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[2011] ZASCA 184
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Mkhize v Umvoti Municipality and Others (628/2010) [2011] ZASCA 184; 2012 (1) SA 1 (SCA); [2011] 4 All SA 460 (SCA); 2012 (6) BCLR 635 (SCA) (30 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 628/2010
In
the matter between:
STIPHEN MKHIZE
…........................................................................................
Appellant
and
UMVOTI MUNICIPALITY
….................................................................
First
Respondent
NALINI KHAN
….............................................................................
Second
Respondent
NAVIN CHETTY
…..............................................................................
Third
Respondent
VUSI CORNELIUS DLAMINI
….......................................................
Fourth
Respondent
DAPHNE HLENGIWE
DLAMINI
…......................................................
Fifth
Respondent
NEL & STEVENS
…............................................................................
Sixth
Respondent
THE SHERIFF OF THE
MAGISTRATE’S
COURT UMVOTI
…...........................................
Seventh
Respondent
REGISTRAR OF DEEDS
….............................................................
Eighth
Respondent
Neutral citation:
Mkhize v Umvoti Municipality
(628/2010)
[2011]
ZASCA 184
(30 September 2011)
Coram:
Navsa,
Lewis, Snyders, Malan JJA and Meer AJA
Heard:
8
September 2011
Delivered: 30
September 2011
Summary:
Right to
adequate housing in terms of s 26(1) of Constitution –
interpretation of judgment and order in
Jaftha
v Schoeman & others; Van Rooyen v Scholtz & others
[2004] ZACC 25
;
2005
(2) SA 140
(CC)
___________________________________________________________________
ORDER
On appeal from:
Kwa-Zulu-Natal High Court, Pietermaritzburg (Wallis J sitting as
court of first instance):
The appeal is dismissed
with costs.
___________________________________________________________________
JUDGMENT
MALAN JA (NAVSA, LEWIS,
SNYDERS JJA and MEER AJA concurring)
[1]
This appeal concerns the construction of the judgment and order of
the Constitutional Court in
Jaftha
v Schoeman & others; Van Rooyen v Scholtz & others
.
1
The
question is whether the order made in
Jaftha
in
respect of s 66(1)(a) of the Magistrates’ Court 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 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 unconstitutional in
some respects. It remedied the defects by reading in words
into the
subsection providing for judicial oversight of the process of
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 The order
of the High Court is set aside and replaced with the following order:
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.
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”.’
[4] With the words read
in
s 66(1)(a)
provides as follows:
‘
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, 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.’ (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 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 in
Jaftha
,
by reading in the words referred to into s 66(1)(a), did not address
the precise constitutional problem before it but went further
and
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 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 plaintiff’s immovable property was
invalid because the warrant authorising execution
was issued by the
clerk of the Magistrates’ Court and without the judicial
supervision required by
Jaftha
,
and, consequently, was a breach of the plaintiff’s right to
adequate housing in terms of s 26(1). The first alternative
claim
came before the court below by way of a stated case.
[7]
The plaintiff and his late wife, who were married in community of
property, owned the immovable property which is the subject
of the
action. They had purchased it in 1998 for R25 000. It was vacant
land at that time but they built a house on it although
they did not
complete it. The plaintiff’s wife passed away in 2000 and the
plaintiff was the sole heir of her estate. The
plaintiff never
resided in the house but lived in another house also owned by him. He
also owned other properties. The plaintiff
was indebted to the first
respondent, the Umvoti Municipality, in respect of rates and other
charges relating to the immovable
property. The Municipality
instituted action against the plaintiff who did not defend the
action. Judgment by default was entered
against the plaintiff by the
clerk of the Magistrates’ Court for the district of Umvoti for
the sum of some R14 593
with costs and interest. A warrant of
execution was issued against his movable property leading to a
nulla
bona
return
of service. The clerk thereupon issued a warrant to execute against
immovable property, the property was attached and the
sale in
execution advertised.
