Gauteng family ordered to vacate luxury home over R5.2 million Nedbank debt - IOL

Randburg family ordered to vacate home after failed Nedbank rescission bid.

A Gauteng family has been ordered to vacate their multi-million-rand home in Randburg within 30 days after the High Court dismissed their latest attempt to overturn a judgment that paved the way for the property to be sold in execution over debts owed to Nedbank.

Acting Judge J Mitchell, sitting in the South Gauteng High Court in Johannesburg, dismissed consolidated rescission applications brought by Hlekani Dudu Mukansi, his wife Rhulani Yvonne Mukansi, their family trust and Magoveni Pharmaceutical (Pty) Ltd.

The ruling brings another setback for the family, which had been fighting to prevent the loss of its home following a 2020 judgment in favour of the bank.

The court ordered Hlekani and Rhulani Mukansi, their adult children and anyone occupying the property through them to vacate the Randburg residence within 30 days.

The dispute dates back to 2005, when the Magoveni Family Trust obtained a R5 million loan from Nedbank, secured by a mortgage bond over the family home.

A further R200,000 facility was later secured, while Hlekani and Rhulani Mukansi and Magoveni Pharmaceutical signed suretyships in connection with the obligations.

When the trust fell into arrears, Nedbank instituted legal proceedings in August 2019, seeking repayment and an order declaring the property executable.

The family opposed the proceedings, raising various defences, including allegations of reckless lending and disputes about the amount owed. They also argued that the bank had failed to provide them with the opportunity to remedy their default as required under the National Credit Act.

Nedbank's summary judgment application was initially postponed to allow the applicants an opportunity to file an answering affidavit.

However, no answering affidavit was filed and none of the family members or their representatives appeared when the matter resumed in May 2020.

The court consequently granted summary judgment in favour of Nedbank and declared the property executable.

Hlekani Mukansi subsequently blamed his former attorneys, Kanyoka, for failing to properly attend to the matter. He claimed he had not been aware that the hearing had resumed and alleged that his attorney had been stranded in Zimbabwe during the Covid-19 lockdown.

Mitchell rejected the explanation, finding that the attorneys had been properly notified and remained on record.

The judge said litigants could not avoid the consequences of their legal representatives' negligence and found that the applicants had not acted with the necessary diligence.

The property was initially offered for sale to a company linked to a family member for R5.6 million. The sale was temporarily halted after a payment of R200,000, but ultimately did not proceed.

The property was later auctioned in June 2021. The first purchaser failed to pay, after which Thonts Properties acquired the property and transfer was registered in December 2021.

Ntsoane and Thonts Properties subsequently approached the court for an eviction order in February 2022. An eviction order was granted in January 2023, although its implementation was suspended for 30 days to allow the family to pursue further rescission proceedings.

In dismissing the latest applications, Mitchell found no basis to set aside the 2020 judgment under either Rule 42 of the Uniform Rules of Court or the common law.

The judge rejected the applicants' claims that the judgment had been erroneously granted, that Nedbank had failed to comply with the National Credit Act, and that they had valid defences to the bank's claim.

The court also dismissed allegations of fraud and conspiracy involving advocate Isiah Mureriwa and Thonts Properties, finding that the allegations were not substantiated.

The applicants' arguments that the bank should have pursued alternative properties or sureties, as well as their challenges to the certificate of balance, were also rejected.

Mitchell further found that the rescission applications had been brought after unreasonable delays. The applicants had failed to adequately explain the time that had elapsed before they approached the court.

The court also considered the position of Thonts Properties, which had purchased the property for value and obtained transfer.

Mitchell found no evidence that the company had been aware of the rescission proceedings before the transfer was registered.

The judge emphasised that setting aside a judgment would not automatically reverse a transfer to a bona fide purchaser and that the rights of third parties and the integrity of judicial sales had to be protected.

The judgment noted that numerous judges had already dealt with aspects of the dispute, adding that the litigation had to reach a point where it came to an end.

The court dismissed the applications with costs.