The proverbial ‘when you snooze, you lose’ truism came into play in a property dispute heard in court last week, says Pretoria News legal journalist Zelda Venter.

A decade ago, Absa obtained judgment against Eric and Beatrice Gontsana to sell their home in Orange Farm, south of Johannesburg, on execution. But over the past 10 years, the bank did not execute the order and the family remained living in the house. They did make payments over the years in the amounts they could afford.

But now, a decade after they first obtained the judgment to sell the house on execution, the bank returned to court to obtain an order allowing it to go ahead with the sale and perhaps setting a reserve price on the house when it was executed.

But Gauteng High Court (Johannesburg) Judge Stuart Wilson suspended the order given 10 years ago and ordered Absa to first speak to the defaulting family to see whether there was a chance of them retaining their home.

By December 2022, the Gontsanas had paid just over R55 000 to Absa. Wilson commented that this was obviously insufficient to discharge the judgment debt plus interest and costs, but it did suggest that the Gontsanas made a serious and sustained effort, over a number of years, to make good on their obligations.

Wilson said Absa’s acceptance of payments from the Gontsanas while still operating the their account as if the earlier judgment had never been handed down, raised the question of whether the bank’s conduct during that time amounted to a waiver of its right to execute, or an outright abandonment of the judgment.

‘Ultimately, however, though the Gontsanas might reasonably have thought that Absa had abandoned Mali AJ’S order, I cannot conclude that such an abandonment is the necessary inference to be drawn from Absa’s conduct. The 10-year delay in acting on the judgment could also be explained by an extraordinary act of leniency.’

Wilson said given the Gontsanas’ modest means, and the relatively low value of the loan, Absa’s conduct was consistent with a decision to give the Gontsanas multiple opportunities to make good on the debt, before turning to execution.

‘However, if there was leniency, then there was also carelessness. Apart from the garbled records of conversations between Mrs Gontsana and what appears to be Absa’s call centre, I have not been presented with any facts that suggest that Absa ever engaged with the Gontsanas, much less that it did so in a meaningful way,’ the judge said.

According to the Pretoria News, he said the bank adopted an essentially hands-off approach for nearly 10 years before applying to the court to finalise the execution process on less than a month’s notice to the Gontsanas.

‘If Absa really wanted to assist the Gontsanas, its efforts to do so were ineffectual.’

The judge said whatever its true motive, Absa’s conduct tended to imply that it wished to preserve the option of executing the order all along, and that it sought to exercise that option by bringing this application now.

‘Absa advanced a loan to an impecunious family in one of SA’s poorest townships. When the Gontsanas failed to repay that loan, Absa took judgment,’ Wilson said.

‘Having obtained judgment and the right to execute, it then left that judgment to lie fallow for 10 years, all the while accepting payments and no doubt contributing to the impression that it was no longer interested in executing against the Gontsanas’ property. After that decade had elapsed, it approached me on the basis that I need only decide what Absa considers to be the technical matter of whether a reserve price should be set.’

According to the Pretoria News report, Wilson said despite being given the opportunity to do so, Absa had not adequately explained what happened in the 10 years during which it declined to execute, why it applied the Gontsanas’ payments to their loan account, and not in reduction of the judgment debt, and why it recently decided to reverse its course and execute against their home after all.

‘This conduct is not merely ‘extraneous’ to the pursuit of truth. It is incompatible with that pursuit,’ the judge said.

Full Pretoria News report

Judgment