9
[8] On 12 December 2003,
the property was sold in execution by the Sheriff to the second
defendant (the second respondent) as a
‘principal for the
benefit of a third party’ for R8 000. It was subsequently
transferred to the third defendant
(the third respondent), who is the
brother of the second defendant. At the material times the second
defendant was employed as
a credit controller by the Municipality. On
28 August 2004, the third defendant sold the property to the fourth
and fifth defendants
(the fourth and fifth respondents) for R350 000
and it was subsequently transferred to them. The proceeds of the sale
to the
fourth and fifth defendants were, at the request of the third
defendant, paid to the second defendant. The fourth and fifth
defendants
made improvements to the house built on the property. The
plaintiff made payments to the Municipality and their attorneys
before
the sale in execution in order to reduce his debt.
[9] It
was contended on behalf of the plaintiff that the judicial oversight
envisaged in
Jaftha
was
required in all cases of execution against immovable property in the
magistrates’ court. That, the plaintiff submitted,
was the
position whether or not the right to adequate housing was impaired.
In support of this contention the plaintiff relied
on the judgment of
the Constitutional Court in
Gundwana
.
10
On the
other hand, the submission on behalf of the Municipality and the
other defendants was that
Jaftha
and
Gundwana
were
concerned only with cases where the right to adequate housing was
impaired or potentially impaired. The words read in into
s 66(1)
should therefore be confined to cases where execution is sought
against immovable property and the property constitutes
the home of
the person concerned. They submitted that the requirements set in
Jaftha
did
not have to be complied with because the plaintiff did not reside on
the property. The fourth and fifth defendants further relied
on the
fact that they were purchasers of the house in good faith. The
plaintiff thus contended that the sale in execution as well
as the
subsequent sales should be set aside and the house transferred to the
plaintiff. The defendants asked for the dismissal
of the plaintiff’s
claim. The parties have agreed that should the court find for the
plaintiff, but hold that he is entitled
to damages only, an inquiry
into such damages should stand over for later adjudication.
[10]
In construing the judgment and order in
Jaftha
,
the court below
11
proceeded
on the basis that, given the factual context, they admitted of an
ambiguity. Following the judgment of this court in
Saunderson
,
12
Wallis
J held that the approach to be adopted was to focus on the issue that
was raised in
Jaftha
and to
construe its judgment and order in view of that issue.
13
Section
26(1) of the Constitution is not compromised in every case where
execution is levied against immovable property:
14
‘
The present
is a case where it is not compromised or even engaged. It would be
wrong to construe the declaration made and reading-in
decreed by the
Constitutional Court as applying to sales in execution in the
magistrates’ court that it did not consider
or hold to suffer
from a constitutional defect. That would amount to saying that the
Court has amended s 66(1)(a) in the absence
of a constitutional
foundation for doing so. Such a result would infringe the doctrine of
the separation of powers that is fundamental
to our constitutional
order.’
[11]
The two applicants in
Jaftha
were
unemployed women who occupied homes purchased with the assistance of
a State housing subsidy. They owed relatively small debts
that were
not related to their purchase of their homes. Judgment was taken
against them and, when execution against their movables
proved to be
unsuccessful, their homes were attached and sold in execution. It was
clear that if they were evicted because of the
sales in execution
they would have been left with no adequate accommodation. Wallis J,
after referring to certain passages in the
judgment, found that
Jaftha
was
concerned with s 66(1)(a) in a particular factual context requiring a
‘fact-bound inquiry’ to ascertain whether
s 26(1) rights
were compromised.
15
The
conclusion of
Jaftha
that s
66(1)(a) was unconstitutional was therefore a limited one applicable
only to execution against peoples’ homes.
[12]
In considering whether the order in
Jaftha
was
unconstitutional, Wallis J discussed the purposes of the
constitutional remedies of reading in, reading down, severance or
notional severance and concluded that it always took place within the
context of the separation of powers:
16
‘
Under the
Constitution responsibility for legislation lies with the legislative
bodies established in terms of the Constitution.
Where a court
interferes with legislation it does so within the ambit of its own
constitutional responsibility for determining
whether legislative
provisions comply with the Constitution. Whether it applies a remedy
of severance or one of reading-in, or
a combination of the two its
sole aim and function are to render the legislation compliant with
the provisions of the Constitution.
It is not vested with any general
legislative capacity merely by virtue of the fact that it has found a
particular statutory provision
not to comply with the Constitution.
