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[2023] ZAGPJHC 1157
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ABSA Bank Limited v Maluka and Another (2022-015043) [2023] ZAGPJHC 1157 (16 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
No.
2022-015043
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
16.10.23
In the matter between:
ABSA
BANK LIMITED
Applicant
And
DEBORAH
DIMAKATSO MALUKA
First
Respondent
RAND
WEST CITY MUNICIPALITY
Second
Respondent
JUDGMENT
WILSON
J:
1
The applicant, ABSA, seeks leave to execute on a mortgage debt
owed to it by the first respondent, Ms. Maluka. ABSA wishes to do
so
by selling Ms. Maluka’s modest home in Toekomsrus, near
Randfontein. The debt secured against that property is just over
R170 000. The instalments due on the home loan the mortgage bond
secures are just under R1830 per month.
2
On 5 October 2023, I refused ABSA leave to execute against Ms.
Maluka’s home. I postponed ABSA’s application to do so
to
Tuesday 6 February 2024. I directed Ms. Maluka to make four monthly
payments to ABSA, each in the sum of R2200, on or before
the last day
of each month between October 2023 and January 2024. I indicated that
I would give my reasons for making that order
in due course. These
are my reasons.
3
A court asked to give leave to execute a debt against a
person’s home must be satisfied that there are “no other
proportionate
means” to secure the payment of the debt
(
Gundwana v Steko Development
2011 (3) SA 608
(CC), paragraph
54). The proportionality inquiry embraces a wide range of
circumstances, many of which this court enumerated in
First Rand
Bank v Folscher
2011 (4) SA 314
(GNP) (see, especially, paragraph
41 of that decision).
4
In this case, a relatively small debt is secured against the
modest home of an obviously impoverished debtor. Execution in these
circumstances is plainly inappropriate if there is any other
realistic prospect that “the debt might yet be paid”
(
Standard Bank of South Africa v Saunderson
2006 (2) SA 264
(SCA), paragraph 20).
5
Ms. Maluka, who appeared in person before me, offers the
prospect that she may yet be able to pay the debt secured against her
home.
She says that she is entitled to a pension from the South
African Police Services (SAPS), which will yield monthly payments of
around R2500. She has had some difficulty negotiating the bureaucracy
surrounding the way those pension payments will be structured,
but
confidently expects that the first monthly payment due will be made
this month, in October 2023. Ms. Maluka plans to use almost
all of
those monthly payments to service the debt secured against her home.
6
I see no reason not to give Ms. Maluka the opportunity to try
to clear her arrears and make good on her obligations to ABSA in this
way. Ms. Maluka readily agreed to an order directing her to make
monthly payments in the sum of R2200. Although I have nothing
under
oath from which I can infer that Ms. Maluka will receive a pension,
and that she is likely to be able to make the payments
she says she
can make, it seems to me that the best evidence of Ms. Maluka’s
ability to stave off execution would be a record
of payment
consistent with her undertakings. There is no suggestion that ABSA
would be unduly prejudiced by the delay entailed
by allowing Ms.
Maluka the opportunity to try to establish that record.
7
Accordingly, I postponed the application for leave to execute
for four months in order to give Ms. Maluka the opportunity to
demonstrate
that she can actually make the payments she has promised.
On the face of things, those payments exceed the monthly instalments
that are due on the home loan, and will, it seems, make a meaningful
contribution to the arrears on the home loan while at the same
time
paying the interest due and reducing the capital amount secured.
8
It will be for the Judge seized with the matter on 6 February
2024 to decide whether Ms. Maluka’s prospects of servicing the
debt in this way are realistic. If they turn out not to have been,
that Judge may well decide that execution is proportionate at
that
stage. But the question before me was whether, in light of all the
facts, it was proportionate to allow this creditor to take
away this
debtor’s home at this time. For the reasons I have given, that
result would plainly have been disproportionate.
S D J WILSON
Judge of the High Court
This judgment is handed
down electronically by circulation to the parties or their legal
representatives by email, by uploading
to Caselines, and by
publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed
to be 16 October 2023.
HEARD ON: 5 October
2023
DECIDED ON: 5
October 2023
REASONS: 16 October 2023
For the Applicant:
K Boshomane
Instructed by
Lowndes Dlamini Attorneys
For the First
Respondent:
In person