Legal Predictability and Compassion in Repossession Law


1.1.  Legal Predictability and Compassion

It has been argued[1] that the Constitutional Court has lacked sufficient rational coherence in its judgments and rather applied a sort of vague test whereby the court applies a general compassion to the circumstances before the court.

This is, however, arguably, exactly what the courts should do and especially the Constitutional Court: to look beyond the rules and look at justice in the case.

Applying that to this case: whatever the legal rules that have applied in the past to sales in execution in the past, if the practice is analysed with the test of compassion, it clearly fails the test. A compassionate approach would sell a person’s house for what it was worth. It would also reschedule debts where possible instead of granting execution.

The compassion test can also lead to new predictable rules that express the compassion, rules that are laid out elsewhere in this document and especially in the relief section.[2] Thus using Ubuntu and compassion in jurisprudence does not necessarily lead to a situation of non predictability.

1.2.  Woolman and Predictability

Woolman’s argues that the court does not apply the constitution directly[3]  but rather relies on three “vague” values: dignity, freedom and equality. This, argues Woolman, allows the court to decide as it pleases rather than acting consistently with its own precedents, instead it “over-relies” on  Section 39 (2).

Section 39 reads as follows

“39. Interpretation of Bill of Rights

(1)  When interpreting the Bill of Rights, a court, tribunal or forum-

(a) must  promote  the  values  that  underlie an open  and  democratic  society  based on human  dignity, equality and freedom;

(b) must consider international law; and may consider foreign law.

(2) When  interpreting  any  legislation, and when  developing  the  common law or  customary law,  every  court,  tribunal or  forum must  promote  the  spirit,  purport  and  objects of the Bill  of  Rights.

(3) The  Bill  of  Rights  does  not  deny  the  existence of any other  rights or freedoms  that are  recognised  or  conferred  by  common  law,  customary law or  legislation,  to  the  extent  that they  are  consistent  with  the  Bill.”[4]

39(2) requires (at the very least) for the court to develop common law and to interpret legislation in the light of the general objects of the Bill of Rights where there is no specific right to rely on.[5] The courts have no discretion here. They have an obligation to develop the common law when it is deficient in promoting the Section 39 objectives.[6]  The first stage is to consider whether the common law needs changing and the second to consider how it needs changing. [7] Both of these need to be considered  in terms of 39(2).

In Thebus,[8] two possibilities are mentioned – that the common law rule contradicts a specific constitutional provision, or it does not, but it nevertheless is inconsistent with the values of the constitution.

Woolman[9] holds rather that the Section 8 and Section 39(2) analysis should be different in kind. In other words that Section 8 should be used where there is a contention that a specific right has been violated and 39(2) should be used where there is no such contention.[10]

Woolman continues  that in the case where an order of invalidity is requires then Section 172 is enough whereby when the common law needs develops Section 8(3) is needed.

Sections 172 and 173 reads as follows:

  1. Powers of courts in constitutional matters.-( 1) When  deciding a  constitutional matter  within its power, a court-

(a) must  declare  that  any law or  conduct  that  is  inconsistent with the Constitution  is invalid  to  the  extent of its inconsistency; and

(b) may make  any  order that  is just and equitable, including-

(i) an order  limiting  the  retrospective  effect  of  the  declaration of invalidity;

(ii) an order  suspending  the  declaration of invalidity  for any period and on any conditions, to allow the competent  authority  to  correct  the  defect.

(2) (a) The  Supreme  Court of Appeal, a High Court or a  court of similar  status may make an order  concerning the constitutional  validity of an Act  of Parliament,  a  provincial Act or  any  conduct of the  President, but an order of constitutional  invalidity has no force  unless  it  is confirmed L : the Constitutional  Court.

(b) A court  which  makes an order of constitutional  invalidity may grant a  temporary interdict or other  temporary  relief  to a party,  or may adjourn  the  proceedings,  pending a  decision of the  Constitutional  Court on the  validity of that Act or conduct

. (c) National  legislation must provide  for  the  referral of an  order of constitutional in- validity  to  the  Constitutional  Court.

(d) Any person or organ of state with a  sufficient  interest may appeal,  or  apply,  directly  to  the  Constitutional  Court  to  confirm or vary an  order of constitutional  invalidity  by a court in terms of this subsection. and

  1. Inherent power.-The Constitutional Court, Supreme Court of Appeal and High Courts  have  the  inherent  power  to  protect and regulate  their  own  process, and to  develop  the common  law,  taking  into  account  the  interests  of  justice.

Both Section172 and 8 refer to situations of direct interpretations of the bill of rights, not indirect. Courts, nevertheless, cite a wide variety of provisions in the constitution to support their judgments.[11] They do this wrongly in Woolman’s view. In Petersen,[12] there is a direct violation of rights (equality and dignity) and the judgments should thus be in terms of Section 8. Instead, it is in terms of Section 39(2).


1.3.  Section 39(2) and Statutes

Section 39(2) also applies to statutes and thus by extension to the Uniform Rules of Court.

