eviction - sale in execution - constitutionality of a Rule of Court - Constitutional Court

In this case SERI acted for Elsie Gundwana, a woman living in Thembalethu township outside George, who appealed to the Constitutional Court against an order evicting her from her home, from which she runs the only black-owned bed and breakfast in the area. 

The case challenges the constitutionality of granting orders authorising sales in execution of residential property without judicial oversight. Gundwana claims that her property was improperly sold in execution to the respondent - Steko Development CC - which now seeks her eviction. Part of her case relates to the constitutionality of the Rule of Court allowing a court Registrar (as opposed to a Judge) to authorise sales in execution. Preliminary written submissions were considered by the Court in July and August 2010. SERI filed further written submissions on behalf of the applicant on 16 November 2010.

The case was heard in the Constitutional Court on 10 February 2011. Judgment was handed down on 11 April 2011, where the Constitutional Court declared Rule 31 (5) of the Uniform Rules of Court constitutionally invalid to the extent that it permits a High Court registrar to authorise the sale of a person’s home. The judgment means that banks that wish to execute on mortgage bonds must approach a judge and show why the sale of a person’s home would be justifiable in all the circumstances of a particular case.

Froneman J, writing for the full court held that “where execution against the homes of indigent debtors who run the risk of losing their security of tenure is sought after a judgment on a money debt, further judicial oversight by a court of law  . . . is a must”. The Court went on to hold that while execution against mortgaged property is an ordinary part of economic life, an agreement to put one’s property at risk as security in a mortgage does not equate to a licence for banks sell a property in bad faith, or where it would otherwise be a disproportionate way to recover a debt.

The Court set aside the eviction order made against Ms Gundwana, and referred the case back to the High Court for her to challenge the sale of her home on the particular facts of her case.

Ms Gundwana was represented in Court by Adv Anna Marie de Vos SC and Adv Stuart Wilson (SERI’s Director of Litigation). Francois van Zyl Attorneys, George and the SERI Law Clinic, Johannesburg acted as her attorneys.

  • Press release (11 April 2011) here.
  • Judgment (11 April 2011) here.
  • Applicant's Written Submissions (16 November 2010) here.
  • Applicant's Practice Note (16 November 2010) here.