Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (1) BCLR 78 (CC)

Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (1) BCLR 78 (CC)

Issue: Whether the execution of immovable property in terms of the Magistrates' Courts Act 32 of 1944 violates the right to adequate housing enshrined in section 26 of the Constitution.

Facts:

Two separate applications were brought before the Constitutional Court (CC), one by Jaftha and the other by Van Rooyen. In both cases, the applicants' homes had been sold in execution to satisfy their judgment debts. The applicants challenged the constitutionality of the provisions of the Magistrates' Courts Act 32 of 1944 that allowed for the execution of immovable property, arguing that this violated their right to adequate housing enshrined in section 26 of the Constitution.

Key Facts:

• Jaftha's home was sold in execution for a debt of R250.
• Van Rooyen's home was sold in execution for a debt of R190.
• The applicants argued that the execution of their homes violated their right to adequate housing enshrined in section 26 of the Constitution.

Court's Decision:

The CC, in a unanimous judgment, held that the execution of immovable property in terms of the Magistrates' Courts Act 32 of 1944 violated the right to adequate housing enshrined in section 26 of the Constitution.

The CC reasoned that the right to adequate housing is a justiciable right, meaning that it can be enforced in a court of law. The CC also reasoned that the right to adequate housing is not a mere aspirational right, but rather a fundamental right that the state has a positive obligation to fulfill.

The CC further reasoned that the execution of immovable property can have a devastating impact on a person's right to adequate housing. The CC found that the loss of a home can lead to homelessness, which can have a significant negative impact on a person's physical and mental health.

The CC also reasoned that the state has a number of alternative measures available to it to enforce judgment debts without resorting to the execution of immovable property. The CC found that these alternative measures, such as the attachment of wages or the sale of movable property, are less intrusive on the right to adequate housing.

Application of the Law to the Facts of the Case:

The CC applied the law to the facts of the case and found that the execution of immovable property in terms of the Magistrates' Courts Act 32 of 1944 violated the right to adequate housing enshrined in section 26 of the Constitution. The CC ordered that the sales of the applicants' homes be set aside.

Conclusion:

The CC's decision in Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (1) BCLR 78 (CC) is a significant case because it clarifies the law relating to the right to adequate housing in South Africa. The decision emphasizes that the right to adequate housing is a fundamental right that the state has a positive obligation to fulfill.

The decision also provides guidance to the courts, the legislature, and the executive on how to implement the right to adequate housing. The courts should be aware that the right to adequate housing is a justiciable right and that they must be vigilant in protecting this right. The legislature should review the Magistrates' Courts Act 32 of 1944 to ensure that it is consistent with the right to adequate housing. The executive should develop policies and programs to ensure that everyone in South Africa has access to adequate housing.