Standard Bank v Saunderson

Last updated

Standard Bank v Saunderson
Court Supreme Court of Appeal (South Africa)
Full case nameStandard Bank of South Africa Ltd v Saunderson and Others
Decided15 December 2005
Docket nos.358/05
Citation(s) [2005] ZASCA 131; [2006] 2 All SA 382 (SCA); 2006 (9) BCLR 1022 (SCA); 2006 (2) SA 264 (SCA)
Case history
Appealed from High Court of South Africa, Cape of Good Hope Provincial Division – Standard Bank of South Africa Limited v Snyders and Others [2005] ZAWCHC 51
Appealed to Constitutional Court of South Africa – Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Another [2006] ZACC 5
Court membership
Judges sitting Howie P, Cameron JA, Nugent JA, Jafta JA and Mlambo JA
Case opinions
Decision byCameron and Nugent JJA (unanimous)

Standard Bank of South Africa Ltd v Saunderson and Others is an important case in South African property law and civil procedure. It was heard in the Supreme Court of Appeal on 23 November 2005 and decided on 15 December 2005. In a unanimous judgment written by Judges of Appeal Edwin Cameron and Robert Nugent, the court dealt with the proper application of Jaftha v Schoeman. [1]

Contents

Background

In the High Court of South Africa, Standard Bank had issued a summons against Saunderson, asking for a judgement on debt owing and ancillary orders declaring the mortgaged property to be executable. Saunderson failed to defend. The bank sought a default judgment under the Uniform Rules of Court, which provides that:

whenever a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff, if he or she wishes to obtain judgment by default, shall file with the Registrar a written application for judgment against the defendant.

The registrar may then "grant judgment as requested." [2]

The matter was dealt with in open court on the direction of the Deputy Judge President. The Cape High Court granted a default judgement, but the execution was declined. The court held that the effect of the registration of a mortgage bond is that the borrower, by his own volition, compromises his rights of ownership until the debt is repaid. The bond curtails the right of property at its root, penetrating the rights of ownership, for the bondholder's rights are fused into the title itself.

Relying on Jaftha v Schoeman , Judge André Blignaut of the High Court held that, since the mortgaged property was residential, the onus was on the bank to show that execution was permissible in terms of the Constitution: There should have been averments to the effect that the facts disclosed were sufficient to justify execution in terms of the right of access to adequate housing. [3] The bank had to show that its applications were a justifiable limitation of that right. Because the summonses lacked such averments, they could not sustain an order of execution.

Judgment

On appeal to the Supreme Court of Appeal, it was found that the court a quo had misdirected itself. In particular, the High Court had misinterpreted Jaftha. Jaftha did not find that all residential property was subject to section 26(1), [4] and, moreover, the present situation was "radically different" to that in Jaftha: it involved a lack of judicial oversight, resulting in the debtor's being deprived of title to a home because of his failure to pay a "trifling extraneous debt," [5] and the creditor was not a mortgagee with rights arising from an agreement. [6] The court held that section 26(1) of the Constitution "does not confer a right of access to housing per se but only a right of access to 'adequate' housing," so that the right is "relative". [7] [8]

The court's order also included a practice direction instructing that, when a plaintiff claims relief embracing an order declaring immovable property executable, the summons initiating that action shall inform the defendant of his section 26(1) right and instruct that, "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." The court held that since most debtors do not defend cases, it is important that they be notified that the execution may infringe on their constitutional right of access to housing.

See also

Related Research Articles

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the defendant. A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

In law, a judgment, also spelled judgement, is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgments also generally provide the court's explanation of why it has chosen to make a particular court order.

<span class="mw-page-title-main">Foreclosure</span> Legal process where a lender recoups an unpaid loan by forcing the borrower to sell the collateral

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.

A creditor or lender is a party that has a claim on the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property and service. The second party is frequently called a debtor or borrower. The first party is called the creditor, which is the lender of property, service, or money.

Garnishment is a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant. Garnishment allows the plaintiff to take the money or property of the debtor from the person or institution that holds that property. A similar legal mechanism called execution allows the seizure of money or property held directly by the debtor.

Hypothec, sometimes tacit hypothec, is a term used in civil law systems or mixed legal systems to refer to a registered non-possessory real security over real estate, but under some jurisdictions it may sometimes also denote security on other collaterals such as securities, intellectual property rights or corporeal movable property, either ships only as opposed to other movables covered by a different type of right (pledge) in the legal systems of some countries, or any movables in legal systems of other countries. Common law has two main equivalents to the term: mortgages and non-possessory liens.

