- Absa obtained summary judgment for R5.28 million plus interest.
- The court dismissed the homeowner's technical challenges to the mortgage debt.
- Judge P Molitsoane refused to declare the family's primary residence specially executable.
A Bloemfontein homeowner has avoided losing his family home even though he owes Absa Bank more than R5.28 million. The High Court in Bloemfontein ruled that Absa had not met the legal standards required to sell a primary residence in execution.
Judge P Molitsoane granted Absa summary judgment for R5,280,967.22 with interest, but refused the bank’s request to have Samuel Matlabe Tshabalala’s home declared specially executable. The question of executability will now continue as part of the ongoing case.
Court rejects technical defences
Tshabalala opposed Absa’s application on three grounds. He argued that Absa had failed to comply with Section 129 of the National Credit Act because the sheriff’s return mentioned Johannesburg. He also claimed the bank relied on a copy rather than the original loan agreement, and that the application for executability was procedurally flawed.
Judge Molitsoane dismissed the first two arguments. He found that the Section 129 notice had been served at Tshabalala’s chosen address, and the reference to Johannesburg did not affect its validity since the parties and the debt were clearly identified.
The court also accepted Absa’s evidence that the original loan agreement had been lost, ruling that the bank’s records proved the key terms of the mortgage loan. Tshabalala admitted the existence of the mortgage bond and did not provide evidence to show the loan was settled or that the balance claimed was incorrect.
Selling a home requires more than proving a debt
Although Absa was successful in proving the money was owed, the court said this did not automatically entitle the bank to sell the defendant’s home.
Judge Molitsoane explained that Rule 46A requires judicial oversight whenever a creditor tries to execute against a primary residence. The court must make sure the proper procedures have been followed and consider whether there are less drastic ways to recover the debt.
In this case, Absa had not personally served the executability application on Tshabalala and had not obtained the court’s permission for an alternative form of service. The court also found that there was not enough information about Tshabalala’s movable assets or other possible ways to satisfy the judgment.
The judge said, “Execution of the primary residence cannot be the first thing the plaintiff thinks of to seek payment of its debt.”
Order
The court granted Absa summary judgment for R5,280,967.22 plus interest, gave Tshabalala leave to defend the executability proceedings, and postponed the issue of costs until that matter is finally decided.
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