

16 It seems to me that the delivery requirement set out in sections 129 and 130

of the Act was clearly fulfilled in these circumstances: on a balance of

probabilities, the section 129 notice clearly reached Mr. Sequeira (see Sebola

v Standard Bank 2012 (5) SA 142 (CC), paragraph 74). Mr. Sequeira does not

suggest otherwise. His reliance on a potential defect in the delivery of one of

the three notices directed to him is precisely the kind of gamesmanship of

which the Constitutional Court ruled out in Kubyana v Standard Bank 2014 (3)

SA 56 (CC), especially at paragraphs 20, 52 and 53.

17 The Sequeiras finally relied on the common cause fact that Standard Bank did

not deliver a section 129 notice to Mrs. Sequeira. Mr. Meyer argued that Mrs.

Sequeira was entitled to the benefit of such a notice because she is married

in community of property to Mr. Sequeira, and is as a result entitled to be

treated as if she was party to the loan agreement. In advancing his case, Mr.

Meyer relied upon the decision in Subramanian v Standard Bank Ltd [2012]

ZAKZPHC 12 (13 March 2012). In that case, Lopes J found that a husband

and wife who had jointly initiated a debt review process under section 86 of

the Act are each separately entitled to notice of the termination of that process,

even if only one of them entered into the credit agreement being reviewed.

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18 The facts in this case are different. Here, there is no debt review process. In

addition, Lopes J set great emphasis on the fact that Standard Bank knew that

the debt review process had been initiated by both spouses. It was accordingly

a straightforward matter for notice of the termination of the review to be given

to both of them. In this case, the loan agreement was entered into by Mr.

Sequeira ten years before he married Mrs. Sequeira. There is no indication on

the papers that either of the Sequeiras told Standard Bank that, by virtue of

their marriage in community of property, they were now co-principal debtors

on the loan agreement. I am at a loss to understand how Standard Bank was

expected to come by this information otherwise. That, it seems to me, is

enough to distinguish this case from Subramanian.

19 Subramanian was later criticised in Motor Finance Corporation v Herbert

[2012] ZAWCHC 35 (24 April 2012), on the basis that a spouse married in

community of property to a “consumer” under section 1 of the National Credit

Act does not thereby become a “consumer” in their own right. Accordingly, the

rights of a “consumer” under the Act cannot accrue to them. I do not think I

need resolve that controversy. The trigger for any obligation Standard Bank

had to deliver a section 129 notice to Mrs. Sequeira is that it knew, or could

reasonably be expected to find out, that she had married Mr. Sequeira in

community of property. That case is not made out, and the point can go no

further.

Order

20 None of the defences raised to Standard Bank’s application can succeed. In

addition, though, I should point out that there is nothing on the papers to

8
HEARD ON: 29 April 2025

DECIDED ON: 5 May 2025

For the Applicant: S Jacobs

For the Second and Third A Meyer

10