- A Gauteng homeowner has won leave to appeal against an order declaring her primary residence specially executable.
- She argues the equity in her home far exceeds the amount considered by the court and that less drastic debt recovery measures were available.
- The High Court in Johannesburg found another court may reach a different conclusion on whether the foreclosure order was proportionate.
A Gauteng homeowner has won the right to challenge the forced sale of her family home after arguing that the measure was unnecessarily harsh because the property's equity far exceeded the amount considered by the court and the homeowners' association had other ways to recover the unpaid levies.
Lillian Mokgalakane Makgolela secured leave to appeal from the High Court in Johannesburg after convincing Judge LR Adams that another court may reach a different conclusion on whether it was proportionate to order the sale of her primary residence.
The appeal follows an earlier judgment in which the court declared Makgolela's home specially executable and fixed a reserve price of R3.5 million.
Homeowner challenges proportionality of the order
Makgolela argued that the court failed to properly determine the true equity in her home before ordering it to be sold.
She maintained that the property's equity was substantially greater than the amount taken into account by the court and that Lombardy Home Owners Association NPC could have pursued less intrusive measures to recover the outstanding levies instead of forcing the sale of her home.
Summarising her argument, Judge Adams said Makgolela contended "that the foreclosure order was disproportionate" because "the equity in the property, which is their primary residence, is way in excess of the amount I had assessed it at, coupled with the fact that there are other less intrusive alternatives available to the applicant to recoup from the first respondent the arrear levies and related charges."
She further argued that the court had failed to assess the true market value of the improved property against the outstanding bond before setting the reserve price, resulting in what she described as an inequitable and disproportionate order.
Judge says another court may disagree
Judge Adams acknowledged that Makgolela had repeated many of the arguments she raised during the original proceedings. However, he found that the issue of proportionality justified consideration by a Full Court.
"I am persuaded that the issues raised by the first respondent in her application for leave to appeal, especially the issue relating to proportionality, are issues in respect of which another court is likely to reach conclusions different to those reached by me," he said.
He added, "There are reasonable prospects of another court making factual findings and coming to legal conclusions at variance with my factual findings and legal conclusions. The appeal, therefore, in my view, does have a reasonable prospect of success."
Earlier judgment balanced competing rights
The leave to appeal application arose from Judge Adams' judgment delivered on 14 May 2026, in which he granted Lombardy Home Owners Association judgment for the outstanding levies and declared Makgolela's property specially executable. The court set a reserve price of R3.5 million for the sale in execution.
In that judgment, Judge Adams held that although the order could limit Makgolela's right to adequate housing, "she cannot avoid a legitimate judgment indefinitely by claiming that the home will be lost. The Court must balance the competing interests."
Appeal will proceed to a Full Court
Makgolela also sought permission to introduce additional evidence, including correspondence relating to the valuation of her property and a letter from Absa Home Loans Guarantee Company stating that it had not authorised the valuation.
Judge Adams dismissed that application, finding that the issue of admitting further evidence falls within the powers of the appeal court rather than the court hearing an application for leave to appeal.
The court dismissed the application to adduce further evidence with costs, granted Makgolela leave to appeal to a Full Court of the High Court, and ordered that the costs of the leave to appeal application will be costs in the appeal.
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