Brief Summary

Execution — Sale in execution — Irregularities in execution process — Applicants, Jaftha and Van Rooyen, challenged the validity of sales in execution of their homes following default judgments against them. They alleged coercion by the sheriff to vacate their properties post-sale. The court found material irregularities in the execution process, leading to the sales being declared null and void. The court set aside the warrants of execution and interdicting further eviction attempts, affirming the need for constitutional protection of homes against execution for trifling debts.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were two related applications heard together in the High Court of South Africa (Cape of Good Hope Provincial Division). The proceedings arose from the attachment and sale in execution of the applicants’ state-aided residential properties in the Magistrates’ Court, followed by a constitutional challenge directed at the statutory framework permitting such execution.

The parties comprised two applicants (Ms Maggie Jaftha and Ms Christina van Rooyen) and multiple respondents, including the relevant judgment creditors, the purchasers at the sales in execution, Markotter Attorneys (who acted for the judgment creditors), the sheriff (Mr C A Botes), the Minister of Justice (joined later), and various state functionaries (including the Clerk of the Magistrates’ Court and the Registrar of Deeds). By the time of hearing, most private respondents did not actively oppose, and several state respondents indicated that they would abide the decision. The Minister of Justice advanced substantive argument on the remaining constitutional issue.

The procedural history materially shaped the scope of the dispute. The applicants obtained settlement-related relief setting aside the relevant warrants of execution and declaring the specific sales in execution null and void because of material irregularities in one or more procedural steps preceding those sales. After those settlements, the applicants persisted only with the constitutional component seeking to have section 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 declared inconsistent with section 26 of the Constitution, together with consequential “reading-in” type relief and referral to the Constitutional Court.

The general subject-matter of the dispute was whether the statutory execution procedure permitting sale in execution of immovable property constituting a judgment debtor’s home, including for trifling debts and without prior judicial oversight at the warrant stage, infringed the constitutional right of access to adequate housing.

2. Material Facts

The following facts were treated by the court as common cause or otherwise not placed in issue and were relied upon in resolving the constitutional question.

Ms Jaftha was the registered owner of Erf 1825, Prince Albert, on which a dwelling had been erected. A creditor (Ms Mietjie Skaarnek) obtained default judgment against her for R632,45 plus interest and costs. Pursuant to a warrant of execution, Jaftha’s immovable property was attached and sold in execution to Mr Schoeman for R5 000 on 17 August 2001. Four other creditors held default judgments against Jaftha but had not yet issued writs of execution.

Ms Van Rooyen, a widow, was the registered owner of Erf 1248, Prince Albert, also with a dwelling. A creditor (Ms Catherine Goliath) obtained default judgment against her for R198,30 plus costs. A warrant against movables produced a nulla bona return, after which Van Rooyen’s immovable property was attached and sold in execution to Mr Stoltz for R1 000 on 18 August 2001. Two other creditors held default judgments against Van Rooyen but had not yet issued writs of execution.

Both applicants alleged that the sheriff (Mr Botes) coerced them shortly after the sales in execution to vacate their homes. The judgment records that these allegations were not placed in issue. Ownership had, however, not yet been transferred to the purchasers.

The court received an agreed statement of facts from a related Prince Albert matter (the Koot application), describing another state-aided home (Erf 1063) sold in execution on 17 August 2001 for R500 to a partner in Markotter Attorneys, pursuant to warrants founded on judgment debts of R2 445,40 (plus interest and costs) and R158,41 (inclusive of costs) plus interest.

It was common cause that the State, through a national housing scheme between June 1997 and August 1998, caused low-cost houses to be built in Prince Albert at a cost of approximately R16 000 to R17 250 each, and that Jaftha, Van Rooyen, and Koot were each provided with such a house. It was also common cause that loss of ownership of such a house would disqualify a recipient from obtaining other state-aided housing, and that given the applicants’ financial circumstances they would not be able to acquire suitable alternative housing.

The court further relied on the common cause pattern that sales in execution of state-aided houses in Prince Albert increased dramatically during 2001, with a substantial number sold at prices ranging from R500 to R8 000, and that several were purchased by or connected to Markotter Attorneys.

Alongside these facts, the court accepted that although the specific warrants and sales had been set aside by consent due to procedural irregularities, the applicants faced a real risk of further execution steps in future given the existence of unsatisfied judgments (four against Jaftha; two against Van Rooyen) and the past conduct referred to in the papers. This risk was treated as the basis for the continuing relevance of the constitutional issue.

3. Legal Issues

The central question was a constitutional one: whether section 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 was inconsistent with section 26 of the Constitution to the extent that it permits and obliges the clerk of the court, after insufficient movables are found, to issue a warrant of execution against immovable property constituting the judgment debtor’s home, including where the debt is trifling or less invasive means are available.

