A Randburg family has been ordered to leave their home within 30 days after the Gauteng High Court dismissed their latest attempts to overturn a judgment that allowed Nedbank to execute against the property over an outstanding loan.
The ruling, delivered by acting Judge J Mitchell on November 2, marks another setback for the Mukansi family, who have spent years fighting to prevent the loss of their home.
In an unusually candid opening to the judgment, Mitchell observed that 10 judges had already considered aspects of the dispute before it landed on his desk.
“At last count, ten judges of this court have, in some way or other, considered what to do about Nedbank’s half-decade attempt to recover a loan,” he wrote.
The judge added that the litigation had gone on long enough, invoking a Constitutional Court judgment emphasising that legal proceedings must eventually come to an end.
A five-year battle
The dispute dates back to 2005, when the Magoveni Family Trust borrowed R5-million from Nedbank, using a house in a Randburg estate as security.
The trust later borrowed an additional R200,000, which was also covered by the mortgage bond. The trustees, Hlekani Dudu Mukansi and Rhulani Yvonne Mukansi, stood surety for the loan, alongside Magoveni Pharmaceutical (Pty) Ltd.
After the trust fell behind on its repayments, Nedbank instituted legal proceedings in August 2019, seeking repayment of the debt and an order declaring the property specially executable.
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The bank subsequently obtained summary judgment in May 2020 after the family’s legal representatives failed to file an answering affidavit or appear when the matter resumed.
The court authorised execution against the property.
Family blames former attorney
However, the Mukansi family argued that they had not been properly represented during the proceedings and that their former attorney, Simba Kanyoka, had failed to protect their interests.
Hlekani told the court that he believed his attorneys were handling the matter and only learnt about the judgment in September 2020. He also alleged that Kanyoka had been stuck in Zimbabwe during the Covid-19 lockdown.
The family subsequently changed legal representatives several times and launched applications seeking to have the original judgment rescinded. Their arguments included allegations that Nedbank had failed to comply with the National Credit Act, that its summary judgment application was procedurally defective and that the amount reflected in its certificate of balance was incorrect.
They also questioned why the court had allowed the property to be sold when the pharmaceutical company allegedly owned other assets that could have been used to settle the debt. However, Mitchell found that the family had not demonstrated sufficient grounds to overturn the original judgment.
On the issue of legal representation, the judge found that the relevant court documents and notices had been properly served on the family’s attorneys. He rejected the argument that the attorney’s alleged failure to attend court meant the family had been absent for purposes of rescinding the judgment.
Judge cautions against blaming legal representatives
The judge emphasised that litigants cannot automatically escape the consequences of litigation simply by blaming their legal representatives.
The court also considered Nedbank’s compliance with section 129 of the National Credit Act, which requires credit providers to notify consumers of their default and inform them of available options before commencing legal proceedings.
Nedbank had not produced postal tracking reports demonstrating that the notices reached the intended recipients before it instituted proceedings.
However, the notices had been attached to the bank’s particulars of claim, which were properly served on the family’s legal representatives.
Mitchell found that, although there had initially been non-compliance, the bank had subsequently cured it before the summary judgment was granted.
He also rejected the family’s allegations that Nedbank had committed fraud, finding that they had failed to provide sufficient evidence to substantiate the serious accusations.
New owners caught in the legal battle
The property was subsequently sold at auction after an earlier attempted sale fell through. Thonts Properties (Pty) Ltd eventually acquired the property, with ownership registered in December 2021.
The new owners later approached the court seeking the eviction of the Mukansi family, who still live in the house with their two adult dependent children. Mitchell noted that Thonts Properties had acquired the property as a bona fide purchaser for value, warning that overturning the original judgment could have serious consequences for the rights of an innocent third party.
The judge also criticised the delays in the family’s attempts to challenge the original order, pointing out that approximately eight months had passed between the time Mukansi said he learnt of the judgment and the first rescission application.
In dismissing both applications, Mitchell acknowledged the family’s constitutional right of access to court and the legal protections afforded to people’s homes. However, he found that they had been given reasonable opportunities to defend themselves, oppose summary judgment and resist the sale in execution.
The respondents had sought punitive costs, arguing that the family had prolonged the litigation to delay their eviction.
Although the judge acknowledged the lengthy proceedings and expressed sympathy for the new property owners, who had been caught up in expensive litigation, he declined to impose punitive costs.
Instead, he ordered the applicants to pay the legal costs of Nedbank, Thomas Ntsoane and Thonts Properties, jointly and severally, including the costs of counsel. The court dismissed the consolidated rescission applications and ordered the relevant applicants and anyone occupying the property through them to vacate within 30 days of the November 2 order.
The judge noted that nothing prevented the new owners from agreeing to give the family more time to move out, or another court from suspending the order if sufficient grounds were established.
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- A Randburg family has been ordered to leave their home within 30 days after the Gauteng High Court dismissed their latest attempts to overturn a judgment that allowed Nedbank to execute against the property over an outstanding loan.
- The ruling, delivered by acting Judge J Mitchell on November 2, marks another setback for the Mukansi family, who have spent years fighting to prevent the loss of their home.
- In an unusually candid opening to the judgment, Mitchell observed that 10 judges had already considered aspects of the dispute before it landed on his desk.
- The judge added that the litigation had gone on long enough, invoking a Constitutional Court judgment emphasising that legal proceedings must eventually come to an end.
