Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 08 October 2004
• Citation: 2005 (2) SA 140 (CC)
• Docket Number: CCT 74/03
• Hearing Date: 11 May 2004
• Counsel: G Marcus SC (with him P Hathorn and K Pillay) for the appellants. I Jamie SC (with him N Bawa) for the ninth respondent.
• Court: Constitutional Court

Mokgoro J: E

[1] This matter is about the question whether a law which permits the sale in execution of peoples' homes because they have not paid their debts, thereby removing their security of tenure, violates the right to have access to adequate housing, protected in s 26 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). F

[2] Specifically, the case concerns the constitutional validity of s 66(1)(a) and s 67 of the Magistrates' Courts Act 32 of 1944 (the Act) which deal with the sale in execution of property in order to satisfy a debt. The appellants, Ms Maggie Jaftha (Ms Jaftha) and Ms Christina van Rooyen (Ms Van Rooyen), approach this Court in terms of Rule 19 of the Constitutional Court Rules, 2003 appealing G against the judgment of the Cape High Court (the High Court) in the related matters of Jaftha v Schoeman and Others [1] (the Jaftha matter) and Van Rooyen v Stoltz and Others [2] (the Van Rooyen matter).

Factual background H

[3] The facts of the two cases are similar, Ms Jaftha is unemployed, of ill health and poor. She has only a standard 2 education. She suffers from heart problems and high blood pressure which prevent her from working. In 1997 she applied for and was granted a state housing subsidy with which she bought a home where she lived with her two children. I

Mokgoro J

[4] In 1998, Ms Jaftha borrowed R250 from the second respondent in the Jaftha matter (Ms Skaarnek), which was A to be repaid in instalments. Although Ms Jaftha had paid some of the instalments, Ms Skaarnek referred the matter to the third respondent in both matters (Markotter Attorneys), the only firm of attorneys in Prince Albert, on the grounds that Ms Jaftha had not repaid her debt. Judgment was taken against Ms Jaftha in the Prince Albert magistrate's court in an amount which had escalated to R632,45 B including interest and costs. Thereafter, and during the course of 2000, she made a further few payments through Markotter Attorneys [3] . However, Ms Jaftha was then hospitalised and when she returned home she discovered that her house was to be sold in a sale of execution to pay her outstanding debt to Ms Skaarnek. In March 2001 she was informed by Markotter Attorneys that C she would need to pay R5 500, including accrued interest, to prevent the sale of her home. Having made two further payments to Markotter Attorneys of R300 and R200 respectively, she went to their offices in July 2001 only to discover that she would have to pay R7 000 to prevent the sale of her home. This amount was way beyond her means and D Markotter Attorneys were not willing to give her another chance to pay. Ms Jaftha was forced to vacate her meagre property following its sale in execution for R5 000 on 17 August 2001 to the first respondent in the Jaftha matter (Mr Schoeman).

[5] Ms Van Rooyen is also an unemployed woman. She has three children. She too is poor and has never been to school. In 1997 her E husband acquired their home with a state subsidy of approximately R15 000. After her husband died in 1997, she inherited the home. In 1995 she purchased vegetables on credit to the value of approximately R190 from the second respondent in the Van Rooyen matter (Ms Goliath). In this case too, Ms Van Rooyen was unable to repay the F debt and Ms Goliath instituted proceedings which were also initiated by Markotter Attorneys against Ms Van Rooyen in the Prince Albert magistrate's court. The amount claimed was R198,30 plus interest and costs. Ms Van Rooyen's home was sold in execution for R1 000 on the G same day as that of Ms Jaftha. It is common cause that both appellants have unsatisfied judgments against them obtained by other creditors; in the case of Ms Jaftha four others and in the case of Ms Van Rooyen two others.

