No execution without court intervention

In terms of the rules of court, a judgement debt must first be executed against movable property before any attempt is made to execute against immovable property. Should the amount recovered from the sale of movables not be enough to settle the debt, the plaintiff can approach the registrar of the High Court or the clerk of the Magistrates Court for a writ of execution against the immovable property of the debtor.

A number of court decisions have prompted a review of the impact of issuing a warrant of execution against immovable property and the right to housing enshrined in s26(1) of the Constitution. These decisions were revisited in the matter of Mkhize vs Umvoti Municipality and Others 2012 (6) BCLR 635 (SCA).

Never lived in this house or on the property

In this case, the circumstances were that the appellant had built a house on an undeveloped property, which he had bought. He had never lived in this house or on the property - he owned other properties and lived on those. He fell into arrears with the rates and other charges owed to the municipality and judgment by default was taken against him in a Magistrate's Court.

The appellant's movable property was not enough to satisfy the judgment, so the sheriff rendered a null a bona return. A warrant of execution under s66(1)(a) of the Magistrates Court Act was issued against the immovable property. The property was attached and sold in execution.

The appellant brought an action in the High Court seeking an order declaring that the sale in execution of his property was invalid. He argued that the Jafta vs Schoeman 2005(2) SA 140 (CC) case required that in all cases relating to the execution against immovable property, judicial oversight was required. As there had been no such judicial oversight in his case, he argued that the sale in execution should be set aside.

The High Court rejected his argument. It held that the Constitutional Court order in the Jafta case should be construed as applying only when the immovable property in respect of which execution is sought is the debtor's home - that is the primary residence.

Oversight was required

In considering the High Court's approach, the SCA found that judicial oversight was required in all cases of execution against immovable property conducted under s66(1)(a) of the Magistrates Court Act. The sole object of such was to establish whether the constitutional right to adequate housing was breached by the order granted and it was required also in the absence of formal opposition, and where the debtor is in default or ignorant of his rights.

It found, however, that the appellant's right to adequate housing had not been compromised. The immovable property concerned was not the appellant's home, nor was it suggested that he did not have access to adequate housing and invalidity of the sale did not follow.

In the light of the recent increase in the jurisdictional amount of the Magistrates Court, it would be wise to consider the practical effects of s66(1)(a) of the Magistrate's Court Act as interpreted in the Mkhize decision, particularly when executing on the immovable property of the debtor.

In the Magistrates Court, the court will be required to establish whether a debtor's right to adequate housing has been compromised in all cases where execution against immovable property is sought, even if the debtor does not oppose the proceedings.