Mkhize v Umvoti Municipality and Others

• Jurisdiction: South Africa
• Citation: 2012 (1) SA 1 (SCA)

Mkhize v Umvoti Municipality and Others
2012 (1) SA 1 (SCA)

2012 (1) SA p1

Citation	2012 (1) SA 1 (SCA)
Case No	628/2010; [2011] ZASCA 184
Court	Supreme Court of Appeal
Judge	Navsa JA, Lewis JA, Snyders JA, Malan JA and Meer AJA
Heard	September 8, 2011
Judgment	September 30, 2011
Counsel	AV Voormolen for the appellant.; RJ Seggie SC (with IA Sardiwalla) for the first and second respondents.; No appearance for the third respondent.; P Govindasamy (attorney) for the fourth and fifth respondents.

Flynote : Sleutelwoorde B

Execution — Sale in execution — Immovable property — Judicial oversight C — When required — Required in all cases of execution against immovable property with aim of ensuring that constitutional right to adequate housing not violated — Absence of oversight rendering execution procedures invalid only if right to housing in fact compromised — Execution conducted in absence of judicial oversight standing until set aside — Constitution, s 26(1) read with Magistrates' Courts Act 32 of 1944, s 66(1)(a).

Headnote : Kopnota

Judicial oversight is required in all cases of execution against immovable property conducted under s 66(1)(a) of the Magistrates' Courts Act 32 of 1944. The D sole object of such oversight is to establish whether the constitutional right to adequate housing was breached by the order granted, and it is required also in the absence of formal opposition and where the debtor is in default or ignorant of his or her rights. Since invalidity will only follow if it is found that the right to adequate housing was in fact compromised, past executions granted in the absence of judicial oversight will stand until set aside. (Paragraphs [19] and [26] – [27] at 13A – D and 14F – I.) E

Cases Considered

Annotations:

Reported cases

Southern Africa

Absa Bank Ltd v Ntsane and Another 2007 (3) SA 554 (T): referred to F

Campbell v Botha and Others 2009 (1) SA 238 (SCA): referred to

Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another 2006 (6) SA 103 (CC) (2006 (6) BCLR 669): dictum in para [7] applied

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420): applied G

2012 (1) SA p2

Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC) (2001 (8) BCLR 765): referred to A

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): dictum in paras [25] – [30] applied

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): B referred to

FirstRand Bank Ltd v Folscher and Another, and Similar Matters 2011 (4) SA 314 (GNP): referred to

Gundwana v Steko Development and Others 2011 (3) SA 608 (CC) (2011 (8) BCLR 792): applied

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78) explained and applied

Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA): applied C

Mkhize v Umvoti Municipality and Others 2010 (4) SA 509 (KZP): confirmed on appeal

Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC): dictum in para [44] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to D

Nedbank Ltd v Fraser and Another and Four Other Cases 2011 (4) SA 363 (GSJ): referred to

Nedbank Ltd v Mashiya and Another 2006 (4) SA 422 (T): referred to

Nedbank Ltd v Mortinson 2005 (6) SA 462 (W) ([2006] 2 All SA 506): E referred to

S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) (2000 (1) SACR 414; 2000 (5) BCLR 491): referred to

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986): referred to

Standard Bank of SA Ltd v Snyders and Eight Similar Cases 2005 (5) SA 610 (C) ([2006] 2 All SA 537): referred to

Standard Bank of South Africa Ltd v Adams 2007 (1) SA 598 (C): referred to F

Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA) (2006 (9) BCLR 1022; [2006] 2 All SA 382): referred to

Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) (2005 (4) BCLR 347): referred to.

Canada G

Christie v British Columbia (2006) 263 DLR (4th) 582 (48 BCLR (4th) 322; [2006] 3 WWR 437): referred to

R v Schachter [1992] 2 SCR 679 ((1992) 10 CRR (2d) 1 (SCC)): referred to

Tighe v McGillivray Estate (1994) 112 DLR (4th) 201 (NSCA) (127 NSR (2d) 313; 20 CRR (2d) 54): referred to.

Unreported cases H

Schloss v Taramathi and Others (WCC case No 2657/2005, 10 October 2005): referred to.

