Court halts auction just days before owner was due to lose his home
The Gauteng High Court, Johannesburg, intervened and halted the sale of a sectional title home – it had been scheduled for auction later this week.
Canicias Ndlovu was about to lose his primary property worth slightly more than R700,000 over a R50,000 levy debt. Judge Stuart Wilson stayed an order granted earlier by another judge, which authorised the sale of Ndlovu’s home in execution of a judgment from the Kempton Park Magistrate’s Court. He also set aside a writ of execution that permitted the Sheriff to sell the house on auction.
Ndlovu owns a sectional title unit under the Ciloas Body Corporate. Ciloas obtained a Magistrates’ Court judgment directing Ndlovu to pay just over R50,000, reportedly in arrear levies and other charges. Judge Wilson noted that Ciloas waited almost four years after obtaining the judgment to seek execution.
Ndlovu had instructed an attorney to oppose the application, but no answering affidavit was filed, and the application was treated as unopposed. After obtaining leave to execute against Ndlovu’s home, Ciloas scheduled a sale-in-execution for February 5.
Ndlovu claimed he was unaware of that order until he instructed his current attorneys to stay the sale. Judge Wilson found that claim difficult to assess but acknowledged that had he not stayed the order, the sale would have proceeded.
“Whatever criticism might be levelled at Mr Ndlovu for dragging his feet in bringing this application, the stay he sought was plainly urgent,” Judge Wilson remarked. The stay application was sought pending the outcome of an application to rescind the earlier order. Ndlovu explained that his previous attorney never informed him that no opposing papers were filed, leading him to believe the matter was being defended.
Judge Wilson stated that the lack of an answering affidavit cannot imply that Ndlovu was in wilful default. The court noted that while Ndlovu had previously let the unit out, he had moved back in, making it his primary residence.
Judge Wilson pointed out that the value of Ndlovu’s home is around fourteen times the value of the judgment debt, and Ciloas waited four years before seeking execution. Ndlovu told the court that although he had fallen behind with his levies, he had always made substantial payments towards his arrears. He had made lump sum payments to Ciloas of up to R80,000 and had paid his monthly account in full and on time for the last three years.
The judge commented that this suggests there are means to recover the debt rather than selling the home. It raises the possibility that Ndlovu has paid his debts since the Magistrates’ Court judgment was issued.
Ciloas argued that the judgment debt was a small portion of a larger debt owed and claimed Ndlovu had signed an acknowledgment of debt. However, Judge Wilson clarified that Ciloas was not given leave to execute on that acknowledgment but rather on the judgment debt.
He stated that Ndlovu should be allowed to apply for an order to overturn the original order, and for this purpose, the execution should be halted for now. If the rescission application is unsuccessful, Ciloas’ attorneys need only issue a fresh writ to sell the home.
zelda.venter@inl.co.za