Our Constitution is shaped by the socio-economic issues that challenge South Africa. Among these issues, the right to adequate housing as enshrined in s 26 of the Constitution must be weighed against a creditor’s right to enforce a judgment relating to the debtor’s property. Of course, as is the case with all rights, the right to housing is not absolute and is subject to limitations, which, in terms of s 36 may only be exercised within reason and if the limitation is justifiable in an open and democratic society which takes into consideration the following factors, (a) the nature of the right, (b) the purpose of the limitation, (c) the nature and extent of the limitation, (d) the relationship between the limitation and the purpose, and (e) less restrictive means to achieve the purpose. When considered together with the right to housing, they must be carefully balanced. This article endeavors to assess the validity of an execution of a primary residence by providing an analysis of Rule 46A of the Uniform Rules of Court, whilst simultaneously considering the Constitution.
Section 26 of the Constitution, 1996
The right to adequate housing envisaged by s 26(1) places an obligation on the State to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right” (s26(2)). Moreover, s 26(3) provides that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”.
Though this right is enshrined in our Constitution, it must be interpreted in line with, inter alia, the rights of creditors to execute immovable property to satisfy a judgment debt under a secured mortgage bond, provided such execution is reasonable and justifiable. I’ll revisit this point later in the article.
Rules 46 & 46A of the Uniform Rules of Court
The attachment and execution of immovable property is governed by Rule 46A of the Uniform Rules of Court, introduced in 2017. This outlines the steps that a creditor must take before it has the right to attach and sell a bonded residential property, which is the debtor’s primary residence, to satisfy its judgment debt. It is prudent, in fact, crucial, to consider the factors mentioned in the rule, when approaching a court for the execution of primary residential property.
In terms of Uniform Rule 46(1)(a), and subject to Rule 46A, it is a creditor’s obligation to ensure that all alternative avenues have been exhausted before proceeding with execution of any immovable property. It provides that “no writ of execution against immovable property of any judgment debtor shall be issued unless”– (i) a nulla bona return is first obtained which is indicative of the fact that the judgment debt, cannot be satisfied by the attachment of the debtor’s movable assets or (ii) “such immovable property has been declared to be specially executable by the court or judgment is granted by the Registrar under Rule 31(5).” Previously, Registrars were empowered to issue writs of attachment against immovable property, but this was no longer permitted when a primary residence was in issue, following the Constitutional Court’s ruling in Gundwana v Steko Development 2011(3) SA 608 (CC) that the position warranted judicial oversight in open court. This is reiterated by Rule 46A(2)(c) which provides that “the Registrar shall not issue a writ of execution against the residential immovable property of any judgment debtor unless a court has ordered execution against such property”.
While Rule 46(1)(a) relates to all immovable property, Rule 46A was introduced to regulate procedure when execution of a primary residential property is in issue. It provides that:
46A(1) This rule applies whenever an execution creditor seeks to execute against the residential immovable property of a judgment debtor.
(2)(a) A court considering an application under this rule must—
(i) establish whether the immovable property which the execution creditor intends to execute against is the primary residence of the judgment debtor; and
(ii) consider alternative means by the judgment debtor of satisfying the judgment debt, other than execution against the judgment debtor’s primary residence.
(b) A court shall not authorize execution against immovable property which is the primary residence of a judgment debtor unless the court, having considered all relevant factors, considers that execution against such property is warranted.
(c) The registrar shall not issue a writ of execution against the residential immovable property of any judgment debtor unless a court has ordered execution against such property.”
Rule 46A attempts to strike a clear balance between a debtor’s constitutional right to housing and the rights of creditors to protect their financial interests.
The question posed to a creditor by the court, in casu, is whether the execution of the primary residence is the only reasonable and realistic remedy to satisfy the debt.
To answer this question, our courts have relied on various landmark cases, two of which I shall discuss briefly, but a closer examination of the considerations taken into account when proceeding with attachment and sale proceedings is needed.
1. The Purpose of the Property
Our courts consider all relevant facts surrounding the personal circumstances of the judgment debtor, including the question of whether the property is the primary residence of the debtor, the inevitable consequences, should the property be attached and sold in execution, and whether such action would render the debtor de facto homeless (see Rule, 46A(9)(vi)). However, if the judgment debtor has multiple properties registered in his name, the approach adopted by the court is less rigorous and a court is then more likely to grant an order for the execution of that specific immovable property. This too, requires careful consideration by the court, regardless of whether the property is to be declared executable, as such an order, if granted, diminishes a real right. A real right is considered the highest form of a right a person can hold over a thing, however, as clearly illustrated, even ownership is subject to limitations imposed by laws.
2. The Debt Amount
To determine whether an execution is “just and equitable”, courts consider whether the debt is substantial when compared to the value of the property. They also consider whether, despite demand, the debtor has failed, refused or neglected to service the debt for an unreasonably extended period. A debt which is relatively minor, when compared to the value of the property, may not be considered a just and equitable reason for execution purposes, particularly where the debtor may lose their primary residence as a result. To illustrate this point, it may be considered unreasonable to attach and sell a property worth R1,200 000 if the outstanding balance due and owing to the creditor amounts to a mere R12,000. An obligation is placed on the creditor to proceed with a warrant of attachment to the value of the debt. Should the moveable assets be insufficient to satisfy the judgment debt, a nulla bona return is obtained by the sheriff on its return of service. Only thereafter, and with the leave of the court, can the creditor proceed to have the property declared specially executable.
