Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others

Ms Jaftha and Ms Van Rooyen were unemployed, poor, and poorly educated women who acquired low-cost state-subsidised homes in 1997. Ms Jaftha borrowed R250 from a creditor, which eventually escalated to R632.45 with interest and costs. Ms Van Rooyen purchased vegetables on credit worth approximately R190, which similarly escalated. Both failed to repay their debts, and judgment was obtained against them in the Prince Albert Magistrates' Court. Without judicial oversight, their homes were sold in execution for significantly less than their value (R5,000 and R1,000 respectively) to satisfy these trifling debts. The entire process occurred without court intervention beyond the initial default judgment entered by the clerk of the court. Both women became homeless and were disqualified from receiving future state housing assistance.

• Whether sections 66(1)(a) and 67 of the Magistrates' Courts Act 32 of 1944 violate the right of access to adequate housing protected in section 26 of the Constitution
• Whether section 26(1) of the Constitution contains a negative obligation not to interfere with existing access to adequate housing
• Whether the negative obligation in section 26 applies to private parties or only the state
• Whether the limitation on the right to housing is justifiable under section 36 of the Constitution
• The appropriate remedy for the constitutional defect in section 66(1)(a)
• Whether section 67 is unconstitutional for failing to protect homes from execution

The High Court order was set aside. Section 66(1)(a) of the Magistrates' Courts Act 32 of 1944 was declared unconstitutional and invalid to the extent that it failed to provide judicial oversight over sales in execution against immovable property. The constitutional defect was remedied by reading the words "a court, after consideration of all relevant circumstances, may order execution" into section 66(1)(a) before the words "against the immovable property of the party". The Registrar was directed to forward a copy of the judgment to the Law Society of the Cape of Good Hope regarding allegations against Markotter Attorneys. The ninth respondent (Minister for Justice and Constitutional Development) was ordered to pay the appellants' costs in the main application from 13 February 2002 and the costs of the application for joinder, including costs of two counsel.

Section 26(1) of the Constitution imposes both positive and negative obligations. The negative obligation requires that the state and private parties not interfere unjustifiably with existing access to adequate housing. Any measure that permits a person to be deprived of existing access to adequate housing limits the rights protected in section 26(1). Section 66(1)(a) of the Magistrates' Courts Act is unconstitutional to the extent that it permits sales in execution of homes without judicial oversight where such sales would be unjustifiable. Judicial oversight is required before execution against immovable property constituting a person's home to ensure courts can consider all relevant circumstances and balance the interests of creditors against the severe impact on debtors. The existence of provisions allowing debtors to seek relief (sections 62 and 73) does not cure the constitutional defect where the primary process permits unjustifiable deprivations without court intervention. Section 67 is not unconstitutional for failing to impose a blanket prohibition on execution against homes below a certain value.

The Court made several important observations: (1) Security of tenure is a central component of adequate housing under international law and South African constitutional jurisprudence. (2) The concept of adequate housing must be understood against South Africa's history of forced removals and racist evictions under apartheid. (3) Not all creditors are wealthy, and the interests of creditors must be considered in the balancing exercise. (4) Courts should seek creative alternatives that allow debt recovery while using execution only as a last resort, including consideration of instalment payment orders. (5) The underlying problem in these cases is poverty, not greed or carelessness - "what is really a welfare problem gets converted into a property one." (6) The Court noted the "alarming increase" in sales in execution of state-aided houses in Prince Albert, often for substantially less than their value. (7) It would be a "poverty trap" to impose a blanket prohibition on execution below a certain value, as this would prevent poor people from using their homes to raise capital. (8) The Court emphasized that there is "widely recognised legal and social value" in debtors meeting their obligations. (9) The Court referred serious allegations against Markotter Attorneys to the Law Society for investigation without making findings.

This is a landmark case on the interpretation and scope of section 26 of the Constitution (the right of access to adequate housing). It is the first detailed consideration by the Constitutional Court of the negative obligations imposed by socio-economic rights. The judgment affirms that section 26 protects not only the right to gain access to housing but also protects against unjustifiable interference with existing access to adequate housing. The case establishes that socio-economic rights have both positive and negative content, with the negative obligations applying immediately and not subject to progressive realization. It demonstrates the Court's commitment to protecting vulnerable and indigent people from loss of their homes through legal processes they do not understand. The case also provides important guidance on the principle of remedial precision and the use of reading-in as a constitutional remedy. It emphasizes the link between housing, dignity, and South Africa's history of forced removals, demonstrating how constitutional rights must be interpreted against historical context.