Statutes Considered

Statutes

I The Constitution of the Republic of South Africa, 1996, s 26(1): see Juta's Statutes of South Africa 2010/11 vol 5 at 1-29

The Magistrates' Courts Act 32 of 1944, s 66(1)(a): see Juta's Statutes of South Africa 2010/11 vol 1 at 2-37.

Case Information

Appeal against a decision in the KwaZulu-Natal High Court, Pietermaritzburg, J reported at 2010 (4) SA 509.

2012 (1) SA p3

AV Voormolen for the appellant. A

RJ Seggie SC (with IA Sardiwalla) for the first and second respondents.

No appearance for the third respondent.

P Govindasamy (attorney) for the fourth and fifth respondents.

Cur adv vult. B

Postea (September 30).

Order

The appeal is dismissed with costs. C

Judgment

Malan JA (Navsa JA, Lewis JA, Snyders JA and Meer AJA concurring):

[1] This appeal concerns the construction of the judgment and order of the Constitutional Court in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others. D [1] The question is whether the order made in Jaftha in respect of s 66(1)(a) of the Magistrates' Courts Act 32 of 1944 requires judicial oversight in all cases of execution against immovable property or only in those where the debtor can establish an infringement or potential infringement of the right of access to adequate housing as protected by E s 26(1) [2] of the Constitution. In the court below Wallis J found that the order in Jaftha was made in a particular factual context, that is where it could be demonstrated [3] that the sale concerned execution against peoples' homes in circumstances that could impair their existing or potential access to adequate housing. [4]

[2] In Jaftha the Constitutional Court held that s 66(1)(a) was F unconstitutional in some respects. It remedied the defects by reading in words into the subsection providing for judicial oversight of the process of

2012 (1) SA p4

Malan JA (Navsa JA, Lewis JA, Snyders JA and Meer AJA concurring)

A execution against immovable property. The order of unconstitutionality made in Jaftha was not qualified and is retrospective from the date of commencement of the Constitution. [5] The relevant events giving rise to this case all occurred before the judgment in Jaftha was delivered.

[3] The order made in Jaftha reads as follows:

'1.

B The order of the High Court is set aside and replaced with the following order:

1.1

The failure to provide judicial oversight over sales in execution against immovable property of judgment debtors in s 66(1)(a) of the Magistrates' Courts Act 32 of 1944 is declared to be unconstitutional and invalid.

1.2

C To remedy the defect s 66(1)(a) of the Magistrates' Courts Act 32 of 1944 is to be read as though the words a court, after consideration of all relevant circumstances, may order execution appear before the words against the immovable property of the party.'

D [4] With the words read in s 66(1)(a) provides as follows:

'66 Manner of execution

(1)(a) Whenever a court gives judgment for the payment of money or makes an order for the payment of money in instalments, such judgment, E in case of failure to pay such money forthwith, or such order in case of failure to pay any instalment at the time and in the manner ordered by the court, shall be enforceable by execution against the movable property and, if there is not found sufficient movable property to satisfy the judgment or order, or the court, on good cause shown, so orders, then a court, after consideration of all relevant circumstances, may order execution against the immovable property of the party against whom such judgment has been given or such order has been made.' F [The words read in are in italics.]

[5] Wallis J held that the order in Jaftha was ambiguous because it was capable of two constructions, that is as being applicable to all cases of G execution against immovable property, and as being applicable only to execution against immovable property infringing the debtor's right of access to adequate housing in terms of s 26(1) of the Constitution. [6] Because the order was wide and affected also sales in execution which did not suffer from any constitutional defect, he construed it as applying only to cases where the immovable property in respect of which execution is sought is the debtor's home. [7] He considered that the court H in Jaftha, by reading in the words referred to into s 66(1)(a), did not

2012 (1) SA p5

Malan JA (Navsa JA, Lewis JA, Snyders JA and Meer AJA concurring)

address the precise constitutional problem before it but went further and A thereby transgressed on the terrain of the legislature and infringed the principle of the separation of powers. [8]

[6] The plaintiff in this matter, Mr Stiphen Mkhize, who is the appellant before us, relied on three different claims, that is a main claim and two B alternative claims. The main claim and the second alternative claim were abandoned. The first alternative claim remained and was separated in terms of rule 33(4) from an alternative claim for damages. The cause of action of the first alternative claim is that the sale in execution of the...