Its function is to frame an appropriate order that remedies the
constitutional defect. It
is for this reason that stress is laid on
the court’s obligation to endeavour to be faithful to the
legislative scheme.’
The
dominant inquiry, he continued, is whether the chosen remedy is an
unconstitutional intrusion in the domain of the legislature.
Reading
in must conform and be consistent with the Constitution and its
fundamental values and should interfere as little as possible
with
the laws adopted by the legislature. Words should not be read in
unless a court can define with sufficient precision how the
statute
ought to be extended. Deference to the legislature and restraint are
called for to avoid a court’s engagement in
law-making.
17
[13]
Because the right of the plaintiff to adequate housing was not
compromised or engaged in the matter Wallis J declined the relief
sought. He came to essentially the same conclusion as the court in
Sauderson
where
Cameron and Nugent JJA stated:
18
‘
What was in
issue in
Jaftha
was not s
26(3) of the Constitution but rather s 26(1) – which enshrines
a right of access to adequate housing – and
the impact of that
right on execution against residential property. … Nor did the
Constitutional Court decide that s 26(1)
is compromised in every case
where execution is levied against residential property. It decided
only that a writ of execution that
would deprive a person of
“adequate housing” would compromise his or her s 26(1)
rights and would therefore need to
be justified as contemplated by s
36(1).’
I
agree with these observations. This is also the understanding of the
effect of
Jaftha
in
several judgments including that of the court below,
19
and is
confirmed by the amendment, made pursuant to the Rules Board for
Courts of Law Act 107 of 1985, to Rule 46 of the Uniform
Rules. The
amended Rule 46 is in effect a legislative interpretation of
Jaftha
demonstrating
the policy of the legislature.
20
The
effect of
Jaftha
is
discussed also in
Campus
Law Clinic, University of KwaZulu-Natal v Standard Bank of South
Africa Ltd & another
21
where
the Constitutional Court upheld the argument that –
‘
the
procedure provided for by
s 66
of the
Magistrates’ Courts Act
32 of 1944
for the issue of a warrant of execution against immovable
property was unconstitutional. It empowered the clerk of a
magistrate’s
court to issue a warrant of execution against
immovable property without any consideration of whether the effect of
that warrant
would be to deprive a person unjustifiably of their
right of access to housing as protected by s 26(1) of the
Constitution.’
This
is stated in so many words in
Jaftha
where
a consideration of the protection of s 25(1) of the Constitution
22
was
specifically left open:
23
‘
I have held
that s 66(1)(a) of the Act is over-broad and constitutes a violation
of s 26(1) of the Constitution to the extent that
it allows execution
against the homes of indigent debtors, where they lose their security
of tenure. I have held further that s
66(1)(a) is not justifiable and
cannot be saved to the extent that it allows for such executions
where no countervailing considerations
in favour of the creditor
justify the sales in execution.’
[14]
In
Gundwana
,
24
the
Constitutional Court overturned the decision in
Saunderson
to the
extent that it was found in
Saunderson
that
the Registrar of the High Court was competent to make execution
orders when granting default judgment in terms of Rule 31(5)(b)
of
the Uniform Rules. The Constitutional Court did not inquire whether
the understanding of the import or effect of
Jaftha
by the
Supreme Court of Appeal in
Saunderson
was
correct. It said that it was leaving that question open.
25
The
order made in
Gundwana
,
however, specifically states that ‘[i]t is declared
unconstitutional for a Registrar of a High Court to declare immovable
property specially executable when ordering default judgment under
rule 31(5) of the Uniform Rules of Court to the extent that
this
permits the sale in execution of the home of a person.’
26
The
effect of
Jaftha
and
Chief
Lesapo v North West Agricultural Bank,
27
a
matter concerning s 34 of the Constitution, was summarised in
Gundwana
as
follows:
28
‘
The combined
effect of these two cases is that execution may only follow upon
judgment in a court of law. And where execution against
homes of
indigent debtors who run the risk of losing their security of tenure
is sought after judgment on a money debt, further
judicial oversight
by a court of law of the execution process is a must.’
