A woman turned to court after discovering her neighbour bought her home on execution as she fell behind in her levies.
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A judge frowned upon the conduct of a magistrate, sitting in a district court, which led to a KwaZulu-Natal homeowner losing her home, after the property worth R380,000 was sold on execution to her neighbour, as she was R13,914 behind on her levies.
Ngqondi Mfolozi had lost her employment, but once she secured a job, she offered to pay the arrears in levies back to the homeowner's association. This was denied and instead, she lost her home.
This emerged during an application before the Pietermaritzburg High Court, in which Mfolozi asked the court to set aside the sale of her Shelly Beach home.
The property was declared executable by the Port Shepstone Magistrate’s Court after the Farm Owners Association, Farm Estate in Shelly Beach, turned to the lower court. In October 2022, Mfolozi (applicant) was told she owed R13,914 in arrear levies.
When she said she could not pay as she had no job, the homeowner's association turned to the Port Shepstone Magistrate’s Court to attach her moveable assets.
Mfolozi did not respond to the summons, resulting in a default judgment being awarded against her. No moveable assets could be found, resulting in the magistrate declaring her property executable.
Unaware of these developments, Mfolozi emailed the attorney representing the homeowner’s association in 2024 to propose a settlement for the outstanding levy arrears, which had increased significantly by then, suggesting a monthly payment of R5,000. This offer was rejected.
Shortly afterwards, Mfolozi learned that her home had been sold under her nose to her neighbour. She only came to hear of this after she phoned him to enquire about his interest in purchasing it. He had earlier approached her with an offer to buy the property, which she had declined at that time. He told her that the property was sold to him in execution for R352,000.
Mfolozi argued that she did not receive any notification for sale of the property and said that the magistrate failed to correctly apply legal procedures when issuing an order declaring her property executable.
Judge Mbuzeni Mathenjwa commented that this case presents unique circumstances as the applicant’s immovable property, valued at R380,000, was declared executable by a district court to settle a debt of R13,914.93.
He also noted that there was no record in the court file of an application to declare this property executable. The homeowner's association responded that an application seeking to declare immovable property executable was included with their answering affidavit.
“The current case illustrates significant challenges in delivering justice in this court, stemming from what seems to be a blatant disregard for justice in the magistrate’s court,” Judge Mathenjwa said.
He questioned how a court exercising judicial authority would have considered an immovable property valued at R380,000 executable for settling an original debt of R13,914, when the applicant had proposed to pay off this debt.
There also remains uncertainty regarding whether the district court had jurisdiction to declare an immovable property executable when its value far exceeds the court’s monetary limits. The judge also pointed out that it is evident that there was no formal application in the first place for the execution of the property.
As there was no recorded explanation as to what had happened in the lower court, he suspended the transfer of the property to the neighbour for three months for the applicant to take the matter back to the lower court for the magistrate to explain his order.
zelda.venter@inl.co.za