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

• Jurisdiction: South Africa

Jaftha v Schoeman and Others;
Van Rooyen v Stoltz and Others
2005 (2) SA 140 (CC)

2005 (2) SA p140

Citation	2005 (2) SA 140 (CC)
Case No	CCT 74/03
Court	Constitutional Court
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
Heard	May 11, 2004
Judgment	October 8, 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.

Flynote : Sleutelwoorde G

Execution — Sale in execution — Of H immovable property — For trifling debt — Constitutionality of procedure — Failure to provide judicial oversight over sales in execution against immovable property of judgment debtors in s 66(1)(a) of Magistrates' Courts Act 32 of 1944 declared unconstitutional and invalid — Section 67 of Magistrates' Courts Act not unconstitutional to extent that it does not provide for I blanket prohibition against sales in execution of house below certain value.

Constitutional law — Human rights — Right to housing — Section 26 of Constitution — Effect of on sale in execution process in magistrates' courts — Section 26 to be read as a whole — Section 26(3) speaking directly to practice of forced removals and summary eviction from land and guaranteeing J

2005 (2) SA p141

that person would not be evicted from his/her home or have his/her home demolished without court order — Entire section aimed at A creating new dispensation in which everyone has adequate housing and in which State may not interfere with such access unless justifiable — Section 26 making decisive break from past — Any measure permitting person to be deprived of existing access to adequate housing limiting rights protected by s 26(1) — Measure may, however, be justified under s 36 of Constitution — Failure to provide judicial oversight B over sales in execution against immovable property of judgment debtors in s 66(1)(a) of Magistrates' Courts Act 32 of 1944 unconstitutional and invalid — Section 67 of Magistrates' Courts Act not unconstitutional to extent that it does not provide for blanket prohibition against sales in execution of house below certain value. C

Headnote : Kopnota

The appellants in two cases had had their homes sold in execution for debts of R250 and R190 respectively. The appellants applied in the High Court for orders setting aside the sales and execution and interdicting two of the respondents from taking transfer of their homes. The basis of the applications was that the sale in execution D process (that provided for in ss 66(1)(a) and 67 of the Magistrates' Courts Act 32 of 1944) was unconstitutional. The High Court held, in dismissing these contentions, that if the sheriff issued a nulla bona return the clerk of the court was obliged in terms of Rule 36 of the Magistrates' Courts Rules to issue and sign a warrant of execution against the immovable property of the debtor. Once execution took place the judgment debtor had two options: Either he E could vacate the premises voluntarily or he could remain in occupation. If he chose to vacate the premises the effective loss of the home was caused by the exercise of the debtor's own free will and not the execution process. If the debtor chose not to vacate the premises he or she would be holding over and the purchaser would be required to act in terms of the provisions of the Prevention of Illegal Eviction from and F Unlawful Occupation of Land Act 19 of 1998 to secure eviction. In this case the eviction would be caused by the separate legal proceedings instituted by the new owner and not the execution process. In the present further appeal, the appellants relied on the right of access to adequate housing as protected under s 26(1) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). They G argued that in terms thereof both the State and private parties had a duty not to interfere unjustifiably with any person's existing access to adequate housing and that s 66(1)(a) of Act 32 of 1944 was unconstitutional to the extent of its over-breadth in that it allowed a person's right to have access to adequate housing to be removed even in circumstances where it was unjustifiable, particularly so in the circumstances of the present case where the debtor was a H recipient of State-subsidised housing and such person was barred from receiving such assistance in the future if he or she lost a house pursuant to a sale in execution. In respect of the challenge to s 67, the appellants contended that the section protected certain assets belonging to a debtor from execution because it was recognised that they constituted necessities without which it would be unduly difficult for the debtor to survive. The appellants argued that the section was I unconstitutional to the extent that it failed to provide similar protection to the homes of debtors: the right of access to housing was constitutionally protected and the impugned provisions ought to protect the homes of debtors in circumstances where the loss of her or his home would render the debtor permanently homeless. To remedy this defect the appellants contended that J

2005 (2) SA p142

words should be read into s 67 to prohibit sales in execution against houses below a particular minimum value. The A appellants argued that the High Court had erred in rejecting the contention that there was a negative aspect to the rights in s 26. While not conceding that the impugned provisions violated the appellant's rights, counsel for the Minister of Justice and Constitutional Development (the ninth respondent) contended that the measures were reasonable and justified and that s 66(1)(a) was not unconstitutional because it was part of B the scheme of the Act and that ss 62 and 73 of the Act provided sufficient protection for debtors who wished to avoid the sale of their homes in execution.

Held, that against the backdrop of the apartheid legislation permitting the summary eviction of people from their homes and the criminalisation of occupation of land in contravention of that legislation, it was important to emphasise that s 26 of the C Constitution had to be read as a whole. Section 26(3) was the provision which spoke directly to the practice of forced removals and summary eviction from land and which guaranteed that a person would not be evicted from her or his home or have her or his home demolished without an order of court considering all of the circumstances relevant to the particular case. The whole section, however, was aimed at creating a D new dispensation in which every person had adequate housing and in which the State may not interfere with such access unless it would be justifiable to do so. Section 26 had to be seen as making that decisive break from the past. It emphasised the importance of adequate housing and in particular security of tenure in our new constitutional democracy. The indignity suffered as a result of evictions from homes, forced removals and the relocation to land often wholly inadequate for E housing needs had to be replaced with a system in which the State must strive to provide access to adequate housing for all and, where that exists, refrain from permitting people to be removed unless it could be justified. (Paragraphs [28] and [29] at 154C - 155C/D.)

Held, further, that the interpretation adopted by the High Court failed to take cognisance of the Court's various statements that F there was a negative content to socio-economic rights. It was not necessary in this case to delineate all the circumstances in which a measure would constitute a violation of the negative obligations imposed by the Constitution. However, at the very least, any measure which permitted a person to be deprived of existing access to adequate housing, limited the rights protected in s 26(1). Such a measure may, G however, be justified under s 36 of the Constitution. (Paragraphs [33] and [34] at 156G - I.)

Held, further, that there would be circumstances where it would be unjustifiable to order execution because the advantage that attached to a creditor who sought execution would be far outweighed by the immense prejudice and hardship caused to the debtor. The facts of the present case demonstrated the potential of the H s 66(1)(a) process to be abused by unscrupulous people who took advantage of the lack of knowledge and information of debtors similarly situated to the appellants. Execution in these circumstances would also be unjustifiable. The section was sufficiently broad to allow sales in execution to take place in circumstances where it would not be justifiable for them to be permitted. (Paragraphs [43] and [44] at 158I - 159B/C.) I

Held, further, that it was clear that s 66(1)(a) was so broad that it permitted sales in execution without judicial intervention even where they were unjustifiable. The fact that a permissive measure which had to be invoked by the debtor existed did not change the potentially unjustified executions that may occur when the process envisaged by s 66(1)(a) was initiated by creditors. So long as the possibility existed within the legislative framework J

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for sales in execution to occur where debtors' rights have been unjustifiably violated, the scheme was overbroad. (Paragraph A [48] at 159H/I - 160A.)

Held, further, that similar considerations applied to s 73 and that could also not save s 66(1)(a) from unconstitutionality. (Paragraph [49] at 160B - C.)

Held, further, that a blanket prohibition of the sort suggested by the appellants was not appropriate. A blanket prohibition against sales in execution below a particular value might well lead to a poverty trap preventing many poor people from improving their station B in life because of an incapacity to generate...