[15]
The facts in
Gundwana
need
not be repeated. The circumstances of the applicant in that case were
very similar to those of the applicants in
Jaftha
.
29
However,
the applicant in
Gundwana
had
passed a bond in favour of a bank in order to purchase her home.
Froneman J dealt with the contention of the bank that neither
the
person of the applicant nor her property fell within the
Jaftha
protection
(to which he referred as ‘the fact-bound argument’). A
related argument was that mortgaged property is not
affected by
Jaftha
because
mortgagors are willing to accept the risk of losing their property
when entering into the mortgage loan agreement. The second
contention, based on
Saunderson
,
30
was
rejected.
31
[16]
As far as the fact-bound argument is concerned, Froneman J gave two
reasons why it should not succeed: ‘The first is
that the
constitutional validity of the rule cannot depend on the subjective
position of a particular applicant. It is either objectively
valid or
it is not.’
32
The
second is that, although a preceding enquiry is necessary to
determine whether a matter is of the
Jaftha
kind,
it requires more than a mere checking of the summons to see whether a
cause of action is disclosed. The summons in
Gundwana
did
not indicate ‘whether the applicant was indigent or whether the
mortgaged property was her home.’
33
The
effect of
Gundwana
was
thus to overturn the judgment in
Saunderson
to the
extent that it was found that the Registrar was constitutionally
competent to make execution orders when granting default
judgment in
terms of Rule 31(5)(b).
34
It
also, as I have said, held that a mortgagee is in the same position
as other creditors. To this extent, it did not in fact leave
open the
question as to whether
Saunderson’s
interpretation
of
Jaftha
was
correct.
[17]
It was accepted in
Gundwana
that
the order in
Jaftha
operated
retrospectively but Froneman J stated that this did not entail that
all transfers subsequent to invalid sales in execution
were
automatically invalid. The sales in execution as well as the
transfers would still have to be set aside and this required
an
explanation for not bringing the rescission application earlier.
35
He
added:
36
‘
[I]t follows
that a just and equitable remedy following upon a declaration of
unconstitutionality should seek to ensure that only
deserving past
cases benefit from the declaration. I consider that this balance may
best be achieved by requiring that aggrieved
debtors who seek to set
aside past default judgments and execution orders granted against
them by the registrar must also show,
in addition to the normal
requirements for rescission, that a court, with full knowledge of all
the relevant facts existing at
the time of granting default judgment,
would nevertheless have refused leave to execute against specially
hypothecated property
that is the debtor’s home.’
Any
alleged abuse of the execution process may well play a role in
determining whether rescission should be granted.
37
[18]
In their discussions of
Jaftha
and
Sauderson
Max du
Plessis and Glenn Penfold
38
make
the following observations:
‘
The real
question is whether the defendant is likely to be deprived of
“access” to adequate housing should he or she
be deprived
of the property in question – that is, whether he or she is
likely to be left homeless as a result of the execution.
… Of
course, the Supreme Court of Appeal [in
Saunderson
]
is correct when it says (giving the example of a luxury or holiday
home) that not all cases of execution of immovable property
will have
this effect. But how is one to know whether the registrar is dealing
with a holiday home or the family’s only home?
As the
Constitutional Court stressed in
Jaftha
,
the only way to determine whether s 26(1) will be breached is on a
case-by-case basis; hence the need to ensure judicial oversight
of
the process in
all
cases. The
Supreme Court of Appeal’s reliance on the fact that the
properties were subject to mortgage bonds is also open
to doubt. The
Constitutional Court stressed in
Jaftha
that
where property was put up as security for a debt, execution would
“ordinarily” be appropriate, provided that there
had been
no abuse of the process. But again, we submit that the only way to
determine whether a case is ordinary or extraordinary
and to
determine whether there was an abuse is to provide judicial oversight
in
all
cases –
including when the property has been put up for security.’
39
(My
emphasis.)
‘
Judicial
oversight is therefore constitutionally required so that the judicial
officer can “engage in a balancing process”
and “consider
all the relevant circumstances of a case” to determine whether
there is good cause to order execution
against the immovable property
concerned (see
Jaftha
paras 42-3
and 55). At no point in its reasoning did the Constitutional Court
suggest that this constitutional duty only arose when
there was
formal opposition from the defendant. Nor did it allow application
for such orders that were not opposed to continue
to take place
before the registrar. Instead, it required judicial oversight in
all
cases to
ensure that the orders being granted did not violate s 26 (1) of the
Constitution. (My emphasis.)