This is discussed in Mogudi v Standard Bank of South Africa Limited (31834/1993) [2005] ZAGPJHC 494 (22 May 2025) where the Standard Bank of South Africa, in 1994, repossessed a home belonging to Mosai and her deceased husband, with whom she had been married in community of property, due to arrears owing on the property in the sum of R109,000. The bank proceeded to sell the property for a shocking R200. This practice by the banks appearesto be far more common than generally known. This amounted to an abuse of foreclosure procedures and was particularly frowned upon by the court. The court found that service of the initial summons in this case, was defective, and, had Mosai been aware of the proceedings, she would have been in a better position to oppose the action. This case is significant as it serves as a reminder to large financial institutions to not only consider their own financial interests, but to balance their rights to enforce against the fundamental human rights entrenched in our Bill of Rights, and to consider the right to human dignity and respect. When foreclosing on a building, someone’s home is being taken away. Therefore, our courts place emphasis on strict compliance with the grounds considered when declaring primary residential property executable.
3. Proportionality and the parties’ conduct
The debtor’s bona fide willingness, or lack thereof, to engage in settlement of the debt, is placed under scrutiny by the courts. This strengthens a creditor’s right to request execution, as the creditor may be able to establish a pattern of non-compliance, breach of obligations and evasiveness by the debtor. A creditor’s efforts to amicably resolve the matter out of court, as far as reasonably possible, so as to avoid incurring further legal costs for the debtor, will also meet with the court’s approval. This is particularly relevant as the very reason for the matter proceeding in court frequently relates to the debtor’s financial inability to extinguish its existing financial obligations.
Relevant decisions
The court in Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC) carefully considered the parties’ competing interests when considering an execution of a primary residence. It was held that a court order declaring property executable was constitutionally invalid, unless considered and adjudicated upon by an officer of the court.
In Gundwana above, the necessity for judicial oversight was highlighted when declaring immovable property, particularly, primary residences especially executable. Previously, Rule 31(5), which deals with default proceedings, permitted the registrar, rather than the court, to grant judgment. Uniform Rule 31(5)(b)(vi) was subsequently amended to require that an order declaring residential property specially executable may only be made in open court, to ensure judicial oversight and to place the court in a position to determine that all reasonable steps have been taken by the creditor to justify the execution of a primary residential property.
Post-execution procedure
Let us assume that the correct procedural steps have been followed and that the court, having considered the facts, grants an order declaring a property specially executable. In an ideal world, the property is then placed on auction and sold to the highest bidder. This, however, is seldom without complications.
The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998
Before a property may be sold, the occupants must be ordered to vacate the premises. Unfortunately, the occupants often remain in unlawful occupation following the sale and transfer of the property. At this point the new owner is compelled to bring an application in terms of The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (hereinafter referred to as the PIE Act) for the eviction of the occupier.
To bring such an eviction application the owner must comply with the following procedural steps:
1. Notice of the intended proceedings is brought by way of an application which gives the unlawful occupier the opportunity to vacate the property;
2. Service in eviction proceedings is of paramount importance. Personal service by the sheriff is a strict requirement. Furthermore, the notice in terms of s 4(2) of PIE must also be served on the municipality within which the property is situated and must take place at least 14 (fourteen) days before the hearing date;
3. It is essential that the owner demonstrates ongoing unlawful occupation by the occupiers’ non-compliance with the written notice; despite affording the occupier a reasonable time period within which to vacate the property or file a notice to oppose the eviction proceedings; The notice served on the unlawful occupier sets out the following:
a) The nature of the intended proceedings;
b) Details pertaining to the hearing such as the date and time;
c) The time period within which the oppose the proceedings;
d) The grounds upon which the eviction proceedings are based; and
e) The municipality is called upon to report on the availability of alternative accommodation
4. The unlawful occupier’s presence at the eviction hearing is required, but, should the occupier be absent from the proceedings without due notice on reasonable grounds, the eviction order may be granted in absentia, or postponed, at the court’s discretion.
5. The application is considered by the court, when the new owner must show just and equitable grounds for the eviction of the unlawful occupier i.e.,
5.1 That alternative accommodation has been made available to the occupier;
5.2 Despite demand, the unlawful occupier remains in occupation of the property unreasonably.
5.3 The court, in coming to a decision may consider whether the occupier falls within the scope of a vulnerable individual, including, but not limited to, female headed households, children, the elderly and persons with disabilities.
If the court, having considered all relevant circumstances, deems the granting of the eviction order necessary, the sheriff and even the South African Police Service may be deployed to facilitate the forceful evictions of the unlawful occupiers.
In conclusion, a carefully considered approach is essential to ensure a harmonious balance between the right to housing and a creditor’s rights to eviction in terms of Rule 46A. Our courts act as legal watchdogs in interpreting the rules and legislation governing the applicable rights of both parties and apply these principles to carefully balance the respective rights to inform a constitutionally sound finding.
