The Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Another

Standard Bank instituted proceedings in the High Court against several mortgage debtors who were in default on home loans, seeking default judgments and orders declaring the mortgaged properties specially executable. Following the Constitutional Court’s decision in Jaftha v Schoeman, concerns arose about whether execution against immovable property without judicial oversight infringed section 26 of the Constitution. The Cape High Court refused to declare the properties executable, while the Supreme Court of Appeal (SCA) later overturned that decision and permitted execution, issuing a practice direction requiring debtors to be informed of their section 26 rights. The Campus Law Clinic, not a party to the earlier proceedings, applied to the Constitutional Court for leave to appeal against the SCA judgment, or alternatively for direct access, arguing that the matter raised important constitutional issues in the public interest.

The application for leave to appeal and the application for direct access were both dismissed. No order as to costs was made.

The case is significant for clarifying the Constitutional Court’s approach to public interest standing, leave to appeal, and direct access. It underscores the Court’s reluctance to decide complex and far-reaching constitutional questions without a full factual and legal record from the lower courts, particularly in matters involving housing rights and execution against immovable property.