The dispute required the court to determine primarily a question of law, namely the scope and content of the right in section 26 (read with section 7(2)) and whether the consequences of the execution process authorised by section 66(1)(a) infringed that right. The matter also involved the application of law to fact, because the applicants’ challenge was rooted in how execution against homes could affect their continued access to housing in circumstances of poverty and state-aided housing.

A further preliminary legal issue was whether, given that the applicants had already obtained settlement relief setting aside the specific warrants and sales, the court should avoid deciding the constitutional issue on the principle that matters should be resolved without reaching constitutional questions when possible. Closely related were questions of standing (locus standi) and whether the constitutional relief remained a live controversy due to the risk of repetition.

4. Court’s Reasoning

The court first addressed whether it was appropriate (or necessary) to reach the constitutional issue. It recorded the Minister of Justice’s reliance on the principle that where possible a case should be decided without deciding constitutional issues, with reference to Constitutional Court authority. The applicants’ response was that constitutional relief remained substantive because it was aimed at preventing renewed attachment and sale in execution in light of multiple unsatisfied judgments and the likelihood of recurrence. The court accepted that the likelihood of another infringement was a material issue independent of what had been resolved by settlement, concluded that the matters were not capable of being decided without reaching the constitutional issue, and held that the applicants had standing in terms of section 38(a) as persons acting in their own interests. The court therefore did not need to decide whether a class-action type procedure should be entertained under sections 38(c) or (d).

Turning to the merits, the court framed the enquiry as an objective determination of whether section 66(1)(a) conflicted with section 26. It approached the task by first delineating the meaning, nature, and ambit of section 26, drawing extensively on the Constitutional Court’s exposition in Government of the Republic of South Africa and Others v Grootboom and Others. The court emphasised that section 26(1) and (2) are related and must be read together, and that the right is one of access to adequate housing, not a freestanding entitlement to a house. The court further accepted that section 26(1) at least implies a negative obligation not to prevent or impair access to adequate housing, while section 26(2) describes the State’s positive obligation to take reasonable measures within available resources to progressively realise the right.

The court then explained the function of section 26(3), identifying its three core components: the requirement of a court order for eviction or demolition; the innovation that courts must consider all relevant circumstances; and the prohibition against legislation permitting arbitrary evictions. The court held that section 26(3) applies horizontally, encompasses all evictions, and that the mischief at which it is directed has been addressed through the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), including in circumstances where formerly lawful occupation becomes unlawful.

A key aspect of the reasoning was the court’s analysis of the execution process authorised by section 66(1)(a), read with the Magistrates’ Court rules and related provisions. The court described how the clerk issues a warrant under magistrates’ court rule 36 when presented with a warrant in conformity with the judgment, and how the sheriff attaches and sells immovable property under the statutory and rules framework. The court analysed the legal effect of attachment (a pignus judiciale that does not disturb ownership) and the two-stage nature of sale in execution (sale and transfer). It reasoned that until transfer occurs, the judgment debtor’s ownership and associated right to use the property remain legally intact.

The court treated the relationship between execution and eviction as decisive. It reasoned that the transfer of ownership consequent upon a sale in execution ends the debtor’s ownership, but does not itself amount to an eviction and does not automatically result in loss of occupation in a manner attributable to section 66(1)(a). Where the judgment debtor remains in occupation after transfer without a legal basis, the purchaser must institute separate eviction proceedings. In those proceedings, the court held, the procedural and substantive protections of PIE apply, and a court must consider relevant circumstances. The court therefore characterised eviction (and any resulting deprivation of access to that particular dwelling) as resulting from separate legal proceedings founded on a distinct cause, not from the mere existence or operation of the execution mechanism.

On the constitutional content of section 26, the court held that the right of access to adequate housing does not include an entitlement to ownership of housing, nor to a particular form of housing, nor to occupation of a specific unit. From that premise, it concluded that loss of ownership through execution and transfer does not infringe the right protected by section 26. The court accordingly found that neither the transfer following sale in execution, nor (a fortiori) the issuing of the warrant by the clerk, infringed section 26, regardless of the size of the debt or the availability of less invasive collection methods. The court also noted the existence of statutory restrictions introduced by the Housing Amendment Act 4 of 2001, section 10B, which placed restrictions on involuntary sale by certain persons in relation to state-aided housing, as part of the broader legislative context (without treating this as determinative of the constitutional enquiry).

Because the court held that section 66(1)(a) did not conflict with section 26, it refused the declaratory and consequential relief dependent on a finding of invalidity, including the proposed reading-in and the referral to the Constitutional Court in terms of the Constitutional Court Complementary Act.

Finally, on costs, the court applied Constitutional Court guidance that courts should be cautious in awarding costs against litigants seeking to enforce constitutional rights against the State, to avoid chilling effects. Although the applicants failed on the constitutional claim, the court regarded it as a genuine complaint on a point of substance and made no order as to costs.

