Bisnath v Absa Bank Ltd

The case arose from long‑running litigation between Absa Bank Ltd and Mr and Mrs Bisnath, as well as the Gita Family Trust of which they were trustees. The Trust owned immovable property bonded to the Bank, secured further by suretyships executed by the Bisnaths. The Trust defaulted, leading to default judgment and an order declaring the trust property specially executable. The property was sold in execution and later resold by the Bank. Parallel litigation concerned several properties owned personally by the Bisnaths, also bonded to the Bank. After arrears and settlement agreements, the Bank obtained judgment by consent declaring six Bisnath properties specially executable. The Bisnaths and the Trust challenged various aspects of these processes, including alleged misallocation of a payment, alleged defects in the description of the executable property, alleged failure by the Bank to collect rental income, and the validity of the consent judgment.

First appeal dismissed with costs on the attorney‑and‑client scale. Second appeal upheld; the order of Radebe AJ was set aside and replaced with an order discharging the rule nisi.

The case authoritatively clarifies South African common law on the distinction between pledge and mortgage, holding that a mortgagee of immovable property is only obliged to collect and account for fruits if it is in possession. It also confirms a pragmatic approach to property descriptions in execution orders and reinforces the enforceability of consent judgments under settlement agreements.