Gundwana v Steko Development and Others is an important case in South Africa

South Africa

The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...

n property

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law....

 law, heard before the Constitutional Court

Constitutional Court of South Africa

The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...

 on February 10, 2011

2011 in South Africa

- February :* 9 February – A 600MW generator failed catastrophically while performing over speed testing at Duvha Power Station -March:* 24 March – Henry Gordon Makgothi, teacher, defiance campaigner and 1956 treason trialist June...

.

Facts

Elsie Gundwana bought a home through a loan provided by the bank, securing her debt by a mortgage bond on the property. When subsequently she fell into arrears, the bank obtained, by default judgement, an order declaring her property to be executable. The property was accordingly sold four years later. An order for eviction was sought against Ms Gundwana, and the matter ended up at the Constitutional Court.

Issue

Gundwana sought orders that the registrar, acting under the Uniform Rules of Court, could not grant an order declaring a mortgaged home to be executable.

Judgment

The court held that the registrar's order, under section 31(5) of the Uniform Rules of Court, declaring residential property to be executable, was unconstitutional, because judicial oversight is required where execution is sought against indigent debtors.

Consequences

The Uniform Rules of Court now contains an amendment dealing with the consequences of this judgment:

(1)(a) No writ of execution against the immovable property of any judgment debtor shall issue until— a return shall have been made of any process which may have been issued against the movable property of the judgment debtor from which it appears that the said person has not sufficient movable property to satisfy the writ; or such immovable property shall have been declared to be specially executable by the court or, in the case of a judgment granted in terms of rule 31(5), by the registrar: Provided that, where the property sought to be attached is the primary residence of the judgment debtor, no writ shall issue unless the court, having considered all the relevant circumstances, orders execution against such property.

See also

• Jaftha v Schoeman
• South African property law
  South African property law
  South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law....
  
  
• Standard Bank v Saunderson
  Standard Bank v Saunderson
  Standard Bank of South Africa Ltd v Saunderson and Others is an important case in South African property law, heard in the Supreme Court of Appeal by Howie P, Cameron JA, Nugent JA, Jafta JA and Mlambo JA on November 23, 2005, with judgment handed down on December 15.- Facts :Standard Bank had...