In a case of David taking on Goliath, a homeowner who lost his house after a default judgment was issued against him, based on wrong calculations by Nedbank, emerged victorious as the Gauteng High Court, Pretoria, had overturned the sale in execution.
Prenash Somlal, who appeared in person fighting his case against Nedbank, turned to court to have a default judgment against him overturned. The default judgment was issued by the court as Somlal never pitched to defend the matter.
But in his rescission application, he explained that he had sorted it out with Nedbank that he was exploring avenues of keeping his property, and he was assured that the bank would not ask at that stage for the property to be sold on execution.
But this was not to be, as the bank proceeded and obtained an order for the sale of the property.
A reserve price of half of which the property was worth was set by the court, which accepted the word of the bank as to how much Somlal owed in rates and taxes. This appeared to have been based on wrong calculations.
The court earlier granted default judgment for the amount of R124 323.80 - which the bank claimed Somlal owed in terms of a mortgage bond agreement - as well as a warrant of execution against immovable property.
The value of the property was R1.4 million and the court set a reserve price of R700 000.
The immovable property was later sold in auction for the amount of R700 000 through the sheriff and is currently registered in the name of the new buyer. However, Somlal and his elderly mother, meanwhile, remained in the house.
Somlal obtained a loan from Nedbank and during 2003, a bond in the sum of R220 000 was registered over the property.
There has been a history of litigation between Somlal and the bank, which started in 2011. Since 2018, he has raised questions regarding the accrual of interest on his debt.
Sometime in 2018, Somlal was told by the bank that there would be an application for default judgment against him. When the matter was due in court, it was postponed indefinitely for him and the bank to try to iron out their differences.
Somlal, meanwhile, kept on contacting the bank’s officials as he was trying to reason with them that he had paid the debt in full.
He also approached other regulatory bodies including the National Credit Regulator Authority for assistance in establishing his case regarding the accrual of interest.
In explaining why he was not in court when it again reconvened to hear the bank’s application for the property to be sold on execution, Somlal told Judge Nelisa Mali he spoke to a bank employee who assured him the case would not proceed.
As a result, he did not attend the court proceedings as he was made to believe there were none.
According to Somlal, the reserve price was set on an incorrect figure taking into consideration the amount of the municipality account disclosed to the court.
The bank claimed he owed R61 076 in outstanding levies. This, while the municipal account reflected he actually owed R1 276.
The explanation proffered on behalf of the bank is that it is “all an unfortunate oversight and typing error”.
“Indeed, it is unfortunate and above all so material in all respects,” Judge Mali said.
Somlal’s submission is that the reserve price would have been set at a different amount had the correct figures been disclosed to the court.
Subsequent to the bank obtaining the default judgment of the amount of R124 333.80, it issued Somlal with a statement of account in the sum of R94 488.
“This glaring contradiction can be nothing more than a miscarriage of justice…These issues should be ventilated in the appropriate forum,” the judge said.
She concluded the default judgment was issued erroneously and she subsequently set it aside.
zelda.venter@inl.co.za