RSA-2011-1-006

a) South Africa / b) Constitutional Court / c)  / d) 11-04-2011 / e) CCT 44/10; [2011] ZACC 14 / f) Gundwana v. Steko Development CC and Others / g) www.saflii.org/za/cases/ZACC/2011/14.pdf / h) CODICES (English).

Keywords of the Systematic Thesaurus:

Keywords of the alphabetical index:

Bank, obligation, suspension / Constitution, constitutional validity / Constitution, infringement / Contract, obligation, failure to fulfil / Court, registrar, powers / Court, decision, execution / Enforcement, property claim, procedure / Execution, immovable property / Execution, proceedings, legal basis / Execution, writ / Housing, access / Housing, eviction, arbitrariness, protection / Loan, contract / Order, judicial / Residence, eviction / Property, real, eviction, procedure.

Headnotes:

Judicial supervision is necessary in all cases where a person’s home may be sold to meet a judgment debt. The right to adequate housing and freedom from arbitrary eviction requires that a court may grant an order declaring a person’s home specially executable in fulfilment of a judgment debt only after considering all the circumstances relevant to the case. A rule of court that permits a court official, the registrar, to issue an order declaring a person’s home specially executable without judicial consideration is unconsti-tutional and invalid.

Summary:

I. Section  26 of the Constitution guarantees a right of access to adequate housing and freedom from arbitrary eviction. It requires a court to consider all the circumstances relevant to a case before granting an order of eviction and provides that no legislation may permit arbitrary eviction. The Court held that Rule 31.5.b of the Uniform Rules of Court, which permits a High Court registrar to grant an order declaring mortgaged property that is a person’s home specially executable in fulfilment of a judgment debt, without consideration by a High Court judge, is unconstitutional and invalid.

The applicant purchased her primary residence under a mortgage bond with a bank under which the property was security for the loan. She fell into arrears with her monthly payments and the bank was granted a default judgment against her, along with an order declaring her property specially executable in satisfaction of the judgment debt, by a High Court registrar pursuant to Rule 31.5.b. The bank sold the applicant’s home in execution and the new purchaser brought successful eviction proceedings against her. The applicant challenged the eviction by bringing an application to have the original default judgment set aside. She argued that the power given to the registrar to issue the order was constitutionally invalid for failure to require judicial consideration of all of the relevant circumstances in an eviction case, as required by Section 26.

II. The Court (per Justice Froneman) upheld the applicant’s challenge. The Court found that Section  26 of the Constitution requires an evaluation of the facts of each case to determine whether a declaration that hypothecated property constituting a person’s home is specially executable may be made. It found that this kind of evaluation must be done by a court of law, not a registrar. So to the extent that the High Court Rules and practice allow the registrar to do so without judicial evaluation, they are unconstitutional. In reaching its conclusion, the Court rejected the «voluntary placing-at-risk argument» that the willingness of mortgagors to put their homes forward as security for home loans signified a waiver of their rights under Section  26 of the Constitution.

Supplementary information:

Legal norms referred to:

- Sections  26 and  172 of the Constitution of the Republic of South Africa, 1996;

- Sections 27A and 34 of the Supreme Court Act 59 of 1959;

- Section 66.1.a of the Magistrates’Court Act 32 of 1944;

- Renaming of High Courts Act 30 of 2008;

- Rules 31.5, 45.1 and 46.1 of the Uniform Rules of Court (Rules Board for Courts of Law Act 107 of 1985).

Cross-references:

- Jaftha v. Schoeman and Others; Van Rooyen v. Stoltz and Others, Bulletin 2004/2 [RSA-2004-2-010];

- Standard Bank of South Africa Ltd v. Saunderson and Others 2006 (2) South African Law Reports 264 (SCA); Gerber v. Stolze and Others 1951 (2) South African Law Reports 166 (T);

- Nedbank Ltd v. Mortinson 2005 (6) South African Law Reports 462 (W);

- Chief Lesapo v. North West Agricultural Bank and Another 2000 (1) South African Law Reports 409 (CC); 1999 (12) Butterwortsh Constitutional Law Reports 1420 (CC);

- Menqa and Another v. Markom and Others 2008 (2) South African Law Reports 120 (SCA).

Languages:

English.