Durban - A pensioner has been given a court-ordered reprieve that prevents Absa bank from auctioning off her home.
Deborah Dimakatso Maluka, who recently retired from the SAPS, approached the Johannesburg High Court after Absa applied to the court for leave to execute on mortgage debt it was owed for her home in Toekomsrus, near Randfontein.
Judge Stuart Wilson found that Maluka, who represented herself in court, was sincere in her commitment that from this month, she would start to receive pension payments of R2 500 from the SAPS, and would use the bulk of this to pay off her bond instalments.
The court was told the debt secured against Maluka’s property is slightly more than R170 000 and the instalments under R1 830 a month.
Judge Wilson said in the case, “a relatively small debt is secured against the modest home of an obviously impoverished debtor”.
“(Maluka) 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 SAPS, which will yield monthly payments of around R2 500.”
Judge Wilson said Maluka had indicated that she had 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”.
He said Maluka planned to use almost all those monthly payments to service the debt secured against her home.
“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 R2 200.”
Judge Wilson said the best evidence of Maluka’s ability to stave off execution would be a record of payment consistent with her undertakings and there was no suggestion that Absa would be unduly prejudiced by the delay to allow her the opportunity to try to establish that record.
“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,” Judge Wilson said.
He said execution in these circumstances was plainly inappropriate if there was any other realistic prospect.
The court decided that Maluka should make four payments to her mortgage bond, saying this would contribute meaningfully to the arrears on her home loan, pay off the interest due and reduce the capital amount.
“It will be for the judge seized with the matter on February 6, 2024 to decide whether Ms Maluka’s prospects of servicing the debt in this way are realistic,” Judge Wilson said.
Police and Prisons Civil Rights Union spokesperson Richard Mamabolo, responding to the judgment, said they would look at the red tape that prevented Maluka from receiving a pension, adding that many police officers found themselves in similar situations.
“We have received complaints from officers about not being able to afford bonded houses, while at the same time they don't qualify for RDP houses.
“With the worsening conditions of living, most have resorted to being backyard dwellers, placing their lives at risk.”
Financial investigations consultant Emerald van Zyl said it was becoming a common occurrence for banks to push for the execution on mortgage debt despite there being other realistic prospects for homeowners to keep homes.
“The courts realise this and that is why I have referred clients to the court and we have stopped 1 600 sales in execution,” he said.