In any event, the
idea of formal opposition as the trigger for constitutional
justification appears to miss the point. There are
many reasons why a
defendant may not formally or informally oppose such an order, not
least of which may be a lack of funds and
a lack of knowledge about
the legal process – something the Constitutional Court averted
to in
Jaftha
.
In our view there are also undoubtedly circumstances in which a court
would, despite the lack of opposition, be fulfilling its
constitutional duty by refusing to grant such an order. One such
example would be where the debt is for a disproportionately small
amount of money relating to the value of the home that will be
lost.’
40
[19]
The purpose of reading in as a constitutional remedy is to render the
legislation compliant with the provisions of the Constitution.
41
A
court is not vested with any general legislative capacity merely by
virtue of the fact that it has found a particular statutory
provision
not in compliance with the Constitution. The function of the court is
to find a means to remedy the constitutional defect
but, at the same
time, remain consistent with the legislative scheme. Courts should go
only as far as is required to protect the
entrenched right. Carol
Rogerson made the following observation:
42
‘
Courts
should certainly go as far as required to protect rights, but no
further. Interference with legitimate legislative purposes
should be
minimized and laws serving such purposes should be allowed to remain
operative to the extent that rights are not violated.
Legislation
which serves desirable social purposes may give rise to entitlements
which themselves deserve some protection.’
The
question arising from
Jaftha
was
thus not whether the court ventured into the legislative domain, as
the court below approached the matter, but whether the order,
that is
the specific constitutional remedy employed to protect the entrenched
right to adequate housing, is necessary for that
protection. It
should go no further. There is considerable force in the argument of
Du Plessis and Penhold that the only way to
determine whether the
right to adequate housing has been compromised is to require judicial
oversight in all cases of execution
against immovable property on a
case-by-case basis. This oversight is required also in the absence of
formal opposition and where
the debtor is in default or where he or
she is ignorant of his or her rights. Seen from this perspective the
order in
Jaftha
is
neither ambiguous nor too wide.
But
it does not follow that the absence of judicial oversight will render
the procedures followed, eg the issue of a warrant for
execution and
the subsequent sale in execution, invalid in all cases. The purpose
of the judicial oversight ordered in
Jaftha
is to
protect the right to adequate housing. Where, as in this case, the
right to adequate housing is not engaged, invalidity does
not
necessarily follow. This is so because the judgment and subsequent
sale in execution stand until set aside.
43
The
plaintiff did not bring an application to rescind the default
judgment entered against him.
[20]
But more importantly, it is so because the order made in
Jaftha
,
as the context of the judgment shows, is aimed at preventing the
infringement of the right to adequate housing. This is the sole
purpose of requiring judicial oversight in all cases of execution
against immovable property. Rule 46 of the Uniform Rules, as
amended,
is consistent with the order in
Jaftha
construed
in this manner.
[21] In the matter under
consideration, the plaintiff’s right to adequate housing was
not engaged or compromised, as the court
below found. I agree. The
stated case allows for no other conclusion: the immovable property
concerned was not the plaintiff’s
home, nor was it suggested
that he did not have access to adequate housing or that his right to
adequate housing was compromised.
In the result the appeal should be
dismissed.
The appeal is dismissed
with costs.
________________
F R MALAN
JUDGE OF APPEAL
NAVSA and SNYDERS JJA
(MEER AJA concurring):
[22] We have read the
judgment of our colleague Malan. We deem it necessary to briefly
state our own reasons for agreeing with his
conclusion. We do so for
the sake of clearing up the confusion arising out of the complexities
that other courts have found in
the application of
Jaftha
.
In our view
Jaftha
established a mechanism
to save s 66(1)(a) from constitutional invalidity, namely judicial
oversight of the execution of immovable
property in all cases, the
object of which is to determine whether s 26(1) rights are
implicated. Courts cannot
ante
omnia
decide
whether s 26(1) rights have been implicated without conducting a
proper investigation in discharging its oversight role.
