CCT44/10

[2011] ZACC 14

2011 (8) BCLR 792 (CC)

2011 (3) SA 608 (CC)

Froneman J

10 February 2011

11 April 2011

http://hdl.handle.net/20.500.12144/3623

The applicant unsuccessfully appealed against an eviction order in both the Western Cape High Court and the SCA. The applicant also lodged an application in the Western Cape High Court for the rescission of the default judgment. This application was postponed to enable her to pursue her application in the Constitutional Court. She approached the CC for leave to appeal the eviction order as well as direct access to argue that the execution order was not constitutionally valid.

Application for direct access in terms of Rule 18 read with section 167(6) of the Constitution to declare constitutionally invalid rule 31(5) of the Uniform Rules of Court, which allows a Registrar of the High Court to declare immovable property specially executable when ordering default judgment, to the extent that this permits the sale in execution of the home of a person. In this matter, default judgment and a warrant of execution were granted by the Registrar of the High Court against an immovable residential property. This case is confined to the potential invasion of ones' right to housing under section 26(1) and (3) of the Constitution. The Court granted direct access and declared the High Court Rule unconstitutional. Judgment: Froneman J (unanimous).