Jaftha v Schoeman and others; Van Rooyen v Stoltz and others [2003] 3 All SA 690 (C)

Right of access to adequate housing – Section 26 of the Constitution of the Republic of South Africa – Whether section includes a right of ownership of immovable property and whether Section 66(1)(a) of the Magistrates Courts Act, 32 of 1994 which authorises sale of such immovable property in execution, including State aided housing is unconstitutional.

Jaftha v schoeman and others; Van Rooyen v Stoltz and others [2003] 3 All SA 690 (C)

Right of access to adequate housing – Section 26 of the Constitution of the Republic of South Africa – Whether section includes a right of ownership of immovable property and whether Section 66(1)(a) of the Magistrates Courts Act, 32 of 1994 which authorises sale of such immovable property in execution, including State aided housing is unconstitutional

Facts

The case concerns the issue whether attachment of immovable property constituting State aided houses is inconsistent with section 26 of the Constitution, which guarantees the right of access to adequate housing. The resolution of this issue was based on the question whether the right to adequate housing includes a right of ownership of immovable property.

In the case the Applicants had been evicted in execution of a court warrant following judgement debts. Their houses had been attached after failure to find immovable property to satisfy the judgement debts. This was done in accordance with the provisions of Section 66(1)(a) of the Magistrates Courts Act. The Applicants contended that Section 66(1)(a) of the MCA while its purpose was unobjectionable had enabled development of a procedure whereby individuals could be unnecessarily and disproportionately deprived of their homes. That the section permitted the sale of immovable property, which could constitute the home of the judgement debtor, for trifling debts and at unrealistic prices.

The Decision

Van Reenen J held

  1. The right delineated in section 26(1) is a right of access to adequate housing as distinct from the right to adequate housing in International Covenants. The right of access to adequate housing entails more than brick and mortar, it requires available land, appropriate services such as provision of water and removal of sewerage. The right also suggests that in addition to the State, other agents within society, including individuals are responsible and must be enabled by the State. The State must create the conditions for access to adequate housing for people of all economic levels. Due to the deterioration of existing residential structure and the changing needs of people, the State's obligation is one of an ongoing nature and never ends.
  2. That when the provisions of section 26(1) and (2) are read together, as they should, the scope of the right would best be described as correlative of the positive and negative obligations imposed thereby on the state as well as all other entities and persons. The content of the ambit of the right may vary from person to person, place to place and time to time because of the different social strata and economic levels prevailing.
  3. The ownership of immovable property is not encapsulated in the right of access to housing entrenched by section 26(1). Therefore loss of ownership as a consequence of the execution process does not violate the right of access to adequate housing. Once a judgement debtor has lost the legal basis for his or her occupation of an immovable property, he may elect to vacate the property voluntarily or simply continue to occupy it without any contractual arrangement with the purchaser. In the event of the latter the purchaser will be obliged to institute legal proceedings for the eviction of the judgement debtor. Similarly a sheriff who has contractually bound himself to provide vacant possession will have to institute proceedings in which the provisions of Prevention of Illegal and Unlawful Occupation of Land Act 19 of 1998 (PIE) will be considered.
  4. The section was therefore found not to be inconsistent with section 26(1) of the Constitution.
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