Six-month 'payment holiday' mooted
The justice ministry has made a number of proposals aimed at stopping people losing their homes “through shady deals and unfair court processes”.
07 December 2018 | Justice
The home loan contract would then be extended by six months, but would provide some leeway for the owner to come up with a plan.
Banks should also be compelled to educate their customers on the consequences of non-payment. These are some of the suggestions made by the justice ministry to protect people against losing their houses “through shady deals and unfair court processes”.
“The result of this is that people, often those who are most vulnerable in society, lose their homes without understanding the process that was followed or without any opportunity to request further particulars,” the ministry says in a document that formed part of a consultative meeting on amendments to the High Court Act of 1990 and the Magistrate's Court Act of 1944. It says the right to adequate housing is a recognised human right that falls within the sphere of economic, social and cultural rights.
The document states that in 2014, the High Court rules were amended and provide for judicial oversight in the sale in execution of people's homes. The current magistrate's court rules do not have a similar provision and therefore allow warrants of execution to be issued by the clerk of the court. The magistrate's court rules should thus be amended to bring them in line with those of the High Court.
“The High Court rules have proven to be effective, but a floodgate situation has been caused in the magistrate's courts, where the rule has not been amended yet. The High Court was in the meantime declared ultra vires by the Supreme Court,” it reads.
The proposed solutions include that the High Court Act be amended to create “a substantive provision for the creation of a substantive rule in the format of Rule 108(1) (a) and (b) of the Rules of the High Court”.
The Magistrate's Court Act of 1932, as amended, should also be amended to create a substantive rule similar to the High Court one.
Another proposal is that the Law Society of Namibia, and perhaps the Deeds Office, should be asked to introduce additional measures when property transfers take place between family members, “or where the transfer takes place within a short span of time with a significant increase in price”.
“These institutions should be involved especially where transfers take place simultaneously (on the same day). It is further suggested that these sales be subjected to additional tax burdens in order to avoid exploitation.”
In his opening remarks at the consultative meeting, justice minister Sacky Shanghala said where an immovable property is the primary home of the judgment debtor, a court may not declare such an immovable property excecutionable unless the execution debtor has been informed of an intended application to have the property declared excecutionable and the debtor has been informed to provide reasons why this should not happen.
“During this discussion we must consider what would be the most effective and deterrent action against illegal sales in execution. We will also consider the effect of the other suggested amendments and how the ministry can contribute to educating leaders,” Shanghala added.