CASE NO: CCT59/00
In the matter between:
STEPHANUS JOHANNES
MARTINUS DE BEER N.O Appellant and
THE NORTH CENTRAL LOCAL COUNCIL AND
THE SOUTH CENTRAL LOCAL COUNCIL 1
stRespondent
L G VAN TONDER N.O. 2
ndRespondent
ZAMEER KHAN 3
rdRespondent
and
UMHLATUZANA CIVIC ASSOCIATION Amicus curiae
WRITTEN ARGUMENT ON BEHALF OF
THE AMICUS CURIAE
THE ORDINANCE MUST BE READ AND INTERPRETED IN THE CONTEXT OF
THE BILL OF RIGHTS AS A WHOLE...2
EX PARTE PROCEDURE UNDER THE ORDINANCE...5
On a proper construction, sec 105(9) does not authorise an ex parte procedure ...5
Interpreting sec 105(9) in the constitutional era...13
Introduction: The impact of the constitution on sec 105(9) in relation to ex parte procedure ...14
The impact of ex parte procedure on constitutional rights...15
Ex parte procedure is inconsistent with sec 25(1) of the Constitution 16 DIRECT EXECUTION AGAINST IMMOVABLE PROPERTY IN RELATION TO THE RIGHT TO HOUSING...19
What sec 26 requires the state to do (and not do) ...20
The duty to ‘respect’ the right to housing ...21
The duty to ‘protect’ the right to housing...23
The practical workings and effect of the Ordinance in relation to the right to housing ...25
The Council’s answer on direct execution against immovable property30 The position of occupiers who are not owners ...33
THE JUSTIFICATION OFFERED BY THE COUNCIL ...35
SECTION 171 OF THE CONSTITUTION ...38
INTRODUCTION:
THE ORDINANCE MUST BE READ AND INTERPRETED IN THE CONTEXT OF THE BILL OF RIGHTS AS A WHOLE
1 Human rights can not be compartmentalised. They must be approached in an integrated rather than a disparate fashion, and analysed contextually rather than abstractly.
1The rights contained in the Bill of Rights must thus be understood not in isolation, but as part of a web of inter-related and mutually supporting rights.
21
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, 1998 (12) BCLR (CC) 1517 at para 112, 114 (Sachs J)
2
Case v Minister of Safety and Security 1996 (3) SA 617, 1996 (5) BCLR 609 (CC) at para 27 (Mokgoro J); S A National Defence Union v Minister of Defence 1999 (4) SA 469, 1999 (6) BCLR 615 (CC) at para 8 (O’Regan J);
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46, 2000
2 The ‘substantive’ rights are directly implicated in the consideration of what constitutes a fair procedure:
(11) BCLR 1169 (CC) [’Grootboom’] at para 23, 83 (Yacoob J)
‘In so far as the process of civil litigation is accordingly almost invariably directed at intrusion upon the defendant’s fundamental rights, the latter is entitled to demand that the process by which it is done be one which is fair. If it is not, the deprivation of his entrenched fundamental rights is rendered unconstitutional. The legislation and, depending on the reach of the bill of rights, the common-law rules governing civil litigation have to conform to the bill of rights.’3
3 Whether a particular procedure is ‘fair’ and therefore constitutionally justifiable will depend in part on its context and impact. For example, a summary procedure which has no impact on housing rights may be more tolerable than a similar procedure which invades the right to housing. In a case such as this, where the
3
Trengove ‘Evidence’ in Chaskalson (ed) Constitutional Law of South Africa (Revision Service 2) at 26-8, cited with approval in Konyn v Special Investigating Unit 1999 (1) SA 1001 (TkHC) at 1016. This passage is not to be found in the current edition of this volume, as the explicit requirement of a
‘fair’ public hearing in the 1996 Constitution has rendered redundant the
debate over whether sec 22 of the interim Constitution required fair civil
procedures: see Bernstein v Bester NO 1996 (2) SA 751, 1996 (4) BCLR 449
(CC) at para 105-106
consequence of the legal process is that people lose their homes, the question of whether the procedure is consistent with the Constitution must be determined in the context of the right to housing.
4 This is the approach which has been adopted by the Supreme Court of Canada. That Court held that although there is no general right to civil legal aid in Canada, a fair procedure in a child custody hearing required the provision of state-funded legal counsel, because of the importance of the various Charter rights which were implicated in the hearing.4
5
While the main attack in this case is based on section 34 of the Constitution, the requirements of that section should therefore not be understood in a narrow, blinkered or abstract fashion. The meaning and validity of Section 105(9) of theDurban Extended Powers Consolidated Ordinance 18 of 1976 (N) have to be determined in the light of the requirements of section 34 as understood in the light of the other relevant provisions of the Bill of Rights.
4
New Brunswick (Minister of Health and Community Services) v G(J) (1999) 66 CRR (2d) 267. See also the observation of L’Heureux-Dubé J at p 303:
‘All Charter rights strengthen and support each other’.
