A Johannesburg man who bought a house through an auction nine years ago, is still unable to move in after a court dismissed his application to remove the occupants.
Okechukwe Noble Nwaeze bought a property in Bramley View through an auction on January 30, 2014.
The auction was arranged by Absa.
At the time of the auction, Richard Sputnic Ndlovu occupied the house with his family and they still live in the house.
Ndlovu previously entered into an agreement with the property’s former owner, known only as Mearlender, and agreed to buy the property from him.
However, Mearlender decided not to go through with the sale of the property.
It later turned out that Mearlender owed Absa a significant amount of money which was secured by a mortgage bond. As a result, Absa sold the house to Nwaeze in 2014.
However, in 2015, Ndlovu assisted by the Legal Resources Centre, brought an application to set aside the sale on grounds of illegality. The founding papers alleged that the sale had taken place in breach of various provisions of the Alienation of Land Act 68 of 1981.
Ndlovu’s application stalled the registration process and the house could not be registered under Nwaeze’s name, as a result, it’s still under Mearlender’s name.
Nwaeze’s attempt to evict Ndlovu from the property has been hanging on the pending application.
It’s been eight years and the application has yet to be finalised.
According to court documents, the delay was caused after the Legal Resources Centre withdrew from the case.
Furthermore, Mearlender also disappeared and could not be served.
Ndlovu spent a great deal of time negotiating with Absa in the hope that they could somehow reverse the sale, but his attempts remained futile.
The delay led to Nwaeze bringing an application at the High Court in Johannesburg to dismiss Ndlovu’s application on the grounds of non-prosecution.
Judge Stuart David James Wilson said he had sympathy for Nwaeze as he had been seriously affected by the delay because he also wanted to live in the property with his partner and children.
However, Wilson said he would be unable to assist Nwaeze because his application does not meet the required criteria to be considered for non-prosecution.
“I accept that there has been a delay in the prosecution of the Ndlovu’s application, and that there is no real excuse for that delay evident on the papers. However, I have some doubts about whether the requisite prejudice has been shown,” he said.
Wilson explained that if a claim is delayed to an extent that documentary evidence useful to the defendant is lost or destroyed, witnesses die or witnesses can otherwise no longer recall the facts to which the defendant needs them to testify, then the applicant suffers prejudice.
“But I am not sure that an applicant suffers legally relevant prejudice simply because their life plans or personal affairs are affected by the delay.
“Even were I to accept that the prejudice Mr Nwaeze has shown is relevant and admissible, it would not overcome the fact that the Ndlovu’s claim can in principle be considered on its merits, and that there is no good reason why Mr Nwaeze should not have set the main application down himself,” said the judge.
Wilson dismissed the application and ordered each party to pay their own costs.
IOL