It is a rule of court that a judgment debt must first be executed against movable property before any attempt to execute against immovable property can be made1. This means that you first get a warrant of execution against movable goods. These then get sold and if the amount of money still isn't enough to settle the debt then the plaintiff approaches the registrar (high court) or clerk of the court (magistrates' court) for a writ of execution against immovable property.
However there is an exception to this rule. If there is a bond over the property then the creditor (normally the bank) is entitled to request that the debt be recovered immediately from the sale of the immovable property.
This whole process was put into confusion by Jaftha v Schoeman2, from which it appeared that an enquiry into the right to 'adequate housing' (s26(1) of the Constitution) in favour of the debtor must occur in order for the creditor to act against immovable property and that the debtor's circumstances must be alleged by the plaintiff in the summons - or else the summons would be defective.
The situation was then further muddied when, in Nedbank Limited v Mortinson3 Joffe J, indicated that the creditor's summons need not justify in advance any limitation on s 26 rights.
Fortunately the Supreme Court of Appeal has stepped in to clarify the situation in the case of Standard Bank of South Africa v Saunderson. The process is now as follows:
A creditor who wishes to act against a debtor's immovable property needs to put the following passage in the summons:
'The defendant's attention is drawn to section 26(1) of the Constitution of the Republic of South Africa which accords to everyone the right to have access to adequate housing. Should the defendant claim that the order for execution will infringe that right, it is incumbent on the defendant to place information supporting that claim before the court.'
If the defendant duly objects in terms of s26(1), then an enquiry into the circumstances of the debtor must be conducted by the judge or magistrate into the circumstances of the debtor. (It should be noted that this was always the case in terms of Rule 31(5) of the High Court Rules).
If there is no objection, and judgment is duly granted, then the clerk of the court or the registrar, as the case may be, will be entitled to issue the warrant of execution against the immovable property.
Even when the debtor objects to the sale of immovable property in terms of s26(1) of the constitution, the court indicated that it was unlikely that this objection would succeed if the source of the debt was a mortgage bond (as it was in the present case) as opposed to a completely separate debt (as in the Japhta case).
The main principle underlying this case is that a contravention of the constitution (s26(1)) should at least be alleged by the defendant before it should be necessary to conduct an enquiry.
1.Van Zyl The Judicial Practice of South Africa 2ed 205-208; Gerber v Stolze 1951 (2) SA 160 (T) 171-173; Sandton Finance (Pty) Ltd v Clerk of the Magistrate's Court, Johannesburg 1992 (1) SA 509 (W) 511B-C.
2. 2005 (2) SA 140 (CC).
3. Case No 4183/05 23 August 2005.
Electronic Law Manager Korbitec
Is the contention that reference can be made in the summons only? What is the position where judgment has already been granted and the plaintiff wishes to execute against the immovable property without executing against the movable property first: can reference be made to s 26(1) in the writ of execution against the immovable proprty ?
The first warrant of execution was issued in 2008 but not executed and application for re-issue was lodged in 2012 three years later. Does section 63 apply?