PART 1:
EX PARTE PROCEDURE UNDER THE ORDINANCE
On a proper construction, sec 105(9) does not authorise an ex parte procedure
6
Both the appellant5 and the Council6 appear to accept that section 105(9) of the Ordinance authorises an ex parte application by the Council for an order for the sale of rateable property in respect of which the rates have not been paid. This acceptance is presumably based on the judgment of McCall J in Tooze7where it was held that
‘ … section 105(9) does contemplate that the application referred to therein will be brought ex parte and without further notice to the defaulting ratepayers.’
85
See paragraph 88 of the written argument filed on behalf of the appellant.
6
See paragraph 20(c) of the written argument filed on behalf of the Council.
7
Tooze & another v City Council of Durban & others [1996] 3 All SA 229 (D).
8
Tooze, supra, at 243c-d.
7 Section 172(10) of the Local Authorities Ordinance 25 of 1974 (N) is in almost identical terms, and it too has been taken by the courts to authorise an ex parte application. That section provides as follows:
‘If, after publication of a notice in terms of subsection (8), such rates, penalties and charges are not paid within the period therein stated, a court of competent jurisdiction, upon the petition of the council showing the amount of rates and penalties then in arrear and that the notices provided for by subsections (2), (3) (a) and (8) have been given, may summarily order any such rateable property, or so much thereof as may be sufficient to satisfy the amounts set forth in paragraphs (a), (b), (c), (d) and (e) of this subsection, to be sold by public auction and the proceeds thereof to be paid in to court, and direct payment to the council of –
(a) ...
(b) ...
(c) ...
as prior charge and in preference to any mortgage, security of claim whatsoever (if any) affecting the property; provided that in all other respects any such sale shall be deemed to be a sale of immovable property in execution of the judgment of such court, save that it shall not be necessary to notify or consult the owner with regard to the sale or the conditions of sale.’
8
In In re Pennington Health Committee9 Howard J (as he then was), with whom Didcott J concurred, assumed that section 172(10) of the Local Authorities Ordinance authorised an ex parte procedure.It is important to appreciate that the matter before the court was an appeal against a decision of a magistrate that he did not have jurisdiction to hear an ex parte application which had been brought before him. The court held, on the basis of the terms of the Magistrate’s Courts Act and Rules, that the magistrate did not have jurisdiction to hear such an ex parte application. The Court held that the Ordinance could not validly enlarge the jurisdiction of the magistrate’s courts to
9
1980 (4) SA 243 (N).
authorise it to hear ex parte applications of the kind which had been brought before the magistrate. The Court was not called upon to interpret the section in the Ordinance.
9
In Germishuizen v Kingsburgh Town Council & others10Thirion J stated that section 172(10) of the Local Authorities Ordinance gives the court the power to summarily order the sale of the property on the ex parte application of the local authority.
11In this matter, too, the interpretation of the section in this respect does not appear to have been argued - it was assumed by the parties that the section authorised ex parte proceedings. This formed part of the reasoning only in so far as it was used by the judge as an example of the section’s serious inroads into the rights of property owners.
10
1993 (1) SA 757 (D).
11
Germishuizen v Kingsburgh Town Council & others, supra, at 759H-I.
10 As far as we have been able to determine, Tooze is the only reported case in which the question was argued whether either section 105(9) of the Durban Ordinance or section 172(10) of the Local Authorities Ordinance authorises an ex parte application. We submit that Tooze is wrong in this respect.
11 Section 105(9), shorn of irrelevancies, reads as follows:
‘If … such rates … are not paid …, a court of competent jurisdiction, upon the application of the Council showing the amount of rates … then in arrear … may summarily order any such rateable property … to be sold by public auction … and the Council shall thereupon have the right to have the property … sold in accordance with the court’s order without the necessity of issuing a writ or other process of court for that purpose; …’
12
Whether section 105(9) authorises an ex parte procedure turns in large measure on the meaning to be ascribed to the word ‘summarily’.13
The New Shorter Oxford English Dictionary defines ‘summarily’ to mean ‘by summary legal procedure’. In turn, it defines ‘summary’ to mean ‘carried out rapidly by the omission of certain formalities’. The Oxford Encyclopedic English Dictionarydefines ‘summary’ in relation to legal matters to mean
‘without the customary legal formalities’. The Collins English Dictionary defines ‘summary’ in relation to legal proceedings to mean ‘short and free from the complexities and delays of a full trial’.
14
There is much in the law reports12on the interpretation of the word ‘summarily’ in section 108(1) of the Magistrate’s Court Act 32 of 1944, which provides that
12
See S v Ntsane 1982 (3) SA 467 (T) at 473A-C; S v Nel 1991 (1) SA 730 (A)
any person who wilfully insults a judicial officer in court or wilfully interrupts the proceedings of the court or otherwise misbehaves in court, shall be ‘liable to be sentenced summarily or upon summons to a fine …’.
