sale-in-execution - eviction - rescission application - South Gauteng High Court

SERI represents a woman and her two minor children, living in a property in Naturena, in a rescission application of a default judgment handed down in 2010. The family is facing eviction by the new owner of the property, who bought it in a sale-in-execution in August 2011 (SERI is also representing the Mbathas in this application).

Our client's bond account went into arrears after she separated from her husband, who was paying the bond account. Nedbank obtained a default judgment against her and her ex-husband on 29 July 2010, granted by the Registrar of the High Court in her absence and without her knowledge. The bank then entered into arrangements in terms of which it undertook to stop the sale in execution and restructure her bond payments, if she paid R3 500 per month for three months towards the bond account, which she did. Nedbank stopped the sale-in-execution, continued to run the bond account but failed to restructure her payments as agreed. Because she was not permitted to renegotiate her payment schedule, as promised, our client was unable to keep up her payments. Nedbank then proceeded to sell the property. SERI contends that our client is entitled to a rescission on the following bases:

• The summons upon which the default judgment was granted was not served on our client by the Sheriff;
• The bank did not send a notice in terms of section 129(1) of the National Credit Act 34 of 2005 to our client’s correct address;
• The Constitutional Court in the Gundwana case held that it is unlawful for a Registrar to grant an order declaring property used as a home specially executable. Only a Judge can grant such an order after considering all the relevant circumstances. The default judgment was accordingly granted in violation of our client's right of access to adequate housing in section 26 of the Constitution. The Gundwana ruling applies retrospectively, subject to certain conditions, which our client meets.

This case raises serious issues relating to unfair and unconscionable conduct by banks, and questionable service by the Sheriff.

• Notice of Motion and Founding Affidavit (30 March 2012) here.