In First National Bank:

“There is an obligation on the court when interpreting any legislation…to promote [the section 39(2)] objectives”[13].

In National Coalition for Gay and Lesbian Equality[14] while also emphasises the legislation is required  to be interpreted by Section 39(2) notes that being an interpretation provision, it only applies as far as the words are “reasonably capable of meaning.”  Should reading in or severing be necessary then Section 172 would rather apply.

Reading down however can be done in terms of Section 39(2)[15].  Thus while only a subset of all legislation directly engages a particular constitutional right, section 39(2) is applicable to all legislation.

Where there is settled precedent then the courts have ruled 39(2) cannot be used to overturn it, only direct applications of rights[16]. In Bookworks,[17] it was found that where a higher court has already decided on the constitutionality of an act or aspect of the common law, then a lower court cannot breach stare decisis on that point.

In summary, Woolman’s analysis gives an attractive means to classify approaches for different circumstances, but currently the Constitutional Court are not applying such an approach. Rather the Court uses its values to overturn principles that appear to the Court to be unjust. This is also an attractive approach as it allows the court to do what is just without being irrationally bound by precedents that may lead to unjust conclusions. In any case, that is their current approach and thus our current law. There is therefore no reason why our sale in execution may also be overturned in terms of Section 39(2), in terms of not being in keeping with the spirit of the Constitution and clashing with its values.

Applying this analysis, in the situation of sales in execution for less than value, the spirit of the constitution is that this kind of behaviour by banks is no longer acceptable. It is not consistent with the values of the Bill of Rights regardless of other factors and so can be found unconstitutional in terms of Section 39(2).

In Port Elizabeth it was found that in deciding what was just and equitable, that the court therefore had to “break away from a purely legalistic approach and have regard to extraneous factors such as morality, fairness, social values”[18] and “not purely of the technical kind that flow ordinarily from the provisions of land law.” [19]

“Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of Ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy”’

The two main cases where Ubuntu was introduced are P.E Municipality which is on point with this document’s enquiry as it involves the question of losing a home. The other case is Makwanyane which has a particular relevance as the penalty for defaulting on a bond has the nature of a punishment. The debtor does not pay the damage he has done to the bank as would be analogous to a normal damages in a civil suit. Instead he is penalised potentially with the loss of everything he has.

If we can bring in factors like morality, fairness, social values and grace and compassion into this matter as the Constitutional Court did in Port Elizabeth, then there would be no questions that banks would not be permitted to sell people’s houses for a fraction of their value.

The concept of Ubuntu is closely related to the constitutions transformative character,[20] “spirit of transition and transformation characterises the constitutional enterprise as a whole”.[21]

Ubuntu carries in it the notions of “humaneness, social justice and fairness”[22]  In the same case Mokgoro said “While [ubuntu] envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.”[23]

If Ubuntu is about showing “respect, dignity, value and acceptance”,[24] how does a bank showing ”respect, dignity, value and acceptance” when it unnecessarily sells a person’s house for half of what it is worth and wipes out that person’s lifetime savings?

Ubuntu is about restorative justice more than retribution or punishment. Our sale in execution practice, unusually for a civil remedy, rather seems to be about punishment, in effect, at least. A restorative approach, in keeping with Ubuntu would be to try and restored the relationship of the debtor with the bank in any way possible. Ways might include extending the term of the loan, providing payment holidays for a period, compulsory meetings where the bank must try and reach agreement, converting the property to a rental perhaps with a minimum term in which the buyer must rent to the previous mortgagee. Certainly not selling the house for very little.

Ubuntu was been criticised for having many meanings but it has been argued[25] rather it is an overarching principle embracing the similar overarching principles of Jesus and of Confucius to respectively to do others as they would have them do to you, and not to do to others what you would not wish them to do to you. Ubuntu is that kind of widely applicable principle. Various other cases have extended the principle of Ubuntu successfully.[26]

If even in Port Elizabeth, where those losing their homes were illegal squatters and yet the court obliged the evictors to attempt to take “all reasonable steps.. to get an agreed, mediated solution” then how much more should this apply in situations where those losing their homes are lawful tenants who have, usually through no fault of their own, simply missed a few bond payments as a result of losing their jobs.[27]

Transformation is not necessarily at odds with the concept of certainty embraced by stare decisis. Transformation can change the law to a different level, based on different principles, as I propose herein, after which it again becomes predictable.