15
In S v Nel,
13the Appellate Division held that the section meant that if there was a need for the presiding officer to act speedily to protect the authority of the court, he or she should there and then attend to it. If the court decides to do so, then it acts ‘summarily’, in the wide sense of the word, against the person concerned. This is in contrast to the ordinary process of the law in criminal proceedings. In such a case the judicial officer would nevertheless still not act
‘summarily’ in the narrow sense of the word, i.e. by finding the ‘accused’ guilty of contempt without first giving him or her the opportunity of being heard. It was held that this would be such a drastic departure from the most
at 149J-750F; S v Memani 1994 (1) SA 515 (W) at 518C-E.
13
1991 (1) SA 730 (A) at 749H-750F.
fundamental principles of our legal system that it cannot be permitted other than in the most exceptional circumstances.
16
‘Summarily’ was accordingly ascribed a meaning in relation to the timing of a procedure rather than to its substance.1417 We submit that on similar reasoning, ‘summarily’ in section 105(9) of the Durban Ordinance refers to the process whereby the need for a money judgment and excussion against movables is avoided and the court can merely, on the arrears being demonstrated, order the property to be sold by public auction. It is too fundamental a principle of our system of civil procedure that a party against whom relief is sought be given notice of the proceedings, either prior to the relief being granted or immediately thereafter with the right to return to court and have the relief re-visited, for the right to notice to be abrogated without unambiguous language to that effect.
14
‘Summarily’ is also used in Uniform Rule 46(11) as a temporal reference and
not as an indicator that an affected person need not be given notice of proceedings.
18 In accordance with the meaning of ‘summarily’ in the dictionary definitions, on this interpretation the
‘formalities’ or ‘complexities’ which are left out or avoided by the procedure contemplated by section 105(9) are the usual requirements of attaining a money judgment prior to being able to execute, and the usual need to execute first against movables. (The clear intention of execution directly against the immovable property raises
constitutional difficulties with which we deal in detail below). The fundamental requirement of notice is however not abrogated by the section.
19 In Tooze, the reasoning of McCall J on why the section contemplates an ex parte procedure amounts to this: if the Legislature had intended that the application should be on notice to each ratepayer in terms of the rules of court -
(a) it would have been a simple matter to have said so;15
and
(b) there would be little point in the requirement that before the application could be made, not one but three notices should be given to the ratepayer.
1620 As to the first point, it is submitted that the proper presumption is in precisely the opposite direction: if the legislature had intended this drastic departure from ordinary procedure, one would expect it to have said so in the clearest terms. In the absence of unequivocal language to that effect, one should presume that no such drastic interference with normal procedure and elementary fairness was intended.
15
Tooze, supra, at 243b.
16
Tooze, supra, at 243b-c.
21 As to the second point, the notice requirements in the section can equally be seen to be safeguards which were introduced because of the serious consequences of permitting execution against immovables directly; waiving the requirement that a writ be issued; waiving the requirement of attachment of the property; and waiving the requirement that the owner be notified or consulted with regard to the sale or the conditions of sale.17
22 We submit that in this regard, it must also be borne in mind that the notices which the section requires are completely inadequate in so far as actually getting to the ratepayers is concerned. This aspect has been dealt with at some length in the argument filed on behalf of the appellant. The fact that there are three notices should not easily be interpreted as demonstrating a legislative intention to do away with service of process, in light of the fact that none of the notice requirements amounts to service of process as envisaged by the rules of court, and (more fundamentally) none of the notices has to reach the attention of the ratepayer.
17
As to the importance of these requirements of the common law and the usual execution procedure, see Germishuizen v Kingsburgh Town Council, supra at 759I to 760C.
23 In summary, we submit that there is nothing in the section which justifies an interpretation that the fundamental requirement of proper service of notice of proceedings is abandoned.
Interpreting sec 105(9) in the constitutional era
24 Section 39(2) of the Constitution directs that when interpreting any legislation, a court must promote the spirit, purport and objects of the Bill of Rights.
25 Decisions such as In re Pennington Health Committee and Germishuizen need to be treated with some caution in the constitutional era. As Ackermann J (for a unanimous court) pointed out in Nel v Le Roux18 in relation to section 205 of the Criminal Procedure Act
‘Judgments concerning the proper application and construction of section 205 which were delivered before the Constitution came into operation will not necessarily correctly reflect the post-constitutional position, because section 35(3) of the [interim] Constitution requires that this section now be construed by all courts ... having “due regard to the spirit, purport and objects of” Chapter 3.’
18
Nel v Le Roux NO 1996 (3) SA 562, 1996 (4) BCLR 592 (CC) at para 18
26 This principle has an even greater impact under the 1996 Constitution, which in section 39(2) contains a stronger directive (‘shall promote’) than section 35(3) of the interim Constitution (‘shall have due regard to’).
27 The section should therefore be interpreted in the manner which best promotes the protection of the rights in the Bill of Rights - including the right to a fair hearing, the right to property, and the right to housing. This is so even if the section is not unconstitutional on the Council’s interpretation of it (a question which we address in the following section). The instruction contained in section 39(2) is not designed only to save statutes from unconstitutionality - it creates a fundamental rule of statutory interpretation.