[23] The reasoning of
Wallis J is set out in our colleague’s judgment and it is not
necessary to repeat it, save to refer
to para 40, in which the
following appears:
‘
In those
circumstances the question must be approached as one of principle. In
my view the orders in Jaftha are ambiguous because
they are capable
of being construed as being generally applicable to all cases of
execution against immovable property in the magistrates’
court,
whereas the case concerned only the possibility of such execution
infringing the debtor’s right of access to adequate
housing in
terms of s 26(1) of the Constitution.’
[24] We detect no
ambiguity in the order in
Jaftha.
In that case and later in
Gundwana
the Constitutional Court
made it clear that in all cases of execution against immovable
property judicial oversight is required.
Confusion was caused by a
multitude of judgments seeking to come to terms with
Jaftha
.
Determining whether s 26(1) rights are implicated is a fact based
enquiry. In
Gundwana
Froneman J said the
following:
‘
Some
preceding enquiry is necessary to determine whether the facts of a
particular matter are of the
Jaftha
-kind.’
44
Only once that enquiry
has been undertaken can the question asked by Wallis J, in the latter
part of the quotation in para 23 above,
be answered. The principle as
described in our opening paragraph has already clearly been
established in
Jaftha
.
[25] It is clear from
Gundwana
that insisting on
judicial scrutiny in every case should hold no terrors.
45
The level of enquiry will
vary from case to case and will always be
dependent on the
circumstances. As was pointed out in
Gundwana
the rule established in
Jaftha
‘
caution[s] courts
that in allowing execution against immovable property due regard
should be taken of the impact that this may have
on judgment debtors
who are poor and at risk of losing their homes’.
[26] The object of
judicial oversight is to determine whether rights in terms of s 26(1)
of the Constitution are implicated. In
the main a number of cases
grappling with
Jaftha
sought to arrive at that
determination without accepting that judicial oversight was required
in every case. How, it must be asked,
can a determination be made as
to whether s 26(1) rights are implicated, without the requisite
judicial oversight?. We are unable
to understand the difficulty of
applying the principle that it is necessary in every case to subject
the intended execution to
judicial scrutiny to see whether s 26(1)
rights are implicated. To not undertake such an enquiry would in fact
render the procedure
unconstitutional. Following that simple
principle would have avoided the confusion caused by a number of
judgments.
[27] As stated by our
colleague, applying
Jaftha
does not mean that all
past executions in which there was no enquiry are rendered invalid.
Once again, the validity of such executions
will depend on the
circumstances of each case.
[28] Had the principle
established in
Jaftha
been properly applied in
the court below the extended analysis of a judicial reading-in
exercise resorted to by it would have been
wholly unnecessary.
Likewise, the discussion about the separation of powers, was
superfluous. In any event, we have grave doubts
about the propriety
of a reading-in into an earlier reading-in by a higher court.
Furthermore the Constitutional Court has the
last say on the
constitutionality or otherwise of legislation and this also applies
to such remedies as are fashioned by it.
[29] In the present case,
judicial scrutiny of the common cause facts as set out in the stated
case leads to the compelling conclusion
that s 26(1) rights are not
implicated. The court below was therefore correct in its ultimate
conclusion. It is for these reasons
that we agree that the appeal
should fail.
________________________
M S NAVSA
JUDGE OF APPEAL
________________________
S SNYDERS
JUDGE OF APPEAL
________________________
Y S MEER
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant: Vos
Voormolen
Instructed by:
Cox Yeats Attorneys
Durban
McIntyre & Van der
Post
Bloemfontein
For First and Second
Respondents: RJ Seggie SC and IA Sardiwalla
Instructed by:
Kathy James Attorneys
Sherwood
Honey Attorneys Inc
Bloemfontein
For Fourth and Fifth
Respondents: P Govindasamy
Instructed by:
Govindasamy & Pillay
Pietermaritzburg
Mthembu & Van Vuuren
Inc
Bloemfontein
1
Jaftha
v Schoeman & others; Van Rooyen v Scholtz & others
[2004] ZACC 25
;
2005
(2) SA 140
(CC).
