Absa Bank Ltd v Ross and Another (82972/2016) [2018] ZAGPPHC 773 (16 April 2018)

Absa Bank Ltd v Ross and Another (82972/2016) [2018] ZAGPPHC 773 (16 April 2018)

The court found that the attachment of the proceeds of the sale of the first respondent's primary residence did not infringe her constitutional right to adequate housing. The obligation to realise the right to adequate housing under section 26(2) of the Constitution binds the state, not private parties such as the applicant bank. The respondent's argument that the proceeds of the sale should be protected as a substitute for her primary residence was rejected, as she voluntarily sold the property and the attachment of the proceeds would not render her homeless. The respondent currently had adequate accommodation, and there was no counterclaim for the release of the proceeds. The court...

Citation
[2018] ZAGPPHC 773
Parties
Applicant: Absa Bank Ltd; Respondent: Suzette Ross; Respondent: Jassat Mitchell Inc Attorneys
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 April 2018
Case Number
82972/2016
Procedural Posture
Urgent Application / Final Determination of Main Application and Reserved Costs
Outcome
Application granted in terms of prayers 1 and 2 of the applicant's amended notice of motion. Applicant ordered to pay costs of the first respondent's urgent application on attorney and client scale.
Judges
Louw
Legal Topics
Attachment of Proceeds, Right to Adequate Housing, Bill of Rights Limitation, Urgent Interdict, Costs on Attorney and Client Scale
Civil Procedure Constitutional Law Attachment of Proceeds Right to Adequate Housing Bill of Rights Limitation Urgent Interdict Costs on Attorney and Client Scale

Case Brief

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Parties

Absa Bank Ltd

Applicant

Suzette Ross

Respondent

Jassat Mitchell Inc Attorneys

Respondent

Procedural Posture

Urgent Application / Final Determination of Main Application and Reserved Costs

Legal Issues

  1. 1 Whether the attachment of the proceeds of the sale of the first respondent's primary residence infringes her constitutional right to adequate housing.
  2. 2 Whether the applicant is entitled to the proceeds held in trust to reduce the judgment debt.
  3. 3 Whether the applicant breached an undertaking regarding the handling of the sale proceeds and is liable for costs on an attorney and client scale.

Ratio Decidendi

The court found that the attachment of the proceeds of the sale of the first respondent's primary residence did not infringe her constitutional right to adequate housing. The obligation to realise the right to adequate housing under section 26(2) of the Constitution binds the state, not private parties such as the applicant bank. The respondent's argument that the proceeds of the sale should be protected as a substitute for her primary residence was rejected, as she voluntarily sold the property and the attachment of the proceeds would not render her homeless. The respondent currently had adequate accommodation, and there was no counterclaim for the release of the proceeds. The court...

Court Disposition

Application granted in terms of prayers 1 and 2 of the applicant's amended notice of motion. Applicant ordered to pay costs of the first respondent's urgent application on attorney and client scale.

Orders

  • The applicant's attorneys are directed to pay the money held in trust over to the applicant in reduction of the first respondent's judgment debt.
  • The applicant is ordered to pay the costs of the first respondent's urgent application on the attorney and client scale.