The impact of the constitution on sec 105(9) in relation to ex parte procedure
28 If it is held that in the pre-constitutional era, section 105(9) of the Durban Ordinance could legitimately be interpreted as authorising an ex parte procedure, that does not dispose of the matter. We submit that in that event:
28.1 the section as so interpreted is inconsistent with the Constitution;
28.2 the section can and should be interpreted in a manner which is consistent with the Constitution, by reading it in a manner which does not permit ex parte proceedings;
28.3 if it is not reasonably capable of such an interpretation, the section is inconsistent with the Constitution and pro tanto invalid.
The impact of ex parte procedure on constitutional rights
29 The section as interpreted in Tooze authorises very serious inroads into constitutionally protected rights. The rights directly affected are those in sections 34 (access to courts), 25 (property) and 26 (housing).
30 The argument filed on behalf of the appellant deals with this issue at length in relation to section 34 of the Constitution. We do not intend to repeat the arguments as to why the ex parte procedure is inconsistent with section 34, standing by itself.
31 In this section of the argument, we make submissions as to inconsistency with section 25(1) of the Constitution.
In the next section, we deal with the impact of the extraordinary procedure on the right to housing.
Ex parte procedure is inconsistent with sec 25(1) of the Constitution
32 Section 25(1) of the Constitution provides that ‘no law may permit arbitrary deprivation of property’.
33 Section 105(9) is a law which permits the deprivation of property. The question is whether the deprivation is arbitrary.
34 A prohibition on arbitrariness contains within it the protection of procedural fairness.19 For a deprivation not to be arbitrary, it must be in accordance with a fair procedure.20
35 It is submitted that a procedure which enables a party to obtain a judgment
35.1 without service of court process
19
De Lange v Smuts NO 1998 (3) SA 785, 1998 (7) BCLR 779 (CC) at para 130-131 (Mokgoro J)
20
Janse van Rensburg v Minister van Handel en Nywerhede 1999 (2) BCLR 204 (T) at 221 E-F (van Dijkhorst J); Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2) BCLR 151 (C) at para 82 (Van Zyl J)
35.2 without any requirement that the proceedings actually come to the attention of the defendant
35.3 without any appeal or other procedure for re-visiting the matter, which can be invoked as a matter of right; and therefore
35.4 without any effective right to oppose the claim
is inherently unfair.
36 A law which permits deprivation of property pursuant to such a procedure, permits arbitrary deprivation of property. It is therefore submitted that if section 105(9) bears the meaning for which the appellant and the Council contend, it is inconsistent with section 25(1) of the Constitution.
37 If (as we contend) the section is unconstitutional unless the more narrow interpretation is adopted, then a court ought in any event to adopt an interpretation which avoids the conclusion of unconstitutionality, if it is reasonably capable of that interpretation. Although the 1996 Constitution does not contain a provision to the same effect as section 35(2) of the interim Constitution, it remains a fundamental principle of interpretation that if a contested law is reasonably capable of an interpretation which does not exceed constitutional limits, then it should be given that interpretation.21
38 Section 39(2) and the general principles of interpretation accordingly require that a court prefer the meaning which promotes the achievement of the Bill of Rights, and which (if necessary) saves it from unconstitutionality - namely that it does not authorise an ex parte procedure.
21
De Lange v Smuts NO 1998 (3) SA 785, 1998 (7) BCLR 779 (CC) at para 85
(Ackermann J). See also Kentridge and Spitz ‘Interpretation’ in Chaskalson
(ed) Constitutional Law of South Africa (Revision Service 5, 1999) at 11-37 to
11-38
39 If it is held that the wording of section 105(9) is such that this can not be done, the section is pro tanto inconsistent with the Constitution and invalid.
PART 2
DIRECT EXECUTION AGAINST IMMOVABLE PROPERTY IN RELATION TO THE RIGHT TO HOUSING
40 The appellant has set out in some detail the extent to which the procedures created by the Ordinance deviate from those created by the Rules of Court. We do not intend to repeat that analysis. However, in this section of the argument we draw attention in particular to that aspect of section 105(9) which has a direct impact on the right to housing, by enabling the Council to sell the immovable property of the ratepayer without first executing against his or her movable property. This summary process is inconsistent with
40.1 High Court Rule 45(1), which provides that
‘except where immovable property has been specially declared executable by the court or ... the registrar, no such process shall issue against the immovable property of any person until a return shall have been made of any process which may have been issued against his movable property, and the registrar perceives therefrom that the said person has not sufficient movable property to satisfy the writ’.
40.2 Magistrate’s Court Rule 66(1)(a), which provides that a judgment is executable against movable property
‘and, if there is not found sufficient movable property to satisfy the judgment or order, or the court, on good cause shown, so orders, then against the immovable property of the party against whom such judgment has been given or such order has been made’.
41 The rule against unnecessary attachment and sale of immovable property is one of some antiquity in our law.22 It reflects a consistent rule of public policy that people should not lose their immovable property, which is usually their home, except as a last resort.
