Executing a debt against residential property : the potential application of rule 46A of the Uniform Rules of Court beyond a literal reading of "property of a judgment debtor"

Abstract

This article examines the field of application of rule 46A of the Uniform Rules of Court, which regulates the procedure for creditors seeking to execute a judgment debt against residential property. The central question concerns the categories of home occupiers covered by rule 46A. The literal wording of the rule appears to limit its application to situations where the property is the home of, and owned by, a “judgment debtor”. However, it is necessary to consider the possible application of the rule to at least two other scenarios. First, does rule 46A apply if the property is owned by a company, close corporation or trust, but is occupied for residential purposes by a natural person who is a shareholder, member or beneficiary of the respective company, close corporation or trust (described, for the purposes of this article, as a “beneficial owner”)? Secondly, must the rule be followed if the property is occupied as a home, not by the judgment debtor, but by a tenant in terms of a lease agreement?