Jaftha v Schoeman and Others (8617/01) [2003] ZAWCHC 26; [2003] 3 All SA 690 (C); 2003 (10) BCLR 1149 (C) (25 June 2003)

Jaftha v Schoeman and Others (8617/01) [2003] ZAWCHC 26; [2003] 3 All SA 690 (C); 2003 (10) BCLR 1149 (C) (25 June 2003)

The court found that section 66(1)(a) of the Magistrates' Courts Act does not infringe the right of access to adequate housing under section 26 of the Constitution. The process of execution against immovable property does not itself deprive the judgment debtor of access to housing; loss of occupation or eviction requires separate legal proceedings under the PIE Act, which provides procedural safeguards. The right of access to housing does not guarantee ownership or occupation of a specific home. The applicants' constitutional challenge to section 66(1)(a) was therefore refused, as the statutory process does not violate section 26, and the relief sought was not justified. The court also...

Citation
[2003] ZAWCHC 26
Parties
Applicant: Maggie Jaftha; Applicant: Christina van Rooyen; Respondent: Stephanus Schoeman; Respondent: Mietjie Skaarnek; Respondent: Markotter Attorneys; Respondent: Mr Chris Botes; Respondent: Minister of Housing in the National Government of South Africa; Respondent: Minister of Housing for the Provincial Administration of the Western Cape; Respondent: Clerk of the Magistrate's Court: Prince Albert; Respondent: Registrar of Deeds: Cape Town; Respondent: Minister of Justice
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 June 2003
Case Number
8617/01
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Application for constitutional invalidity of section 66(1)(a) of the Magistrates' Courts Act refused; no order as to costs.
Judges
D Van Reenen, H C Nel
Legal Topics
Right of Access to Housing, Magistrates Courts Act, Sale in Execution, Judicial Discretion, Arbitrary Eviction, State Aided Housing
Constitutional Law Civil Procedure Land and Property Right of Access to Housing Magistrates Courts Act Sale in Execution Judicial Discretion Arbitrary Eviction +1 more

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Parties

Maggie Jaftha

Applicant

Christina van Rooyen

Applicant

Stephanus Schoeman

Respondent

Mietjie Skaarnek

Respondent

Markotter Attorneys

Respondent

Mr Chris Botes

Respondent

Minister of Housing in the National Government of South Africa

Respondent

Minister of Housing for the Provincial Administration of the Western Cape

Respondent

Clerk of the Magistrate's Court: Prince Albert

Respondent

Registrar of Deeds: Cape Town

Respondent

Minister of Justice

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether section 66(1)(a) of the Magistrates' Courts Act 32 of 1944 is inconsistent with section 26 of the Constitution regarding the right of access to adequate housing.
  2. 2 Whether the execution process for trifling debts and without judicial oversight infringes constitutional rights.
  3. 3 Whether the loss of ownership or occupation of state-aided housing through sale in execution violates section 26.

Ratio Decidendi

The court found that section 66(1)(a) of the Magistrates' Courts Act does not infringe the right of access to adequate housing under section 26 of the Constitution. The process of execution against immovable property does not itself deprive the judgment debtor of access to housing; loss of occupation or eviction requires separate legal proceedings under the PIE Act, which provides procedural safeguards. The right of access to housing does not guarantee ownership or occupation of a specific home. The applicants' constitutional challenge to section 66(1)(a) was therefore refused, as the statutory process does not violate section 26, and the relief sought was not justified. The court also...

Court Disposition

Application for constitutional invalidity of section 66(1)(a) of the Magistrates' Courts Act refused; no order as to costs.

Orders

  • Prayers 4, 5, 6, 7 and 10 of the amended notices of motion are refused.
  • No order is made as regards costs.