Written by Alisha Naik, Candidate Attorney and checked by Divina Naidoo, Associate
26 November 2020
BACKGROUND
In this case, Investec Bank Ltd (“the Applicant”) sought an order declaring certain immovable property, owned by the Tricour Property Trust (“the Trust”), of which the First and Second Respondents were trustees, to be specially executable as a precursor to satisfying a monetary judgment granted against the Trust – as surety – in February 2015. The Court considered the applicability of Rule 46A of the Uniform Rules of Court (“Rule 46A”) as the First Respondent resided on the property with his wife (“the Second Respondent”) and their two adult children, alleging that it was their primary residence.
The Applicant relied on the dictum in the Mokebe[1] judgment and contended that rule 46A is not applicable as the provisions thereof apply to individual consumers and natural persons, not to trusts and therefore the Applicant proceeded in terms of rule 46, to obtain execution against the immovable property.
The Court considered the Jaftha[2]; Gundwana[3]; and Folscher[4] cases and explored the definitions of “primary residence”, “judgment debtor” and “relevant circumstances” insofar as it relates to Rule 46A. However, none of the aforementioned cases were such that the judgment debtor was a legal entity or a trust – as each case involved immovable property that was the primary residence of a natural person.
Court Held
The court held that Rule 46A is applicable to individuals and natural persons only; and that immovable property owned by a company, a close corporation or a trust, of which the member, shareholder or beneficiary is the beneficial owner, is not protected by the rule even if the immovable property is the shareholder’s, member’s or beneficiary’s only residence.
Furthermore, it held that the provisions of Rule 46A were not applicable as the property sought to be executed against is registered in the name of the Trust and it is irrelevant that the trustee and her children reside on the property and consider it their home. Legal entities and trusts are not capable of residing on property and calling it home as they have ‘no body to be kicked and no soul to be damned‘5. Thus, since the Trust, being the judgment debtor, is not a natural person, the constitutional safeguards are not available to it where execution is sought against its immovable property.
Value
The constitutional considerations required to be taken into account for the protection of judgment debtors apply to individuals and natural persons only. The provisions of rule 46A were not applicable to the trust as owner of the property and the applicant was correct to proceed in terms of rule 46 to obtain execution against its immovable property.
[1] Absa Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ): ..”a preliminary enquiry is necessary to establish whether the judgment debtor is indigent and whether the property is his/her home and the court held that the constitutional considerations do not challenge the judgment creditor’s right to execute but rather cautions courts to have due regard to the impact that this may have on ‘judgment debtors who are poor and at risk of losing their homes.”.
[2] Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC).
[3] Gundwana v Steko Development CC and Others 2011 (3) SA 608 (CC).
[4] FirstRand Bank Ltd v Folscher and Another and Similar Matters 2011 (4) SA 314 (GNP).