5. Outcome and Relief

The court refused the constitutional and consequential prayers that remained for determination. It specifically refused prayers 4, 5, 6, 7 and 10 of the amended notices of motion, which included the declaration of constitutional invalidity of section 66(1)(a), the proposed reading-in relief, the proposed interpretive modifications to section 67, and the request for referral to the Constitutional Court.

No order was made as to costs.

Cases Cited

Bernstein and Others v Bester and Others NNO 1996(4) BCLR 449 (CC); 1996(2) SA 751 (CC)

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 (CC)

Coetzee v Government of the Republic of South Africa 1995(10) BCLR 1382 (CC); 1995(4) SA 631 (CC)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996(1) BCLR 1 (CC); 1996(1) SA 984 (CC)

New National Party of South Africa v Government of the Republic of South Africa and Others 1999(5) BCLR 489 (CC); 1999(3) SA 191 (CC)

S v Makwanyane and Another 1995(6) BCLR 665 (CC); 1995(3) SA 391 (CC); 1995(2) SACR 1 (CC)

Government of the Republic of South Africa and Others v Grootboom and Others 2000(11) BCLR 1169 (CC); 2001(1) SA 46 (CC)

Minister of Health v Treatment Action Campaign and Others (No 2) 2002(10) BCLR 1075 (CC); 2002(5) SA 721 (CC)

Nino Bonino v De Lange 1906 TS 120

Human v Rieseberg 1922 TPD 157

Oatorian Properties (Pty) Ltd v Maroun 1973(3) SA 779 (A)

Brisley v Drotsky 2002(4) SA 1 (SCA)

Ndlovu v Ngcobo; Bekker v Jika 2003(1) SA 113 (SCA); [2002] 4 All SA 334 (SCA)

Chief Lesapo v North West Agricultural Bank and Another 2000(1) SA 409 (CC)

Le Roux v Yskor Landgoed (Edms) Bpk en Andere 1984(4) SA 252 (T)

De Lange v Smuts NO and Others 1998(7) BCLR 779 (CC); 1998(3) SA 785 (CC)

Sedibe and Another v United Building Society and Another 1993(3) SA 671 (T)

Liquidators Union and Rhodesia Wholesale Ltd v Brown and Co 1922 AD 549

Schoerie NO v Syfrets Bank Ltd and Others 1997(1) SA 764 (D & CLD)

Goedhals v Deputy Sheriff of Albany 1913 CPD 108

Absa Bank Ltd v Sweet and Others 1993(1) SA 318 (C)

Adamson v Boshoff and Others 1975(3) SA 221 (C)

Motsepe v Commissioner for Inland Revenue 1997(2) SA 898 (CC); 1997(6) BCLR 692 (CC)

Sanderson v Attorney-General, Eastern Cape 1997(12) BCLR 1675 (CC)

Harksen v President of the Republic of South Africa and Others 2000(5) BCLR 478 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 7(2), 26, 34, 36, 38(a), 38(c), 38(d))

Magistrates’ Courts Act 32 of 1944 (sections 62, 65, 65A(1), 65J, 66(1)(a), 67, 68, 72)

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Constitutional Court Complementary Act 13 of 1995 (section 8(1)(a))

Housing Amendment Act 4 of 2001 (section 10B)

Rules of Court Cited

Magistrates’ Courts Rules (rule 36; rule 43)

Held

The court held that section 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 was not inconsistent with section 26 of the Constitution on the basis advanced. It held that the execution process against immovable property, including property constituting a judgment debtor’s home, does not in itself bring about an eviction and that any eviction would require separate proceedings subject to the protections of PIE.

It held further that the right of access to adequate housing in section 26 does not confer an entitlement to ownership of housing or to occupation of a specific dwelling, and therefore loss of ownership through sale in execution and transfer does not, without more, infringe section 26.

The court accordingly refused the prayers seeking a declaration of constitutional invalidity, the proposed reading-in and related relief, and the referral to the Constitutional Court. No costs order was made.

LEGAL PRINCIPLES

Section 26 of the Constitution, properly construed in light of Government of the Republic of South Africa and Others v Grootboom and Others, protects a right of access to adequate housing and does not amount to a guarantee of ownership of a home, nor an entitlement to a particular house or to occupation of a specific residential unit.

The statutory process of execution against immovable property under section 66(1)(a) was treated as legally distinct from the process of eviction. Attachment and sale in execution do not themselves amount to eviction, and eviction—if sought—requires separate proceedings in which a court must consider relevant circumstances, with the procedural and substantive protections of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 being applicable.

In relation to constitutional litigation costs, the court applied the principle that courts should be cautious about adverse costs orders against litigants who genuinely seek to vindicate constitutional rights against the State, to avoid a chilling effect, and may decline to award costs even where such litigants do not succeed.

Jaftha v Schoeman and Others (8617/01) [2003] ZAWCHC 26; [2003] 3 All SA 690 (C) (25 June 2003)