Standard Bank v Saunderson

Standard Bank of South Africa Ltd v Saunderson and Others[1] is an important case in South African property law, heard in the Supreme Court of Appeal (SCA) by Howie P, Cameron JA, Nugent JA, Jafta JA and Mlambo JA on November 23, 2005, with judgment handed down on December 15.

Contents

Facts

Standard Bank 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,[2] 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,[3] 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: 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.[4]

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;"[5]
  2. that Jaftha did not find that all residential property was subject to section 26(1);[6]
  3. that the situation in Jaftha was "radically different" to the present one,[7] 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,"[8]and as the creditor was not a mortgagee with rights arising from an agreement;[9] 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.

See also

References

Books

Cases

Notes

  1. ^ 2006 (2) SA 264 (SCA).
  2. ^ s 31(5).
  3. ^ 2005 (2) SA 140 (CC).
  4. ^ s 26(1).
  5. ^ 273H.
  6. ^ 274B.
  7. ^ 274C.
  8. ^ 274D.
  9. ^ 274D-E.