Undesirable phraseology in certain pre-eviction court rules pertinent to residential properties

Section 26 of the Constitution and judicial pronouncements related thereto have progressively resulted in the amendment of certain court rules. Judgments which inspired changes in related court rules include those in Gundwana, Jaftha, Grootboom and Saunderson. Most of these cases sought to infuse the element of judicial oversight into specific formal litigation procedures with the potential to result in the loss of homes. Among the rules subsequently altered, mention can be made of Magistrates' Courts rules 5, 12, 43, and 43A, and High Court rules 31, 46, and 46A. These rules regulate mechanisms in civil procedure with the potential, in other instances, to culminate in eviction processes against homeowners, such as summonses, default judgments and, significantly, executions. The language used in some of the court rules amended in the quest for instituting constitutional safeguards against evictions has seemingly been a cause for concern, necessitating interpretation by various courts. High Court rules 46 and 46A, extending to their Magistrates' Courts counterparts, are cases in point. The confusing wording of these rules has attracted the attention of recent case law for purposes of effective implementation. The perceived shortcomings of these court rules, High Court rules 46 and 46A in particular, are critically explored in this article, with recommendations made with a view towards enhancing civil procedural instruments in eviction-related matters.