The Durban High Court has ordered the removal of a R660,000 reserve price for the sale in execution of a property following two failed auction attempts.

The court heard that previous sales in execution held in July 2022 and February 2024 had failed to attract bidders, despite attempts to lower or lift the reserve price during the auctions. The property, with an estimated market value of more than R1 million and forced sale value of R1,050,000, remained unsold due to the R660,000 reserve price barrier. 

The property owners’ financial situation had deteriorated significantly since the court ordered that the reserve price be R660,000 nearly four years ago. Their arrears to the Changing Tides 17 (Pty) Ltd had grown to more than R824,270.16, with R375,773.67 representing arrear instalments. Additionally, the couple owed the eThekwini Municipality R412,842.61 as of March 2024.

Judge Robin Mossop SC presided over the reconsideration application brought by Changing Tides, which sought to remove the fixed reserve price that had prevented the successful sale of the couple’s immovable property. 

Changing Tides asked to be permitted to put up the property at a third sale in execution without a reserve price being fixed. In an affidavit, one of the owner’s asked the court to dismiss the application with costs, on the basis that it is procedurally redundant, an abuse of process, and improperly motivated. The court said it would not consider the unsigned affidavit.

Judge Mossop said the owners did not say what must be done about the reserve price.

“This is perhaps understandable given the fact that (they) are not represented,” he said.

Moreover, Judge Mossop emphasized the procedural nature of the reconsideration process under Uniform Rule 46A(9)(c).

 “It seems to me that this sub-rule is simply a procedural tool to enable the establishment of a way forward where the fixed reserve price of a property declared specially executable has not been achieved,” he stated.

The judge clarified that the reconsideration was not an adversarial process.

“The reconsideration prescribed by rule 46A(9)(c) is a procedural requirement; it is not a process that can be opposed. It is a process in which the court must consider any relevant evidence put before it, but the process is not an adversarial one,” Judge Mossop explained.

Considering the mounting financial pressures faced by the owners, Judge Mossop stressed the urgency of disposing of the property. He considered the lapse of time since the order of R660,000 and the worsening indebtedness of the couple. 

“It appears to me to be imperative that the property be disposed of as quickly as possible,” Judge Mossop ruled.

No costs order was made in the matter, meaning each party will bear their legal expenses related to the reconsideration application.

nomonde.zondi@inl.co.za

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