22
See for example Zeller v Rosseau 1878 Kotze 35
42 The question which this section of the argument addresses is whether the summary procedure created by the Ordinance, and in particular the direct execution against immovable property, is permissible under our Constitution, in the light of its impact on the right to housing in section 26.
What sec 26 requires the state to do (and not do)
43 Section 26 (1) creates a general right of access to adequate housing. Sections 26(2) and (3) are manifestations of this right.23
23
Grootboom at para 21, 34
44 Sections 26(2) and (3) therefore do not seek to describe the full extent of the state’s duties under section 26. The
‘negative’ duty under section 26(1) has been articulated as follows:
‘Although the subsection does not expressly say so, there is, at the very least, a negative obligation placed upon the State and all other entities and persons to desist from preventing or impairing the right of access to adequate housing.’24
45 The state is under a particular duty, in terms of section 7(2), to ‘respect, protect, promote and fulfil’ the general right of access to adequate housing.25
The duty to ‘respect’ the right to housing
24
Grootboom at para 34
25
For an overall analysis of this typology of duties, see De Vos ‘Pious Wishes or Directly Enforceable Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 SAJHR 67 at 78-91. See also Liebenberg ‘Identifying violations of socio-economic rights: The role of the South African Human Rights Commission’ (1997) Law, Democracy &
Development 161 at 169-176.
46 In order to ‘respect’ a right, the state must refrain from action which would serve to deprive individuals of their rights.26 The United Nations Committee on Economic, Social and Cultural Rights has explained this duty as follows in relation to the right to food:
‘The obligation to respect existing access to adequate food requires State parties not to take any measures that result in preventing such access.’27
47 It is submitted that the enactment of the Ordinance, and the use of the summary procedure which it creates, constitute a breach of this duty. This is so because both the enactment and the use of the procedure result in a loss of existing access to housing.
48 The enactment of the Ordinance is an action taken by the state. It authorises a summary and extraordinary procedure which enables the Council to take the properties and sell them to third parties, with the almost inevitable result that owners and occupiers are evicted, and lose their homes.28
26
Craven The International Covenant on Economic, Social and Cultural Rights (Clarendon, Oxford, 1995) 110
27
General Comment 12: The right to adequate food (1999), para 15. Available
at http://www.unhchr.ch/tbs/doc.nsf. The relevance of the General
Comments of the Committee is described in Grootboom at para 27 to 31.
28
In its response to the application for admission of the amicus, the Council
denied virtually every allegation made on behalf of the amicus, including
some which are self-evidently true - for example, that the amount of rates is
small in relation to the value of a property. Even the Council, though,
admitted that ‘(a)n owner of immovable property who is in occupation when it
is sold in execution is likely to be ejected from it’. Affidavit of K A Kumar,
para 9.
49 This serves to deprive owners and occupiers of their existing access to adequate housing. It therefore constitutes a failure to ‘respect’ the right to housing.
50 The Council is itself an organ of state. Its use of the summary and extraordinary procedure, authorised by the Ordinance, has the result that owners and occupiers are deprived of their access to housing. These actions (authorised by the Ordinance) therefore also constitute a failure to ‘respect’ the right to housing.
The duty to ‘protect’ the right to housing
51 In order to ‘protect’ a right, the state must prevent others from interference with the rights of the individual.29 This may require positive action from the state. The state ‘must regulate private interactions to ensure that individuals are not arbitrarily deprived of the enjoyment of their rights by others’.30 Or as the United Nations Committee on Economic, Social and Cultural Rights has put it in relation to the right to food
‘The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food.’31
52 The Council (authorised by the Ordinance) enables third parties, who buy the houses concerned, to evict the owners and occupiers from their homes, thereby depriving them of their access to adequate housing. Far from preventing interference with the right to housing, the state actually enables it. It does so through two sets of inter-related actions:
29
Craven op cit 109
30
Craven op cit 112
31
General Comment 12 ‘The right to adequate food’ (1999), para 15
52.1 through the making of the Ordinance which authorises these summary and extraordinary procedures;
and
52.2 through the actions of the Council in using these summary and extraordinary procedures
53 The result is that the making of the Ordinance, and the actions taken by the Council under the Ordinance, fail to prevent other individuals from interfering with the rights of the people affected. They actually encourage and enable other individuals to interfere with the rights of the people affected. The state has accordingly failed to
‘protect’ the right to housing.
The practical workings and effect of the Ordinance in relation to the right to housing
54 It is necessary to consider not only the intrinsic content and purpose of the Ordinance, but also its practical operation and effect.32
55 It can of course not be denied that there are circumstances in which the state can legitimately undertake actions which result in people losing their homes.
32
Coetzee v Government of the Republic of South Africa; Matiso v
Commanding Officer, Port Elizabeth Prison 1995 (4) SA
631, 1995 (10) BCLR 1382 (CC) at para 65, 67 (Sachs
J).
