SAHRC Welcomes changes to the Uniform Rules of High Court and Magistrates’ Court of South Africa regulating sales in execution in South Africa
The Commission welcomes the new amendments to the Uniform Rules of High Court and Magistrates Court of South Africa, regulating sales in execution in South Africa. The amendments to the Uniform Rules which have been published in the Gazette will come into effect on 22 December 2017. Prior to the recent amendments to the Uniform Rules, there was no requirement for the courts to set a reserve price (the minimum price below which the property cannot be sold) when immovable property, including people’s homes, were sold on auction. Previously, prior to amendment, the Uniform Rules specifically stated that a sale shall be without a reserve price. This resulted in people’s homes being sold at a fraction of their value. The Commission is aware of instances where defaulting debtor’s home were sold for less than 10% of the market value or judgment debt. The new amended Uniform Rules now enable the Courts to set a reserve price at which the bidding at a sale in execution of residential property must begin.
In 2016 the Commission was part of the process undertaken to amend the Uniform Rules by the Rules Board for Courts of Law. This process was aimed at achieving developing legislation to adequately provide for the implementation of the constitutional imperatives pertaining to rights of access to adequate housing, rights to property and the judicial oversight procedure as outlined by the Constitutional Court.
During that process the Commission emphasised the fact that the right to have access to adequate housing is a fundamental right that is enshrined in section 26 of the Constitution. Therefore, any sale in execution of a home must be done with a delicate balance of the creditor’s right to recover the debt in contrast to the debtor’s right to housing. Furthermore, the Commission noted that in a country such as South Africa riddled with poverty, a high rate of unemployment, poverty, homelessness, vast inequality and high levels of indebtedness, any execution against a person’s home has a dire impact on livelihoods and threatens the access and enjoyment of the rights contained / guaranteed by the Constitution. This is especially the case because a person’s home is not only sacrosanct but also ensures the dignity of the person.
The Commission also based its submission on comparative foreign jurisdictions which have attempted to infuse some safeguards which strike a balance between the interests of judgment debtors and the ability of creditors to sell the properties through the setting of a reserve price or other related mechanisms.The Commission thus recommended that the Uniform Rules be amended to provide for a Court, in exercising its judicial oversight function, to set a reserve price at which bidding must begin at sales in execution.
The Commission hopes that the amendments to the Uniform Rules will mark an end to the days of egregious practices by some unscrupulous judgment creditors who rode roughshod over the constitutional rights of judgment debtors. Further, the Commission hopes that the amendments in the Uniform Rules will be the much needed safety net, properly insulating judgment debtors from abuse while simultaneously protecting the commercial interests of judgment creditors during sales in execution of immovable residential property. In line with its constitutional mandate, the Commission will continue to monitor and ensure that the positive gains brought about by the amendments to the Uniform Rules are given effect to.
Gail Smith
Tel: 060 988 3792
E-mail: gsmith@sahrc.org.za