Jaftha
has
been construed by several courts, including the court below (
Mkhize
v Umvoti Municipality & others
2010
(4) SA 509
(KZP)):
Reshat Schloss v
Gordon Taramathi & others
Case
2657/2005 (C) 10 October 2005;
Standard
Bank of South Africa Ltd v Saunderson & others
2006
(2) SA 264
(SCA);
ABSA Bank Ltd v
Ntsane & another
[2006] ZAGPHC 115
;
2007 (3) SA 554
(T);
Standard Bank of South Africa v
Adams
2007 (1) SA 598
(C);
Nedbank
Ltd v Mashiya & another
2006 (4)
SA 422
(T);
Nedbank Ltd v Mortinson
[2005] ZAGPHC 85
;
2005 (6) SA 462
(W);
Standard
Bank of SA Ltd v Snyders and Eight Similar Cases
2005
(5) SA 610
(C);
First Rand Bank Ltd v
Folscher & another and similar matters
2011
(4) SA 314
(GNP);
Nedbank Ltd v Fraser
& another and four other cases
2011
(4) SA 363
(SGJ) and recently,
Gundwana
v Steko Development & others
2011
(3) SA 608
(CC).
2
Section
26 of the Constitution provides: ‘Housing.—(1) Everyone
has the right to have access to adequate
housing.’
3
Para
13.
4
Para
20.
5
Menqa
& another v Markom & others
2008
(2) SA 120
(SCA) para 10;
Ferreira v
Levin NO & others; Vryenhoek & others v Powell NO &
others
1996 (1) SA 984
(CC) paras
25-30;
Mvumvu & others v Minister
of Transport & another
2011 (2) SA
473
(CC) para 44 and see s 172(1)(b)(i) of the Constitution.
6
Para
40.
7
Paras
22, 37, 38 and 41 relying inter alia on
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298
(A) para 7 and
Ex parte
Women’s Legal Centre: In re Moise v Greater Germiston
Transitional Local Council
2001 (4) SA
1288
(CC) para 11.
8
Para
37.
9
The
clerk of the court acted pursuant to rule 36(1) of the Magistrates’
Courts Rules of Court first published under
GN
R1108 in
RG
980 of 21 June 1968. These rules were replaced by
the Rules regulating the Conduct of Proceedings in the Magistrates’
Courts
of South Africa
GN
33487
in R740 of 23 August 2010. Rule 36(1) of the new rules is worded the
same as the original rule 36(1).
10
Gundwana
v Steko Development & others
2011
(3) SA 608
(CC).
11
See
paras 17 ff of the judgment.
12
Standard
Bank of South Africa Ltd v Saunderson & others
2006
(2) SA 264
(SCA) paras 15 and 17 and also
Menqa
& another v Markom & others
2008
(2) SA 120
(SCA) paras 8, 21 and 29.
13
Para
40.
14
Para
40.
15
Para
41.
See paras 56 to 59 of
Jaftha
and
Standard
Bank of South Africa Ltd v Saunderson & others
2006
(2) SA 264
(SCA) para 17;
Nedbank Ltd v
Mortinson
[2005] ZAGPHC 85
;
2005 (6) SA 462
(W),
[2006]
2 All SA 506
(W).
16
Para
30.
17
Paras
30 ff and s
ee
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA
1
(CC) paras 61 ff;
S v Manamela &
another (Director-General of Justice Intervening)
2000
(3) SA 1
(CC) paras 54 ff;
Satchwell v
President of the Republic of South Africa & another
2002
(6) SA 1
(CC) paras 27 ff;
Zondi v MEC
for Traditional and Local Government Affairs & others
2005
(3) SA 589
(CC) paras 121 ff.
18
Standard
Bank of South Africa Ltd v Saunderson & others
2006
(2) SA 264
(SCA) para 15.
19
Cf
the cases cited in fn 1 above.
20
Rule
46(1) as amended reads: ‘No writ of execution against the
immovable property of any judgment debtor shall issue until
–
(i) a return shall have been made of any process which may have been
issued against movable property of the judgment
debtor from which it
appears that the said person has not sufficient movable property to
satisfy the writ; or (ii) such immovable
property shall have been
declared specially executable by the court or, in the case of a
judgment granted in terms of rule 31(5),
by the registrar: Provided
that, where the property sought to be attached is the primary
residence of the judgment debtor, no
writ shall issue unless the
court, having considered all the relevant circumstances, orders
execution against such property.’
