Answer to a question from a reader

My house's sale of execution and money judgment were heard on different dates. What can I do?

The short answer

The courts ruled in 2018 that banks must bring both the money judgement as well as the application for a sale in execution on the same date.

The whole question

My wife and I have fallen behind on our bond repayments. The bank obtained an order, and summons was granted against us, and we had to appear in court. 

At the last court date, the bank's attorneys applied for a sale of execution order to sell the house at an auction. What concerns me is the fact that this GroundUp article on 13 September 2018 states that both the money judgment and then the sale of execution order should be applied for on the same date. This was not done as we had to appear for two separate court hearings.

My concern is if the judge knew that this became a ruling made in the South Gauteng High Court by Gauteng judge president Dunstan Mlambo, why did he still rule for the bank on two separate occasions? 

Is there a way that I can approach the judge that presided over our case and discuss this issue with him, hoping that he can make a difference in the ruling?

The long answer

It is true that the courts ruled in 2018 that the banks must bring their entire case, i.e. the money judgement based on what is owed on the bond, as well as the application for a sale in execution order, in one court sitting. This is both because the two are completely linked, and because two court sessions are more expensive for the debtor than one. This is at least the case for Gauteng, though other courts should do the same.

You don’t say whether the judge decided on a reserve price for your house to be sold at auction. Judges are now required by the same 2018 judgment to set a minimum price for a repossessed house if it is the person’s home, based on the market value and the amount of the arrears owing. This is so that a house can’t be sold so cheaply that the owner still owes a great deal of money on the outstanding bond after the sale.

The courts have also ruled that if the home owners can pay the outstanding arrears and “reasonable costs”, they have the power to reinstate the bond, rather than the bank having the power. Legal Aid has recommended a period of at least six months after the sale of execution order has been granted, to give the debtor time to reinstate the bond agreement.

To answer your question, it’s most unlikely that you could personally approach the judge who presided over your case. You would probably need to take your case to an organisation like the Legal Resources Centre, the Lungelo Lethu Human Rights Foundation, or Legal Aid, and for their lawyers to advise whether the sale in execution order can be challenged or postponed.

For them to advise you, you would need to give them all the relevant information, including:

- A copy of the section 129 notice or letter of demand, summons and the sheriff’s return of service

- A copy of the bond

- A copy of the judgement and the details of the law firm that obtained the judgement for the bank

- A written statement of the whole story - facts, dates and all the relevant information.

Here are the contact details of the organisations you could approach for legal advice:

Legal Resources Centre Email: info@lrc.org.za Website: www.lrc.org.za
Lungelo Lethu Human Rights Foundation, Email Ms Winnie Mokoena via wk.stols@gmail.com
Legal Aid: Call the toll-free Legal Aid Advice Line 0800 110 110  or send a Please Call Me 079 835 7179

It must be a very difficult time for you and your wife. If it is any comfort, a constitutional judge has said:
“Since the right to adequate housing is a fundamental human right enshrined in the Bill of Rights in our Constitution, the orders to levy execution against property, which are primary residence, are required to be in harmony with the Constitution, which applies to all law.”

Answered on Feb. 6, 2019, 12:37 p.m.

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