Proceedings in the High Court H

[6] Assisted by a lawyer from Cape Town who heard of their plight, Ms Jaftha and Ms Van Rooyen launched proceedings in the High Court. The essence of the relief that they sought was the setting aside of the sales in execution and interdicts restraining certain of the respondents from taking transfer of the appellants' homes pursuant to the sales in execution. Both appellants sought a costs order against I Markotter Attorneys. In addition, Ms Van Rooyen sought orders:

Mokgoro J

'Interdicting the first, third and fourth respondents from evicting any of those previously disadvantaged residents of Prince A Albert who have acquired ownership of immovable properties since 1994 with the assistance of state low cost housing subsidies (''the members of the class'') from their homes;'

and:

'Directing the fifth and sixth respondents to review all sales in execution of immovable properties in Prince Albert purchased B by members of the class with the assistance of low cost housing subsidies or grants provided by the state since 1994, as well as all evictions of members of the class from such immovable properties, and to assist members of the class in instituting legal proceedings to set aside such evictions or sales in execution where it appears that they have taken place in violation of rights entrenched in the Bill of Rights.' C

[7] Mr Schoeman, having initially indicated his intention to oppose the application, subsequently withdrew it. Although Ms Skaarnek, Mr Stoltz (the first respondent in the Van Rooyen matter) and Ms Goliath did not formally withdraw their opposition, they did not persist in their application nor were they represented by counsel. Mr Botes, the Sheriff of Prince Albert and the fourth D respondent in both matters, gave notice of his intention to abide the decision of the Court. The Minister of Housing in the National Government (the fifth respondent in both matters), the Minister of Housing for the Provincial Administration of the Western Cape (the sixth respondent in both matters), the Clerk of the Magistrate's Court in Prince Albert (the seventh respondent in both matters) and E the Registrar of Deeds: Cape Town (the eighth respondent in both matters) all filed notices indicating their intention to abide the decision of the High Court.

[8] Although Markotter Attorneys initially opposed the granting of relief, it subsequently withdrew its opposition and consented to an F order setting aside the sale in execution of Ms Jaftha's home; an interdict restraining Markotter Attorneys from attempting to evict Ms Jaftha from her home pursuant to the sale in execution; and similar orders in respect of the home of Ms Van Rooyen. Markotter Attorneys also reached agreement with Ms Jaftha and Ms Van Rooyen as to their liability for costs. As a consequence, only the constitutional G challenges were determined by the High Court.

[9] Only the Minister for Justice and Constitutional Development, the ninth respondent in both matters (the Minister), opposed the applications in the High Court. Counsel for the Minister contended that once the parties had settled the non-constitutional H issues in the case, there was no need for the Court to decide the constitutional questions, on the basis of the principle that where a matter can be decided without reaching the constitutional issues, it is best to do so. [4] The High Court rejected this contention and was of the view that both of the appellants had further I

Mokgoro J

unpaid debts and, based on the previous conduct of Markotter Attorneys, A it was fair to infer that the appellants' properties might be attached in the future. While the impugned provisions remained on the statute books, the appellants would always be in jeopardy of having their homes sold in a sale of execution. The question of the constitutionality of the impugned provisions was therefore deemed an independent and necessary aspect of the application. [5] B

[10] Ms Van Rooyen had originally sought leave in the High Court to act in the public interest and on behalf of all those who had benefited from low-cost housing. In view of its finding that the constitutional question had to be decided in order to resolve the appellants' position and that the appellants therefore had a direct C and personal interest in the case, the Court did not find it necessary to decide whether the second appellant could act in the public interest. [6]

[11] The approach of the High Court to standing must be supported. It is clear that the appellants, who owe other debts and could in the future find themselves in the same position, have standing D to prosecute their claim in their own right. Therefore, although the appellants urge this Court to find that they have standing in the public interest, given that they have standing in their own right it is not necessary to decide the question of public interest standing. E

[12] In the High Court it was common cause that if a recipient of a state housing subsidy loses ownership of the home in a sale in execution, he or she will be disqualified from obtaining other state-aided housing. It was also common cause that if the appellants had been evicted because of sales in execution, they would have had no suitable alternative accommodation. [7] The High F Court pointed to an alarming increase in the sales in execution of state-aided houses in Prince Albert and to the fact that the houses were often sold for substantially less than their value. [8] However, according to the High Court, if the inference could be drawn that this increase is due to the procedures for execution of immovable property provided for in the Act being abused, s 66(1)(a) was not necessarily G unconstitutional. [9]

[13] Regarding the content of the right to adequate housing the High Court was of the view that

'(w)hat does not admit of any doubt is that the right of access to housing does not encompass an entitlement to the ownership of housing; an entitlement to a particular form of housing; or an entitlement to H the occupation...