Standard Bank slammed in court after repossessing and auctioning Soweto home for R200

The Johannesburg High Court last week overturned a 1994 judgment in favour of Standard Bank resulting in a three-decade battle between the bank and Soweto homeowner Mogudi Mosai.

Among several bizarre features of this case is that the home was repossessed by the bank in 1994 over alleged arrears of R109 000 and then sold at auction for R200 – “which has all the makings of a simulated transaction”, declared Judge Van Nieuwenhuizen.

Sales of homes for such paltry amounts were “an unhealthy practice which was particularly rife amongst banks at the time”. This despite constitutional protections already in place against arbitrary deprivation of property.

“The bank provided no explanation at all for this abuse which resulted in [Mosai’s] right to the surplus after payment of the judgment debt being destroyed,” reads the judgment.

“It is no excuse to say that it no longer has any files relating to the [sale in] execution.”

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Long road to justice

The story goes back to 1982 and covers a particularly dark period in South African history when a marriage between a black woman and a black man was assumed to be out of community of property unless a declaration to the contrary was made at least one month prior to the marriage.

Mosai was married to the late Howard Mogudi in 1982, and this apartheid-era confusion as to the status of the marriage formed a central pillar of the case. It was eventually conceded by the bank that they were married in community of property, in which case any legal actions would have to cite both as respondents. However, this did not happen.

The couple acquired a leasehold property in Orlando West in Soweto in 1991 and then mortgaged the property to the bank to fund a business venture.

The fact that Mosai did not sign any bond or transfer documents despite the marriage in community of property contravened the Matrimonial Property Act, which requires both spouses to be involved in such decisions.

The business venture ultimately failed, and the couple fell into arrears. Standard Bank issued summons in November 1993 for the claimed arrears of R109 000.

Mosai says neither she nor her late husband received any summons from the bank. The sheriff’s “return of service” notice shows the summons appears to have been served on a Mrs Lethollo, who was unknown to Mosai.

The bank obtained judgment against the couple and proceeded to sell the property at auction for R200 in September 1994.

Mosai and her husband were completely unaware that their property had been sold.

They continued to live undisturbed in the house until 2001, when Servcon Housing Solutions – purporting to be acting on behalf of the bank – approached Mosai and asked her to sign a lease agreement for the property. Her husband was away in Kenya at the time, and advised her to sign the document though she was unaware of its significance. The lease agreement required payment of R904 in monthly rentals.

They paid the monthly rentals and made improvements to the house, which increased in value to R450 000.

In 2002, the bank sold the property for R50 000 to Tshenolo Monaapula, who appears to have worked for the South African Reserve Bank and had bought other properties under similar circumstances.

ALSO READ: Court rules in favour of clients in Standard Bank home loan dispute

Eviction

The property was transferred in 2004 into the new buyer’s name, and she commenced eviction proceedings against Mosai and her husband.

The couple were evicted from their home in 2005, but raised funds to mount a legal defence and managed to retain possession of the property pending finalisation of the matter.

In her court papers, Mosai says her husband – who passed away in 2013 – only became aware in December 2001 that the bank had purchased the property in 1994. Mosai was subsequently appointed executrix of her late husband’s estate.

It was only in 2007 after consulting with law firm Fluxman’s that the couple discovered the Servcon lease agreement was still in force and had not been cancelled.

Mosai argued that she was not in wilful default of the loan from the bank, and that the judgment against her was “erroneously sought and granted” and was irregular in that she was not cited by the bank as co-owner of the property.

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‘No records’

The judgment reads: “The bank has no records pertaining to the execution of the judgment given that the executrix waited 21 years to launch the present application or at least 14 years after the sale came to her knowledge on 6 December 2001. It in any event states that the sheriff would not have proceeded with the sale in execution in 1994 had there been any defects in the execution process. No explanation is proffered for the paltry price paid by the bank for the property.”

Mosai was under the impression that once the debt to the bank had been discharged the property would be transferred back to the couple.

The judgment goes into some detail on the parlous position of married black couples under apartheid.

“Banks are in the business of granting loans secured by bonds. By 1993 the repressive apartheid regime was in its dying days and black persons were in the position of acquiring an interest in land in black townships and ultimately ownership. A bank which wanted to enter this market was in my view obliged to acquaint itself with the pitfalls of entering into mortgage bonds with black persons and should have made enquiries as to the true status of such a person’s marriage.”

The judge goes on to say: “Given the paltry purchase price paid I have serious doubts as to whether the bank was a bona fide purchaser and could ever have passed ownership to Ms Tshenolo [who bought the property at auction]. Despite that there is in my view insufficient evidence to find that it was a simulated transaction or an abuse of process.”

The original 1994 judgment was rescinded and set aside and Mosai declared the lawful owner of the property pending the finalisation of her husband’s estate. Costs were awarded against the bank.

ALSO READ: FNB home repossession goes horribly wrong

Homeowners ‘still subjected to abusive foreclosure’

“It’s [a] case of the chickens coming home to roost where past practices come back to bite,” says consumer legal advisor Leonard Benjamin.

“However, it would be a mistake to think that this is indicative of a bygone era,” he adds.

“Whilst there has certainly been many developments in the law which should protect the poor and the vulnerable, in reality, homeowners are still subjected to abusive foreclosure practices.

“The banks should learn a lesson from matters of this nature. While it may take decades, eventually their practices catch up with them.”

This article was republished from Moneyweb. Read the original here.