It may be no coincidence that the abolishment of the Cape Rule[28] that required the court to determine if the price was fair and reasonable was abolished as the Uniform Rules came into effect at the height of the apartheid era. What could be considered the height of the absence of Ubuntu. In the previous 10- 15 years or so, in other words the time in which the changes in the rules were considered and proposed,  the following Acts had been passed:

Bantu Education Act, 1953

Extension of University Education Act, 1959

Coloured Persons Education Act, 1963

Native Building Workers Act, 1951

Native Labour (Settlement of Disputes) Act, 1953

The Immorality Amendment Act, 1950

The Group Areas Act, 1950

The Group Areas Development Act, 1955

The Coloured Persons Communal Reserves Act, 1961

Rural Coloured Areas Act, 1963  Prevention of Illegal Squatting Act, 1951

Native Laws Amendment Act, 1952

Natives (Abolition of Passes and Co-ordination of Documents) Act, 1952

Natives Resettlement Act, 1954

Natives (Prohibition of Interdicts) Act, 1956

Urban Bantu Councils Act, 1961

The Separate Representation of Voters Act, 1951

The Promotion of Bantu Self-government Act, 1959

Suppression of Communism Act, 1950

Public Safety Act, 1953

Riotous Assemblies Act, 1956

Unlawful Organizations Act, 1960


In this context, there is no reason not to see the current law of Sale in Execution from what it is: another part of the apartheid era apparatus that needs to be abolished like all the other laws that represented that perspective and way of thinking.

That is not, of course to say that the whole of the Uniform Rules of Court represent “apartheid era apparatus” but it would be strange if there was no evidence in the rules of the era in which they were passed. It is certainly a compelling  explanation as to how our Rule 46  became so out of synch with our history, with Ubuntu and with the practice of the rest of the world.

Looking at the values intrinisic in sale in execution along with much else in creditor/ debtor law, the underlying moral presumption  is that the debtor is a bad person who is intentionally not paying his debt, rather than someone who has fallen on hard times due to no fault of their own.[29] This unspoken presumption of guilt rather than innocence, which underlies the whole implicit justification for the taking away of large parts of a person’s property, is arguably also, once articulated, inconsistent also with the historic spirit of the common law. There is a presumption of guilt.

Certainly, it is inconsistent with values based on dignity and freedom and thus violates Section 36 (2).

1.4.  Overall Conclusion

The law of sale in execution based on Uniform Rules 46 10 and 12 violating the rights to Housing, Property and Administrative Action and in failing  the tests of Section 36, our law of sale in execution also violates the spirit of the constitution.


[1] Woolman “The Amazing Vanishing Bill of Rights” (2007) in  SALJ 762–794.

[2] Cbt expand looking at Woolman et al.

[3] Woolman “The Amazing Vanishing Bill of Rights” (2007) in  SALJ 763

[4] Constitution of the Republic of South Africa Section 36

[5] Constitutional Law of South Africa 31 78 ,(i) in the text

[6] Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC)
1971 (1) SA 219 (C)

[7] Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC)
1971 (1) SA 219 (C) para 40.

[8]  Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC)


[9] Woolman Stuart “Constitutional Law of South Africa “ Chapter 31- 80


[10] Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council v Venter NO (334/98) [2000] ZASCA 50; 2001 (1) SA 360 (SCA) ; [2001] 1 All SA 51 (A) ; see further  Woolman Stuart “Constitutional Law of South Africa “ Chapter 31- 80


[11] Woolman Stuart “Constitutional Law of South Africa “ Chapter 31- 85

[12] Petersen v Maintenance Officer and Others (6541/03) [2003] ZAWCHC 61; [2004] 1 All SA 117 (C) – Woolman gives further examples of the same thing from the SCA and other courts.


[13] First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service and Another 2001 (7) BCLR 702 (C)

[14] National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others1998 (12) BCLR 1517 (CC) para 24

[15] Woolman Stuart “Constitutional Law of South Africa “ Chapter 31- 88

[16] Woolman Stuart “Constitutional Law of South Africa “ Chapter 31- 95 -99

[17] Bookworks (Pty) Ltd v GreaterJohannesburg Transitional Metropolitan Council 1999 (4) SA 799(W) at 810

[18] Port Elizabeth Municipality v Various Occupiers [2004] JOL 13007 (CC)
paragraph 33

[19] Port Elizabeth Municipality v Various Occupiers [2004] JOL 13007 (CC)
paragraph 35

[20] Himonga, Taylor and Pope “Reflections On Judicial Views Of Ubuntu” [2013] in Potchefstroom Electronic Journal  67
[21] Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC).

[22] S v Makwanyane [1995] ZACC 31995 3 SA 391 (CC) para 236.

[23] S v Makwanyane [1995] ZACC 31995 3 SA 391 (CC) para 307.

[24] Himonga, Taylor and Pope “Reflections On Judicial Views Of Ubuntu” [2013] in Potchefstroom Electronic Journal  67

[25] Himonga, Taylor and Pope “Reflections On Judicial Views Of Ubuntu” [2013] in Potchefstroom Electronic Journal  67

[26] S v Mandela 2001 1 SACR 156 (C);Crossley v National Commissioner of the South African Police Services 2004 3 All SA 436 (T);Du Plooy v Minister of Correctional Services 2004 3 All SA 613 (T);Bophuthatswana Broadcasting Corporation v Ramosa 1997 HOL 283 (B) 4-5.

[27] Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 61

[28] “Cape Rule 39(11), which required the sheriff to declare the highest bidder the purchaser if satisfied that the price offered was fair and reasonable, having regard to the circumstances of time and place and to the state of the property market.”[28],[28]

[29] Of course, both situations occur and combinations of the two are also possible.