An “impoverished” woman who represented herself in the Johannesburg high court has won a four-month reprieve against an Absa's court action in which the bank has applied to auction off her home.
Deborah Maluka, who has recently retired from the SA Police Service, now has until February next year to prove she can afford her house after the court ordered the bank to retreat.
Maluka must make four instalments on her loan to “demonstrate that she can actually make the payments she has promised”.
Judge Stuart Wilson found that Maluka had succeeded in convincing him that from this month she would start to receive pension payments of R2,500 from the SAPS, and would use most of it to pay off her bond instalments.
Absa applied to the court for leave to execute on mortgage debt it was owed by “selling Ms Maluka’s modest home in Toekomsrus, near Randfontein”. The debt secured against that property is just more than R170,000 and the instalments just under R1,830 per month, the court heard.
Wilson refused Absa leave to execute and postponed the application to give Maleka time to make four payments of R2,200.
“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, explaining his reasons.
“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.”
Wilson said that Maluka appeared before him and had explained that she had been experiencing difficulties in “negotiating the bureaucracy surrounding the way her pension payments will be structured” but was confident that this had been resolved and she had secured payments from this month. She assured the court that she would use almost all the money to pay off her debt.
“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,” the judge said.
“Though 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 her 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.”
The court held that the four payments by Maluka 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.
“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.”
