Standard Bank of South Africa Ltd v Saunderson 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 in the Supreme Court of Appeal

Supreme Court of Appeal of South Africa

The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...

 (SCA) by Howie P, Cameron JA

Edwin Cameron

Edwin Cameron is a South African Rhodes scholar and current Constitutional Court justice. Cameron served as a Supreme Court of Appeal judge from 2000 to 2008. He was the first senior South African official to state publicly that he was living with HIV/AIDS...

, Nugent JA, Jafta JA and Mlambo JA on November 23, 2005

2005 in South Africa

-January:* 13 January – Mark Thatcher pleads guilty to unwittingly bankrolling an alleged coup d'état plot in Equatorial Guinea.* 31 January – Thabo Mbeki, the President of South Africa, has a narrow escape when he is nearly hit by a car shortly after the African Union heads-of-state summit in...

, with judgment handed down on December 15.

Facts

Standard Bank

Standard Bank

The Standard Bank of South Africa Limited is one of South Africa's largest financial services groups. It operates in 30 countries around the world, including 17 in Africa.-History:...

 had issued a summons against Saunderson, asking for a judgement on debt owing and ancillary orders declaring the mortgaged property to be executable. Saunderson failed to defend.

The bank sought a default judgment under the Uniform Rules of Court, and the matter was dealt with in open court on the direction of the Deputy Judge President. The High Court granted a default judgement, but the execution was declined. Relying on Jaftha v Schoeman, the court held that, since the mortgaged property was residential, the onus was on the bank to show that execution was permissible in terms of the Constitution

Constitution of South Africa

The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...

: There should have been averments to the effect that the facts disclosed were sufficient to justify execution in terms of the right of access to adequate housing.

Judgment

On appeal to the SCA, it was found

1. "that s 26(1) does not confer a right of access to housing per se but only a right of access to 'adequate' housing," so that the right is "relative;"
2. that Jaftha did not find that all residential property was subject to section 26(1);
3. that the situation in Jaftha was "radically different" to the present one, as it involved a lack of judicial oversight, resulting in the debtor's being deprived of title to a home because of his failure to pay a "trifling extraneous debt,"and as the creditor was not a mortgagee with rights arising from an agreement; and
4. that, since most debtors do not defend cases, it is important that they be notified that the execution may infringe on their constitutional right of access to housing.

Books

• PJ Badenhorst, JM Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006).
• H Mostert and A Pope (eds) The Principles of The Law of Property in South Africa 1 ed (2010).

Cases

• Jaftha v Schoeman and Others 2005 (2) SA 140 (CC).
• Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA).