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Only a judge can take your house

THE Constitutional Court yesterday struck a blow against banks that sell off people's homes after they fall into arrears on their bonds.

Banks that want to do this will now have to approach a high court judge and explain in each and every case why they feel justified in attaching and selling off houses.

Before yesterday, these cases only came before a judge if the homeowner went to court to argue why the bank should not repossess their home. But in many cases, homeowners who could not afford lawyers simply avoided the court date, and afterwards high court registrars gave authorisation for their homes to be sold off.

Yesterday's case was brought by Elsie Gundwana of Thembalethu township in George, 400km from Cape Town.

Gundwana was in arrears of just over R5200 on her bond repayments in 2003 when her bank, Nedcor, decided to sell the house to Steko Development. This company then got an eviction order against her.

The Constitutional Court declared rule 31(5) of the Uniform Rules of Court, which allows registrars to authorise such sales, unconstitutional.

Judge John Froneman, writing for the full court, ruled that "where execution against the homes of indigent debtors who run the risk of losing their security of tenure is sought after a judgment on a money debt, further judicial oversight by a court of law ... is a must".

Francois van Zyl, Gundwana's attorney, said: "We are delighted with the precedent this sets for other bond holders. Banks must now be on their guard to ensure that they conduct themselves fairly and constitutionally towards their clients."

The Socio-Economic Rights Institute law clinic, which also represented Gundwana, described the victory as a triumph for fairness in the bond execution process.

Teboho Mosikili, an attorney at SERI, said the judgment meant that Gundwana could start new legal proceedings to get her house back.

He said SERI, Van Zyl and Gundwana would meet in the next few days to start these legal proceedings.