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

A writ of execution is a court order granted to put in force a judgment of possession obtained by a plaintiff from a court. When issuing a writ of execution, a court typically will order a sheriff or other similar official to take possession of property owned by a judgment debtor. Such property will often then be sold in a sheriff's sale and the proceeds remunerated to the plaintiff in partial or full satisfaction of the judgment. It is generally considered preferable for the sheriff simply to take possession of money from the defendant's bank account. If the judgment debtor owns real property, the judgment creditor can record the execution to "freeze" the title until the execution is satisfied.

Repossession, colloquially repo, is a "self-help" type of action, mainly in the United States, in which the party having right of ownership of the property in question takes the property back from the party having right of possession without invoking court proceedings. The property may then be sold by either the financial institution or third party sellers.

Judgment summons, in English law, a summons issued under the Debtors' Act 1869, on the application of a creditor who has obtained a judgment for the payment of a sum of money by instalments or otherwise, where the order for payment has not been complied with. The judgment summons cites the defendant to appear personally in court, and be examined on oath as to the means he has, or has had, since the date of the order or judgment made against him, to pay the same, and to show cause why he should not be committed to prison for his default. An order of commitment obtained in a judgment summons remains in force for a year only, and the extreme term of imprisonment is six weeks, dating from the time of lodging in prison.

The history of Roman law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. Though the periods in which these systems were in use overlapped one another and did not have definitive breaks, the legis actio system prevailed from the time of the XII Tables until about the end of the 2nd century BC, the formulary procedure was primarily used from the last century of the Republic until the end of the classical period, and cognitio extra ordinem was in use in post-classical times.

The collection of judgments in Virginia may be accomplished under a number of routes provided under Virginia law, depending on the amount of the judgment and the particular assets that the judgment creditor wishes to pursue.

<span class="mw-page-title-main">South African property law</span> Important aspects of redistribution agreement

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary management relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.

Thienhaus NO v Metje & Ziegler Ltd and Another is an important case in South African property law. It was heard in the Appellate Division, by Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Williamson JA and Wessels JA, on 22 February 1965, with judgment handed down on 1 April.

Gundwana v Steko Development and Others is an important case in South African property law, heard before the Constitutional Court on 10 February 2011.

Menqa and Another v Markom and Others is an important case in South African property law, heard in the Supreme Court of Appeal (SCA) on 5 November 2007, with judgment handed down on 30 November.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

<i>Jaftha v Schoeman</i> South African legal case

Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others is an important case in South African civil procedure and property law, decided in the Constitutional Court of South Africa on 8 October 2004. The court held unanimously that the Magistrates' Courts Act, 1944 was unconstitutional insofar as it did not provide for judicial oversight over sales in execution against the immovable property of judgment debtors. In a judgment written by Justice Yvonne Mokgoro, the court found that sales in execution limited the debtor's constitutional right to housing and that the prevailing execution scheme was overbroad because it permitted such sales to proceed even in circumstances where they limited that right unjustifiably.

Lubbe v Volkskas Bpk 1992 (3) SA 868 (A); [1992] 2 All SA 270 (A) is an important case in the South African law of lease. In October 1987, the appellant brought an urgent application before a single judge in which he applied for an order

  1. declaring that he had established a lien over the wheat crop on a certain part of the farm T; and
  2. instructing the deputy sheriff to sell the said farm subject to his lien.

The Fair Foreclosure Act (FFA), N.J.S.A §§ 2A:50-53 to 2A:50-73, is a state law that protects residential mortgage debtors and establishes a uniform statutory framework under which courts can more clearly identify the rights and remedies of the parties involved in foreclosure proceedings throughout New Jersey. The FFA was approved by the New Jersey State Legislature on September 5, 1995, and signed into law by Governor Christine Todd Whitman on December 6, 1995—nearly two years after the bill was first introduced in the State General Assembly on January 24, 1994. The New Jersey Legislature amended the FFA on September 19, 2017, to require mortgage servicers to consider debtors' good faith short sale offers and respond within 60 days of receiving them.

References

Books

Cases

Notes

  1. ↑ Kelly-Louw, Michelle (2007). "The right of access to adequate housing". Quarterly Law Review for People in Business. 15 (1): 35–39. ISSN   1021-7061.
  2. ↑ s 31(5).
  3. ↑ s 26(1).
  4. ↑ 274B.
  5. ↑ 274D.
  6. ↑ 274D-E.
  7. ↑ 273H.
  8. ↑ What constituted "adequate" was a fact-based enquiry.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.