Standard Bank of South Africa Limited v Marshall and Others

The appellant bank instituted actions against several borrowers who had defaulted on loans secured by mortgage bonds over their residential properties. The bank sought default judgments for the outstanding debts together with orders declaring the mortgaged properties specially executable. In the Cape High Court, Blignault J granted judgment for the debts but refused to declare the properties executable, holding that the summonses were constitutionally deficient for failing to allege facts justifying execution under section 26 of the Constitution, relying on Jaftha v Schoeman. The bank appealed to the Supreme Court of Appeal.

The appeal was upheld. The orders of the court below were supplemented by declaring the mortgaged properties specially executable. A prospective practice direction was issued requiring future summonses seeking execution against immovable property to alert defendants to their rights under section 26(1) of the Constitution.

The case clarified the limited reach of Jaftha v Schoeman and restored certainty in mortgage enforcement proceedings. It confirmed that execution against mortgaged property does not automatically infringe the constitutional right of access to adequate housing and that mortgagees are not required to justify execution in advance in their pleadings. The judgment is a cornerstone of South African mortgage and execution law and stabilised credit markets by affirming the enforceability of mortgage bonds.