http://www.dispatch.co.za/article.aspx?id=439380

2010 10 08  G'town couple win court battle to keep home

A GRAHAMSTOWN couple who have fought desperately for almost a year to stop their home from being taken from them and sold in execution of a R70000 debt, yesterday won their battle.

Nedbank this week threw in the towel and consented to a high court order setting aside a default judgment the bank took against Siphiwo and Miliwe Kanana last year.

The couple had planned to take their plight all the way to the Constitutional Court.

According to court papers, they had fallen into arrears with their mortgage bond last year and later discovered that default judgment had been taken against them in the Grahamstown High Court.

The Registrar of the High Court, acting in terms of the rules of court, had also declared their property executable, which meant Nedbank could sell the property to recover the couple' s remaining debt.

Despite subsequently paying off almost a third of their debt and making arrangements for further monthly payments, the couple were informed by Nedbank that it still intended selling their home.

In June, with the assistance of the Grahamstown-based Legal Resources Centre, the couple obtained an interim interdict preventing Nedbank from doing so.

They also challenged the constitutionality of the Uniform Rules of Court that allow the Registrar of the High Court to grant default judgments and declare immovable property executable without judicial oversight.

But, while the couple initially took the matter to the Grahamstown High Court, they then sought to apply to directly access the Constitutional Court, where a similar matter was due to be argued in February next year.

They wanted the Constitutional Court to either rule on their case or allow them to intervene in the other matter, Gundwana v Steko Development CC.

In that matter, the applicants are also asking the Constitutional Court to declare the same rules of court constitutionally invalid.

But this will no longer be necessary as the Kanana couple achieved what they set out to do - save their home.

LRC attorney Cameron McConnachie said their application to the Constitutional Court would therefore be withdrawn.

He said the Eastern Cape division of the high court had, in any event, subsequently issued a "practice directive" in terms of which matters such as that of the Kananas would in future require an order from a judge and not only the registrar.

Contacted for comment yesterday, Siphiwo Kanana said he was very relieved. They had initially taken out the loan from the bank to pay for their daughter's education.

"It's been a long, hard fight and my wife and I have had sleepless nights."

He said that the bank had "right up till today" been deducting monthly amounts from his account to repay the debt.

"It's been so confusing to see my statement reflecting this and at the same time being told they are going to sell my house." - By ADRIENNE CARLISLE