Baloyi N.O. and Others v Pawn Stars CC and Another

The applicants, Mr and Mrs Baloyi, acted both personally and as trustees of the Navuyeriwa Business Trust, which owned a residential property where they lived with their minor children. The Trust borrowed R870 000 from Pawn Stars CC, secured by a mortgage bond over the property, with penalty fees applicable on default. After default, Pawn Stars obtained default judgment declaring the property specially executable. That judgment was later rescinded by consent, and a consent order was granted providing for repayment terms and stipulating that, upon default, the property would become specially executable without further judicial process. The Trust defaulted again, a warrant of execution was issued, and a sale in execution was scheduled. The applicants sought to interdict the sale and to vary or set aside the consent order, arguing that it was granted without compliance with rule 46A of the Uniform Rules of Court, which requires judicial oversight when executing against residential immovable property. Their applications were dismissed in the High Court, and subsequent attempts to appeal failed, leading to an application for leave to appeal to the Constitutional Court.

The application for leave to appeal was dismissed, and the applicants were ordered to pay the first respondent’s costs.

This case clarifies the limits of the Constitutional Court’s jurisdiction and confirms that issues not reasonably necessary for the determination of a dispute cannot ground constitutional jurisdiction. It also elucidates the scope of rule 46A, confirming that it applies only to creditor-initiated applications for execution against residential property and not automatically to consent orders or rescission proceedings. The judgment underscores the binding nature of consent orders and the high threshold for their variation or rescission.