56 There can also not be objection in principle to the wish of the Council, in the light of the nature of its functions and duties, to be able to use expedited and inexpensive measures in order to enable it to recover the rates which are due to it.
57 The fundamental constitutional objection is that even if the purpose of the Ordinance is held to be unobjectionable, the procedure which it creates has the result that people are quite unnecessarily deprived of their homes. This is an unconstitutional effect, and on that basis alone the relevant provisions of the Ordinance should be struck down.
58 As Dickson CJC has pointed out in the Supreme Court of Canada
‘Even if the purpose of legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may produce unconstitutional effects, and the legislation should then be struck down.’33
59 As is set out in the first affidavit of J P Samson,34 the debts owing by the 1146 debtors against whom orders were obtained in this case - including penalties, interest and collection charges - fell into the following categories:
Less than R5,000 79,32%
Between R5,000 and R9,999 11,69%
33
R v Morgentaler, Smoling and Scott (1988) 31 CRR (1st) 1 at 25
34
First affidavit of J P Samson, dated 5 April 2001
Between R10,000 and R24,999 6,11%
R25,000 or more 2,88%
60 It is self-evident that it would be possible to attach sufficient movable property to satisfy the debts in at least a substantial portion of those cases, almost 80% of the total, in which the total debt was less than R5 000.
61 A similar observation may be made in respect of those cases, more than 90% of the total, in which the total debt was less than R10 000.
62 It follows that a less invasive measure than selling the homes of debtors is available in at least a very large percentage of the cases.
63 The grossly invasive nature of this procedure is further demonstrated by the available information on the prices at which the properties are sold. The properties are frequently sold at meagre prices, well below their municipal valuations.35
35
As is well known, municipal valuations are themselves usually significantly
below market value
64 Remarkably, the Council professed ignorance of this well-known fact.36 However, the facts gleaned from the 32 sales which are reflected on the court file, demonstrate the following:37
36
Affidavit of K A Kumar in the application of the amicus curiae, paragraph 8 (i)
37
Second affidavit of J P Samson
64.1 In 10 cases (31,25%), the property was sold for less than 3% of the value determined by the municipal valuation
64.2 In 17 cases, (62.5%), the property was sold for less than 10% of the value determined by the municipal valuation
64.3 In 20 cases (62,5%), the property was sold for less than 20% of the value determined by the municipal valuation
64.4 In 25 cases (78,125 %), the property was sold for less than 50% of the value determined by the municipal valuation.
65 The consequence is that when their houses are sold in execution, debtors not only unnecessarily lose their homes;
they also lose a large part of the value of their homes, which will inevitably make it difficult for them to acquire other homes.
66 As appears from the table attached to the second affidavit of Samson, in 15 of the 32 cases, the loss of the property left the debtors still indebted to the Council. This is hardly surprising, given the prices at which the properties were sold. In each of the cases in which debt remained outstanding after the sale, the property had been sold at a price which was less than 10% of the official municipal valuation.
67 As we have pointed out above, the normal process of execution authorised by the Rules of Court require execution against movables before execution against immovable property. If section 105(9) had not been enacted, the Council would be obliged to follow this procedure, and the risk of people losing their homes unnecessarily would be correspondingly reduced.
68 Section 105(9) is therefore inconsistent with the Constitution because it authorises an extraordinary summary procedure which unnecessarily results in people losing their homes.
69 In this regard, the observations of the United Nations Committee on Economic, Social and Cultural Rights are relevant:
‘In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality....
Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a number of the rights recognized in both the International Covenants on Human Rights.’38
The Council’s answer on direct execution against immovable property
38
General Comment 7: The right to adequate housing: forced evictions (1997)
para 15, 16.
70 The Council’s answer on this issue is set out in Section F of the heads of argument filed on its behalf.39 The argument amounts to the following:
70.1 There is nothing inherently illogical or irrational in dispensing with execution against movables.
70.2 This course is frequently adopted by contract
70.3 The Rules provide for immovable property to be declared specially executable
39
From paragraph 129
70.4 The notices which are received, give the ratepayer enough time to sell movable property privately in order to raise funds to discharge the debt
70.5 Because rates are a charge upon immovable property, and rates sales are in the nature of an action in rem, it is ‘rational and logical’ that the local authority would look to the rateable property to realise the amount necessary to discharge the debt.
71 The bland assumption that the notices are ‘received’ by the ratepayers is of course not valid. As is shown by Tooze, where to the knowledge of the Council the notices have in fact not been received, the Council does not even consider that it is obliged to draw this fact to the attention of the Court, and does not do so.
72 It is submitted that the fundamental flaw in the approach of the Council is to assume that it is entitled to act in precisely the same manner as a private party, and that it carries no special duties under the Constitution.
