A Gauteng homeowner has been granted leave to appeal a High Court order declaring her Tshwane property specially executable after the court found there were reasonable prospects that another court could reach a different conclusion on whether the foreclosure was constitutionally proportionate.
The ruling comes after the same court in May, ordered the luxury home in the exclusive Lombardy Estate in Pretoria to be sold at public auction after its owners owed over R681,000 in unpaid levies.
At the time, Judge Leicester Rock Adams ruled in favour of Lombardy Home Owners Association (HOA) in a legal battle against homeowners Lillian Mokgalakane Makgolela and her husband, Kingsley Makgolela.
The judge declared their 796-square-metre property executable and set a reserve price of R3.5 million for its sale in execution.
Makgolela, who represented herself during the leave to appeal proceedings, argued that the court had committed both factual and legal errors when granting the foreclosure order. Among her complaints were that the court had failed to properly determine the property’s true equity and had incorrectly assessed its market value, resulting in what she described as a disproportionate order.
She contended that the value of the property substantially exceeded the court’s assessment and that less intrusive measures were available to enable the homeowners’ association to recover the outstanding levies and related charges without forcing the sale of her primary residence.
Makgolela also challenged aspects of the proceedings relating to service of documents and the applicant’s Memorandum of Incorporation. However, Judge Adams found those arguments lacked merit, noting that the application had in fact been served on the relevant parties and that several of her submissions improperly revisited issues concerning her indebtedness that could not be raised.
The judge noted that, in the original judgment, the court had already considered the competing constitutional interests involved in the matter. While acknowledging that a foreclosure order may limit a person’s right to adequate housing, he reiterated that a debtor cannot indefinitely avoid satisfying a lawful judgment merely because a home may be lost, and that courts are required to balance the competing interests of both parties.
Despite rejecting most of Makgolela’s complaints, Judge Adams found that her challenge concerning the proportionality of the foreclosure order raised an arguable issue that another court could decide differently.
“I am persuaded that the issues raised by the first respondent… 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,” the judge said.
He found there were reasonable prospects that an appeal court could arrive at different factual findings and legal conclusions, warranting leave to appeal.
The court, however, dismissed Makgolela’s separate application to introduce additional evidence, including email correspondence relating to the valuation of the property and a letter from Absa Bank stating it had not authorised the valuation. Judge Adams held that the application was misconceived because only the appeal court has the statutory power to receive further evidence during appeal proceedings.
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Sinenhlanhla Masilela
iol.co.za
