Determination of constitutional validity of section 66 and 67 of Magistrates’ Courts Act 1944, which allows sale and execution of house without judicial oversight in certain cases; Nature of the right of access to adequate housing under art. 26 of the Constitution; Negative obligations within right to housing; Importance of judicial oversight.
Section 66 of Magistrates’ Courts Act has still not been amended: it does not provide for judicial intervention when the assets (i.e. movable property) of the debtor are not sufficient to cover the debt. However, the courts have followed the precedent set by the Jaftha judgment to make their decisions in similar cases. As a consequence, South African Courts now have to oversee sales of homes due to debt.
In Jaftha, the court developed the nature of the right of access to adequate housing, stating that a limitation on security of tenure will always have to be justified. As specified in the enforcement section, this Judgment is now a precedent followed by South African Courts in similar cases[1]. It must be noted that in such cases, the protection provided by article 26 Constitution only applies when the immovable property constitutes “adequate housing”, that is, when the debtor may become homeless if his property is executed.[2]
[1] See for example the case Nedbank Ltd v Mortinson 2005 (6) SA 462 (W) of the High Court of Gauteng, available at : http://www.saflii.org/za/cases/ZAGPHC/2005/85.html.
[2] See the summary of a case of 2010, where the Court held that execution against a second property was valid, because the debtor did not risk to lose his access to housing at all: http://www.ita.co.za/index.php?option=com_content&view=article&id=315:losing-immovable-property-as-a-result-of-a-small-debt&catid=25:newsarticles&Itemid=89
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