Petrus Johannes Bestbier and Others v Nedbank Limited

The appellants were trustees of the Goede Hoop Trust, which owned a wine estate used both commercially and as a residence by trust beneficiaries and farmworkers. Nedbank advanced commercial loan facilities to the trust, secured by nine mortgage bonds over the property. The trust defaulted on its obligations. After litigation was instituted, the parties concluded a settlement agreement in which the appellants admitted liability, consented to judgment, agreed to a reserve price, and consented to the property being declared specially executable if they failed to pay or privately sell the property. The appellants failed to comply with the settlement and later opposed Nedbank’s application for judgment by consent, contending that rule 46A of the Uniform Rules of Court applied because the property was occupied as a primary residence by trust beneficiaries and employees.

The appeal was dismissed with costs, including the costs of two counsel. The High Court’s order granting judgment in favour of Nedbank and declaring the property specially executable was confirmed.

The case clarifies the scope of rule 46A by confirming that trust-owned residential property is not automatically excluded from its protection. It affirms that courts must consider the position of trust beneficiaries occupying property as a primary residence, while also emphasising that section 26 is not implicated in every execution against immovable property, particularly in commercial contexts where no risk of homelessness is shown.