Court upholds Umvoti sale in execution

2011-10-31 00:00

THE Supreme Court of Appeal has upheld a decision handed down in the Pietermaritzburg high court by Judge Malcolm Wallis last year in favour of Umvoti Municipality arising from the the controversial sale in execution of a house on December 12, 2003.

According to the facts placed before the court, rates defaulter Stiphen Mkhize and his late wife bought the vacant land in 1998 for R25 000 and built a house on it that was never completed.

Following the death of his wife in 2000 Mkhize became sole owner of the property.

He never lived in the house, but in another home that he also owned, along with other properties.

The Umvoti Municipality subsequently obtained judgment against him by default in respect of arrear rates and other charges he owed relating to the property.

As a result, a warrant of execution against the property was issued by the clerk of the magistrate’s court and a sale in execution followed.

The property was sold to Nalini Khan, who was employed as a credit controller by the municipality, for R8 000.

The house was subsequently transferred to her brother, Navin Chetty.

The property was thereafter re-sold on August 28, 2004, to Vusi and Daphne Dlamini for R350 000.

The outcome of the court case was, however, based on a constitutional issue raised and not on the factual history.

In that regard the SCA ruled that judicial oversight (or a court order) before a property is sold in execution is required only in order to protect the right to adequate housing enshrined in the Constitution, and applies only to execution against people’s homes.

In Mkhize’s case his right to adequate housing was not found to have been compromised as the house concerned was not his home.

Nor was it suggested that he did not have access to adequate housing.

• ingrido@witness.co.za

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