73 This is not correct. Section 7(2) of the Constitution places a duty on the Council (as part of the state) to respect, protect, promote and fulfil the rights in the Bill of Rights. It is under a constitutional duty to take special care that it does not take any actions which result in people being unnecessarily deprived of their right to housing:
‘... all State action in relation in relation to housing falls to be assessed against the requirements of section 26 of the Constitution.’40
74 In fact, the Council does not simply claim that it has the same freedom of action as a private person. It claims an even greater right than a private person, namely the right to execute against immovable property as a matter of course, without having to apply to court to have the property declared specially executable - even though this results in deprivation of the right to housing.
75 We do not contend that this special procedure is irrational or illogical. We do contend that it leads inexorably and unnecessarily to a breach of fundamental rights, and that for this reason it is unconstitutional when taken by part of the state.
40
Grootboom at para 82
The position of occupiers who are not owners
76 The summary procedure created by section 105(9) also has a direct impact on the rights and interests of people who do not own their homes.
77 In the ordinary course of High Court proceedings, these people would receive notice as a matter of right. High Court Rule 46(3) requires that notice of the attachment of immovable property is to be given to the occupier, if the property is in the occupation of a person other than the owner.
78 An occupier receiving such notice is able to attempt to make arrangements which will avoid homelessness - either by making arrangements with the owner and the creditor for payment of the amount outstanding, or by attempting to find alternative accommodation in good time.
79 Under the procedure authorised by the Ordinance, it is a virtual certainty that some people will find that they have lost their homes without having received any prior warning at all.
80 Even if it is true that the Council reasonably requires extraordinary measures in order to be able to recover the debts owing to it, there is no justification for an extraordinary procedure which can (and surely does) have the result that people lose their homes without having received any prior warning and an opportunity to remedy the situation.41
41
We deal below with special procedures which could meet the legitimate
needs of the Council, without being inconsistent with the Constitution.
81 Such a procedure fails to meet the test of reasonableness and proportionality required by the UN Committee on Economic, Social and Cultural Rights, and by our Constitution.
PART 3
THE JUSTIFICATION OFFERED BY THE COUNCIL
82 The justification offered by the Council is simply this: that it is more efficient and cost-effective to use the extraordinary procedures authorised by the Ordinance.
83 That may well be so, but it is submitted that this is not sufficient justification.
84 An argument of this kind was addressed by Wilson J in the Supreme Court of Canada in Singh v Minister of Employment and Immigration
‘The issue in this case is not whether the procedures set out in the Immigration Act for the adjudication of refugee claims are reasonable; it is whether it is reasonable to deprive the appellants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.
Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr Bowie can constitute a justification for a limitation on the rights set out in the Charter of Rights.
Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under section 1.’'42
85 It is submitted that this is the true issue in this case: whether it is reasonable to deprive people of their property and their right to housing, quite unnecessarily, through an extraordinary procedure which ignores the principles of fundamental justice.
42
Singh v Minister of Employment and Immigration (1985) 14 CRR 13 at 57
(Dickson CJC and Lamer J concurring)
86 To the extent that the Council seeks to avoid having to give actual and effective notice of proceedings to its alleged debtors, it is submitted that this is an illegitimate goal, which can not be achieved within the framework of our Constitution. The same applies to the Council’s desire to be exempted from the ordinary requirement of execution first against movable property.
87 To the extent that the Council legitimately seeks cost-effective and reliable means of collecting the debts owing to it, this could readily be achieved through procedures which (for example):
87.1 permit the Council to bring one ‘joint’ application in respect of all its claims;
87.2 excuse the Council from having to serve the full set of papers on each of the defendants; and
87.3 give the Council preference in respect of any proceeds of sale of the property
88 The ‘problems’ which the Council might legitimately seek to overcome are primarily ‘problems’ of how to obtain a judgment, rather than how to ensure that the judgment is satisfied. In respect of the latter, the Council is in a very favourable position compared with other parties which seek to enforce the debts owing to them: it can be certain that the debtor has immovable property which will always be available as a last resort; and it has privileged access to the proceeds of that property.
89 Any expense incurred by the Council through unsuccessfully seeking to execute against movable assets will, in any event, be claimable as costs against the immovable property. The Council’s claims about the cost burden of executing against movables are accordingly misplaced.
90 In this context, there is simply no warrant for a procedure which (simply for the sake of convenience) permits the Council to breach its duty under the Constitution to respect and protect the right to housing.
PART 4
SECTION 171 OF THE CONSTITUTION
91 Section 171 of the Constitution provides as follows:
‘
All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.’
92 Section 105(9) of the Durban Ordinance amounts to legislation on the procedure of courts, which is contrary to the existing Uniform Rules of court, in that it is inconsistent with the following rules and procedures of our courts:
92.1 a party against whom relief is sought be given notice of the proceedings, either prior to the relief being granted or immediately thereafter with the right to return to court and have the relief re-visited (if the Council and the appellant are correct in their interpretation of the section);
92.2 a judgment sounding in money must be obtained before seeking to execute against property;
92.3 unless a court on good cause shown orders otherwise, there may not be execution against immovable property until an attempt has been made to recover the debt by executing against movable property;
92.4 before property may be sold to satisfy a debt, a writ must be issued, and the property must be attached.43
43
This is the only respect in which section 105(9) of the Durban Ordinance and
section 172(10) of the Local Authorities Ordinance differ. The latter section
does not do away with the need for a writ. See Germishuizen v Kingsburgh
Town Council, supra.
