Gundwana v Steko Development CC and Others

The applicant, Ms Elsie Gundwana, purchased a residential property with finance secured by a mortgage bond from Nedcor Bank. After falling into arrears, the Bank obtained default judgment from the High Court registrar in 2003 under rule 31(5)(b) of the Uniform Rules of Court, including an order declaring her home specially executable. Ms Gundwana continued making payments for several years, unaware of the default judgment. In 2007 the property was sold in execution to Steko Development CC. Steko later obtained an eviction order against her. Ms Gundwana sought rescission of the default judgment in the High Court and approached the Constitutional Court for direct access, challenging the constitutionality of the registrar’s power to declare a person’s home executable without judicial oversight.

Direct access was granted. The Court declared that a registrar has no constitutional authority to declare residential immovable property specially executable under rule 31(5)(b). The order declaring Ms Gundwana’s home executable was set aside, together with the writ of execution based on it. The matter was remitted for determination of appropriate relief flowing from the invalid execution, with consequences for the eviction order.

This case is a leading authority on judicial oversight in execution against residential property. It extended the protection afforded in Jaftha v Schoeman by holding that even in the High Court, execution against a person’s home may not occur without a judge considering all relevant circumstances. The judgment fundamentally changed High Court practice and strengthened constitutional protection against arbitrary deprivation of housing.