uMvoti wins new legal fight

2010-05-24 00:00

THE uMvoti Municipality has come out the victor in the latest round of a long-standing legal battle over the controversial sale in execution of a house belonging to rates defaulter Stephen Mkhize on December 12, 2003.

In a reserved judgment handed down in the high court in Pietermaritzburg on Friday, Judge Malcom Wallis ruled in favour of the municipality on a constitutional issue raised on Mkhize’s behalf.

However, he ruled that an alternative application by Mkhize, in which he is seeking damages from the municipality, be adjourned indefinitely to give the parties time to consider their positions in the wake of his findings.

In the reserved judgment, Wallis ruled that the Constitutional Court judgment relied on by Mkhize, which effectively found retrospectively that judicial oversight (or a court order) is required before a property may be sold in execution — applies only when the property in question is the debtor’s home.

Wallis said the Constitutional Court judgment dealt specifically with the issue of people’s constitutional right to “adequate housing”.

There was no question on the facts in the case of any interference with Mkhize’s right of access to adequate housing.

In the present case, Judge Wallis said, although the property was residential, it was not and never has been Mkhize’s home.

Mkhize and his wife bought the then undeveloped property in June 1998 for R25 000 and built a house, which was not completed.

When his wife died in September 2000, Mkhize inherited the property, but never lived there. He and his wife shared a home on another property.

Mkhize fell into arrears with the rates on the property as well as other charges and judgment was taken against him in the magistrate’s court.

When the sheriff failed to find sufficient movable property to satisfy the judgment, a warrant of execution was issued by the clerk of the magistrate’s court (in terms of the then existing legislation) and the property was sold in execution on December 12, 2003 to Naveen Chetty.

He in turn sold the property for R350 000 to Vusi and Daphne Dlamini, who took transfer in November 2004, and who have since taken out a bond of R500 000 to carry out improvements.

The dispute between Mkhize and uMvoti Municipality received widespread publicity after questions were raised about the fact that the initial buyer of the home, Chetty (who paid R8 000 on public auction), was a brother of a credit controller at uMvoti Municipality, Nalini Khan.

The circumstances under which the house was sold became the subject of a forensic probe and questions were raised in Parliament.

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