For further commentary see H
J Erasmus and D E van Loggerenberg
Superior
Court Practice
(Service 37, 2011) by D
E van Loggerenberg and P B J Farlam (current authors) at B1-335 ff
and, for example, Appendix V to the
Practice Manual for North
Gauteng High Court (25 July 2011) and
First
Rand Bank Ltd v Folscher & another and similar matters
2011
(4) SA 314
(GNP).
21
Campus
Law Clinic, University of Kwazulu-Natal v Standard Bank of South
Africa Ltd & another
[2006] ZACC 5
;
2006 (6) SA
103
(CC) paras 7-8.
22
Para
22 and also
Gundwana
para
51.
23
Para
52. See also paras 50, 55, 56, 57, 58 and 62.
24
Gundwana
v Steko Development & others
2011
(3) SA 608
(CC) para 52.
Gundwana
is
discussed by Lisa Mills ‘Judges, not Registrars, to Declare
Homes Executable’ 2011
De Rebus
June 2011 50.
Jaftha
also attracted considerable academic
attention. See eg Eric C Christiansen ‘Adjudicating
Non-justiciable Rights: Socio-economic
Rights and the South African
Constitutional Court’
Columbia
Human Rights L Rev
(2007) 38 at 371
ff; A J van der Walt ‘Property, Social Justice and
Citizenship: Property Law in Post-Apartheid South Africa’
2008
(19)
Stellenbosch L Rev
325
at 328 ff.
25
P
ara
42.
26
And
see paras 34, 41, 49, 50, 58 and 59 of
Gundwana
.
See n 20 above for the amended Rule 46.
27
Chief
Lesapo v North West Agricultural Bank
[1999] ZACC 16
;
2000
(1) SA 409
(CC).
28
Para
41.
29
Read
with Rule 45(1).
30
See
paras 42 and 44 ff. In
Saunderson
para
18 it was said: ‘[T]he property owners here have willingly
bonded their property to the bank to obtain capital. Their
debt is
not extraneous, but is fused into the title of the property. The
effect of s 26(1) on such cases was not considered in
Jaftha
.
’
31
Para
44.
32
Para
43. See
Ferreira v Levin NO &
others; Vryenhoek & others v Powell NO & others
1996
(1) SA 984
(CC) para 26;
Chief Direko
Lesapo v North West Agricultural Bank & another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC) para 7.
33
Para
43.
34
Para
52.
35
Paras
57 and 58 and see
Menqa & another v
Markom & others
2008 (2) SA 120
(SCA);
Campbell v Botha & others
[2008] ZASCA 126
;
2009 (1) SA 238
(SCA).
36
Para
59.
37
Para
61.
38
‘
Bill
of Rights Jurisprudence’ 2005
Annual
Survey of South African Law
27
at 77 to 81 and 2006
Annual
Survey of South African Law
45
at 83 to 93.
39
2005
Annual Survey
87.
40
2006
Annual Survey
at
89-90.
41
See
above para 12 where the passage from the judgment of the court below
is cited.
42
Carol
Rogerson ‘
The Judicial Search for
Appropriate Remedies under the Charter: The Examples of Overbreath
and Vagueness’ in Robert J Sharpe
(ed)
Charter
Litigation
(1987) 233 at 288 cited
with approval in the Supreme Court of Canada in
R
v Schachter
[1992] 10 CRR (2d) 1 at
13-15 (followed in eg
Tighe v
McGillivray Estate
1994 CanLII 4126
(NS CA)
; 127 NSR (2d) 313; 112 DLR (4
th
)
201; 20 CRR (2d) 54 and
Christie v
British Columbia
2006 BCCA 59
(CanLII);
[2006] 3 WWR 437
; 48 BCLR (4
th
)
322) as well as in South Africa in eg
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA
1
(CC) paras 69 ff and in the court below paras 31 to 33.
43
See
para 17 above.
44
Para
43.
45
See
para 43.