Sale in execution must be ‘justifiable’ – ConCourt

Courts will in future be called on to determine whether the sale in execution of houses to settle debt is justifiable, the Constitutional Court ruled on Friday. It was considering the constitutionality of sections of the Magistrates’ Court Act dealing with the sale in execution of property to settle debt. According to a report on the Finance24 site, the case involved two women from a poverty-stricken community in Prince Albert in the Karoo. Their houses were sold at much less than market value to settle a small debt they owed. The court found that any measure which takes away a person’s pre-existing access to adequate housing limits the constitutional right to housing. The process of execution against property was found to be unconstitutional where it allowed a person’s home to be sold to settle a debt in unjustifiable circumstances. This should be remedied by ensuring courts have oversight of the execution process.

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Full report by Finance24:

Houses for debt to be justified
08/10/2004 11:37 – (SA)

Johannesburg – Courts shall in future determine whether the sale in execution of houses to settle debt is justifiable, the Constitutional Court ruled on Friday.

The Constitutional Court had considered the constitutionality of sections of the Magistrate’s Court Act dealing with the sale in execution of property to settle debt.

The case involved two women from a poverty-stricken community in Prince Albert in the Karoo.

Their houses were sold at much less than market value to settle a small debt they owed.

Maggie Jaftha’s home was sold at a public auction for R5 000 to meet a judgment for non-repayment of a loan of R250, plus interest and costs. The home had been built with a state subsidy of R15 000.

A similarly subsidised home owned by Christina van Rooyen was sold in execution for R1 000 for non-payment of a grocery debt of R198.

Judge Yvonne Mokgoro said if people lose their homes through a sale in execution, they are disqualified from acquiring future state subsidies.

The judge, in a unanimous decision by the court, found that any measure which takes away a person’s pre-existing access to adequate housing limits the constitutional right to housing.

The process of execution against property was found to be unconstitutional where it allowed a person’s home to be sold to settle a debt in unjustifiable circumstances.

The Constitutional Court ruled that this should be remedied by ensuring courts have oversight of the execution process.

The courts can then determine whether an execution order is justifiable in each case.

The Constitutional Court overruled a previous decision of the Cape High Court that the right to adequate housing does not include the right to own one’s own home.

The Cape High Court had also ruled there were sufficient legal provisions available to ensure the rights of people in similar situations to the appellants were not violated.

The Constitutional Court, however, said the process under the existing Magistrate’s Court Act often took place without oversight by the courts.

Edited by Fadia Salie