High Court halts sale of Gauteng home over R50,000 levy debt

The South Gauteng High Court in Johannesburg has stopped the imminent sale in execution of a home in Kempton Park, ruling that the body corporate failed to justify selling the residence to recover a relatively small debt and that the homeowner may have been unfairly shut out of earlier proceedings.

The matter concerns Canicias Ndlovu, the owner of a sectional unit valued at about R710,000, and the Ciloas Body Corporate. Ciloas had obtained a judgment from the Kempton Park Magistrate's Court in July 2020 for just over R50,000 in arrear levies and related charges and later secured an order permitting execution against Ndlovu’s property.

The body corporate waited almost four years after obtaining the Magistrates’ Court judgment before approaching the High Court for permission to sell the property. The application was treated as unopposed after Ndlovu’s former attorney failed to file an answering affidavit, allegedly due to a dispute over a deposit. Leave to execute was granted, and the sheriff scheduled a sale in execution for February 5, 2026.

However, Ndlovu approached the court urgently to stop the sale, saying he was unaware that the execution order had been granted until he consulted new attorneys shortly before the scheduled auction. While the court noted delays on his part, it found the application to be clearly urgent, as the sale would otherwise have proceeded.

Judge Stuard David James Wilson held that Ndlovu had established a prima facie right to have the execution order rescinded. The judge accepted, at least on a preliminary basis, that Ndlovu was not in wilful default, as he had paid his former attorney to oppose the application and was entitled to expect that the necessary papers would be filed.

Crucially, judge Wilson found that Ndlovu’s unit was his primary residence at the time leave to execute was granted — a fact that had not been disclosed to the judge who issued the execution order. The court said this omission was significant, as execution against a primary residence requires a proportionality assessment under Constitutional Court authority.

The court noted that the value of the home was about fourteen times the amount of the judgment debt, that Ciloas had delayed for years before seeking execution, and that Ndlovu had a history of making substantial payments toward his arrears. It was undisputed that he had made lump sum payments of up to R80,000 in the past and had paid his current monthly levies in full and on time for the past three years.

These facts, the court said, suggested that there were alternative means of recovering the debt and raised the possibility that the Magistrates’ Court judgment may already have been substantially satisfied. The court also said that the legality of certain fees charged by the body corporate could be relevant to whether execution was proportionate.

Ciloas argued that Ndlovu owed more than R200,000 based on an acknowledgment of debt signed in 2024. However, the court rejected this argument, holding that the execution order related only to the 2020 Magistrates’ Court judgment and not to any later or separate debt.

In addition, the court set aside the writ of execution after finding that it incorrectly provided for compound interest, whereas the original judgment allowed only simple interest.

The court granted a stay of execution pending the outcome of Ndlovu’s rescission application and ordered that the costs of the urgent stay application stand over for determination in the rescission proceedings.

sinenhlanhla.masilela@iol.co.za

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