A Durban woman won a surprise victory in Durban’s High Court against ABSA/Barclays Bank on Thursday 23 February 2017. The woman, who wishes to be known only as “gugulethu”, managed to block the big bank’s bid to get its hands on her late mother’s house after a series of appearances in the High Court dating back to 2013.
“I feel like I’ve done ten rounds with Henry Cooper and left him on the floor,” smiles an excited gugulethu after the case. “I knew there were still honest judges around. And the presiding judge, J Radebe, is definitely one of the rare ones.”
The case was brought by the firm Velile Tinto & Ass who were claiming nearly R160,000 from the estate of gugulethu’s late mother who died in 2008.
“The first I knew of an outstanding debt was when we received sheriff’s papers in early 2013 from Velile Tinto, who claimed they were acting for ABSA,” says gugulethu. This seemed fishy to her because ABSA itself had never sent a bill to the family. gugulethu suspected that the law firm was in fact a debt collecting agency that had bought the debt.
“I smelt a rat because I knew that the bank would have taken out a life insurance policy on the debt. All businesses have to have insurance, and a house bond is quite a risky venture, especially in South Africa where the mortality rate is higher than in developed countries,” says gugulethu.
gugulethu entered into email correspondence with Velile Tinto’s representative and asked for the contract between her mother and the bank as proof of debt. Her strategy was to appeal to the bank to let her take over the remainder of the bond and pay it off monthly. She could not settle in one go and did not want to sell the family home in Durban, either.
After much to-ing and fro-ing over emails, ABSA eventually wrote to say that the building that had housed the contract had been burned down in 2009 or thereabouts and the contract no longer existed. gugulethu knew that this was significant but did not know what to do next.
She had no idea how to go about getting the bank to drop its claim. She could not afford lawyers’ costs. So she waited for the bank’s next move.
“I knew that in a real court the contract is queen, and so I thought that as they’d admitted in writing that the contract was lost, they would drop their case.”
But instead, ABSA’s lawyers decided to pursue the case. Several months later, the court summons arrived.
“When the summons arrived, I was petrified. My mother bequeathed the house to my three brothers and me. It wasn’t just my inheritance I was gambling with by standing up to ABSA, my brothers stood to lose out too if we lost,” she admits.
“My brothers thought we should sell the house and pay off the debt, but I thought we needed to have a family home. And I had nowhere else to live, having spent most of my adult life outside of South Africa.”
The summons contained a “dummy” contract as proof of debt, which ABSA’s lawyers claimed was the standard mortgage contract.
“I looked up the word ‘dummy’ and the definition that stuck was that it meant counterfeit or sham. That’s exactly what I thought of the contract and the entire legal application,” continues gugulethu.
As the court date drew closer, and uncertain about her chances in the high court, gugulethu decided to make a settlement offer to ABSA the day before the first court appearance.
“I made an offer of half the requested amount, with no idea where I’d get the money from if they accepted,” says gugulethu.
But Velile Tinto’s representative, Sonica Viljoen, turned down the offer within minutes by email. What followed were various court appearances over several months, mainly about procedure, with the judges ordering that gugulethu present her case in the manner understood by legal professionals.
All the demands seemed to be a way of dismissing her, she thought, but in hindsight she accepts that the judges actually helped her to make her case without giving Adv D Ramdhani, who was representing ABSA, the opportunity to win on a mere technicality.
“Judge Radebe was really patient with me in court. He’s restored my faith in our judiciary. The first judge, an Indian woman whose name I did not obtain, made it clear from the start that she was prepared to take bank statements from Ramdhani as proof of contract. I cried foul to her statement and prayed we would not get her again,” remembers gugulethu.
After finding various articles on the Internet about banks’ mortgage corruption and then an article about the personnel at Durban High Court itself being corrupt, gugulethu tried to contact the one lawyer in South Africa who had made a name from tackling bank fraud, Adv D Shaw, for advice. She failed to get through on any of his contact details.
In September 2015 Adv Ramdhani threw in the towel and asked for an adjournment sine die. gugulethu knew this was a victory of sorts but the sine die qualification kept her worried. What she really wanted now was for the case to be dismissed with costs for good.
Another summons arrived in mid 2016 subsequent to an email received from Viljoen that stated that the contract with her mother’s signature had been found. Viljoen had scanned the “contract” and had emailed it to gugulethu.
“I was intrigued. So they had actually found the contract? What had all the nonsense about a fire been about? And why had they sent through a dummy contract? I rushed to the signature page of the 1.5 page “contract””.
But the page only contained her mother’s signature, not the bank representative’s. Spaces had been made for Witnesses’ signatures, but they had not been signed. gugulethu sent a quick note back to Viljoen saying she knew what a contract was. She thought this would be the last attempt by the law firm and she settled down to enjoy the end of year holidays.
Sometime in September 2016 however, a huge 154- page document arrived from VT. With all the evidence from the previous hearings, including emails between VT’s Viljoen and gugulethu. It seemed like a last-ditched attempt to prove their case.
“The only problem was, there was still only my mum’s signature on their “contract”. They had also furnished statements allegedly of my mum’s account, probably in response to the Indian judge who’d said statements were also proof of contract. But the statements started in 2012 – my mother had died in 2008. What had happened in the four subsequent years?”
gugulethu chose to ignore the 154 page document. About six months later a summons was left at the gate of her home stating a set down date of 23 February 2017. With no idea of what ‘set down’ meant at the time, gugulethu visited the Master of the Court on the 22nd of February for advice.
There she overheard two African female assistant masters discussing a case being “set down” and asked one of them what was meant by the term.
“She told me it meant court hearing and then she listened to my story and sent me to the most experienced member of their team, Mr Willie Ollewagen, the Deputy Master. He confirmed that he was indeed the most knowledgeable master in house, having spent 27 years in his department. I felt relieved, thinking if anyone could help, it was him”.
Instead of helping, however, Ollewagen scolded gugulethu for not hiring a lawyer to deal with this case, and for not winding up her mother’s Estate. They did not see eye-to-eye at all and she left the Master of the Court offices with a sour taste. But she was glad that she had found out that she would have to prepare for the following day’s hearing.
Accompanied only by her friend, Oliver Haas of The Jazzy Rainbow, (she had not dared to tell her brothers about the hearing in case she lost), gugulethu arrived in court too late to deliver her paperwork to the Judge. She was advised to give it to the judge when ABSA’s case was called out. It was the last on the cause list.
“The long and the short of it, is that ABSA’s Adv Ramdhani “uhmmed and ahhed” but completely failed to make a convincing case,” states gugulethu. “Judge Radebe gave him a long enough rope and even I thought he was playing fast and loose with the law as he made the most ludicrous argument.”
When he realised he was losing, Ramdhani asked gugulethu and the judge for another adjournment sine die, but this time gugulethu was clued up enough to oppose it. The judge agreed with her.
gugulethu won the case because Judge Radebe agreed with her that a “dummy” contract was not a contract, that a piece of paper with only one signature does not a contract make and that bank statements could not substitute for a contract. After giving his deliberations, the judge ordered that the case be dismissed with costs. gugulethu and her friend Oliver were overjoyed.
“We left an unprepared and confused-looking Adv Ramdhani speechless in the court room. It was a well-earned victory, but it’s still not over. I still don’t have the title deeds to my mother’s house and until we have those in our possession, we can’t relax. But for now, we’re overjoyed. Our inheritance has been saved. Our home is secure.”
mnkabayi 
