Until now, the Registrar of the High Court has been empowered to order such a move.

Yesterday's ruling, which saw George B&B owner Elsie Gundwana hold on to her property, also meant homeowners could put their case to a judge.

"It is declared that is unconstitutional for 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," the judgment read.

Gundwana argued that the process by which Nedbank had sold the property in execution was unconstitutional because the Registrar of the High Court should not be empowered to take away a home's ownership.

That function, she argued, should be reserved for a judge, who must carefully weigh the circumstances of a case before deciding whether a sale in execution can be justified.

The ruling came as a relief for Gundwana and her lawyer, Francois van Zyl, who has been trying to help Gudwana keep her house which she has run as a B&B for the past four years.

The 57-year-old businesswoman had fallen in arrears with her bond payments in 2003 and the bank got a default judgment from the Registrar of the Western Cape High Court which also ordered her home be executable for R33 543.06.

After receiving the summons, Gundwana went to the bank and paid some of the money and continued paying the monthly instalments until she found out the house had been sold in 2007 and there was an eviction order against her.

After years of trying to resolve the matter, with the High Court refusing her leave to appeal, she sought relief with the Constitutional Court.

"I am so relieved and ecstatic I do not even know how to explain the joy and excitement I am feeling right now," Gundwana said.

The ruling also granted her an appeal against the eviction order.

Van Zyl said they were elated by the ruling and that it had taken them four years to get to where they are now.

He said it was not over yet because they still had to go to the High Court for the rescission application which will look at the default judgment granted against Gundwana.

She will then have to go back to the George Magistrate's Court for final determination on the eviction order.

Sarah Sephton from the Legal Resources Centre, who was involved in the matter, said what the judgment meant was that people needed to appear before the court and show the court why their houses should not be sold in execution.

"The ruling simply means it is not going to be easy for banks to sell people's houses like it was in the past as the process needs to be overseen by a judge," she explained.

However, the ruling is not retroactive and will apply only for future cases.

Gundwana said that her business supported the family and was also used to pay the bond.

"I could not afford to lose my home which is also my source of income. But I am happy and confident that the matter will be solved at the lower courts as well," she said.

The court ordered that the bank and the Justice Ministry, listed as a respondent in the matter, had to pay Gundwana's legal bill.

Cape Argus