93 We anticipate that it might be contended that section 171 does not seek to provide an exclusive national legislative competence on rules and procedures of court, but that it is merely directive to the national law maker that it shall make such provision. We submit that this can not be correct. Where the Constitution requires that legislation be enacted, the transitional arrangements are explicitly dealt with in Schedule 6 (Transitional Provisions) - see for example Items 21 and 23.
94 It is submitted that section 171 governs legislative competence, and that any provincial legislation which conflicts with or goes beyond the existing national legislation (whether primary or secondary, in the form of the rules of court) is invalid.44
95 Section 171 of the Constitution accordingly provides the constitutional foundation for the existing primary legislation and rules of court which govern court procedure in so far as the constitutionality of provincial legislation is concerned. These rules become a benchmark against which the provincial legislation can be measured. To the extent that the provincial legislation seeks to alter national procedures and requirements, it is invalid.
44
That the Durban Ordinance is provincial and not national legislation is self
evident. The administration of the whole of the Ordinance was assigned to
the Province of KwaZulu-Natal in terms of Proclamation 107 of 1994
published in Government Gazette 15813 of 17 June 1994 with effect from
that date.
96 Item 16 of Schedule 6, which provides for the continuation of every court ‘in terms of the legislation applicable to it’, does not save the offending provisions of the Ordinance, because that transitional arrangement is expressly stated in Item 16(1)(b) to be subject to consistency with the Constitution.
97 It follows that although the Ordinance can provide for the liability to pay rates, the dates upon which rates become due, penalties that are payable on arrear rates and that rates are a first charge against the property out-ranking even mortgages, it cannot allow a deviation from the existing court procedures as governed by national legislation.
G M BUDLENDER
A M STEWART April 10, 2001
R J PURSHOTAM Attorney for amicus curiae Legal Resources Centre Durban
LIST OF AUTHORITIES CITED
SOUTH AFRICAN CASES
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, 1998 (12) BCLR (CC) 1517 Case v Minister of Safety and Security 1996 (3) SA 617, 1996 (5) BCLR 609 (CC)
S A National Defence Union v Minister of Defence 1999 (4) SA 469, 1999 (6) BCLR 615 (CC) Government of the Republic of South Africa v Grootboom 2001 (1) SA 46, 2000 (11) BCLR 1169 (CC) Konyn v Special Investigating Unit 1999 (1) SA 1001 (TkHC)
Bernstein v Bester NO 1996 (2) SA 751, 1996 (4) BCLR 449 (CC)
Tooze & another v City Council of Durban & others [1996] 3 All SA 229 (D).
In re Pennington Health Committee 1980 (4) SA 243 (N).
Germishuizen v Kingsburgh Town Council & others 1993 (1) SA 757 (D) S v Ntsane 1982 (3) SA 467 (T)
S v Nel 1991 (1) SA 730 (A) S v Memani 1994 (1) SA 515 (W).
De Lange v Smuts NO 1998 (3) SA 785, 1998 (7) BCLR 779 (CC)
Janse van Rensburg v Minister van Handel en Nywerhede 1999 (2) BCLR 204 (T) Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2) BCLR 151 (C) Nel v Le Roux NO 1996 (3) SA 562, 1996 (4) BCLR 592 (CC)
Zeller v Rosseau 1878 Kotze 35
Coetzee v Government of the Republic of South Africa; Matiso v Commanding Officer, Port Elizabeth Prison 1995 (4) SA 631, 1995 (10) BCLR 1382 (CC)
CASES FROM OTHER JURISDICTIONS
New Brunswick (Minister of Health and Community Services) v G(J) 66 CRR (2d) 267.
R v Morgentaler, Smoling and Scott (1988) 31 CRR (1st) 1
Singh v Minister of Employment and Immigration (1985) 14 CRR (1st) 13 TEXTS
Trengove ‘Evidence’ in Chaskalson (ed) Constitutional Law of South Africa ( Revision Service 2)
Kentridge and Spitz ‘Interpretation’ in Chaskalson (ed) Constitutional Law of South Africa (Revision Service 5, 1999)
De Vos ‘Pious Wishes or Directly Enforceable Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 SAJHR 67
Liebenberg ‘Identifying violations of socio-economic rights: The role of the South African Human Rights Commission’ (1997) Law, Democracy & Development 161
Craven The International Covenant on Economic, Social and Cultural Rights (Clarendon, Oxford, 1995) United Nations Committee on Economic, Social and Cultural Rights General Comment 12: The right to adequate food (1999), para 15. Available at http://www.unhchr.ch/tbs/doc.nsf
United Nations Committee on Economic, Social and Cultural Rights
General Comment 7: The right to adequate housing: forced evictions (1997) para 15, 16. Available at
http://www.unhchr.ch/tbs/doc.nsf
