SERI has submitted written comments on the Rules Board for Courts of Law's proposed amendment of Rule 46 of the Uniform Rules of Court and Rule 43 of the Magistrates’ Court Rules. These Court Rules regulate the sale in execution of a debtor’s home to satisfy a judgment debt. At present, the Rules provide for sales in execution “without reserve”. The Rules Board proposes that courts should, in the exercise of their judicial oversight function, be able to set the reserve price at which a sale in execution of primary residential property should commence.
SERI supports the proposed amendment provided that the setting of reserve prices is made mandatory and that reserve prices are linked to the value of the property in question. This would provide significant protection to poor debtors who are at risk of losing their accommodation and most valuable financial assets.
Today SERI releases two research reports which highlight the failure of the Johannesburg municipality to pursue just, humane and inclusive regeneration policies in its inner city.
The first of SERI’s two reports – Evictions and Alternative Accommodation in South Africa: An Analysis of the Jurisprudence and Implications for Local Government– responds to the fact that neither property owners nor municipalities have fully come to terms with the significant paradigm shift in the law relating to eviction and urban regeneration. Despite years of litigation and a host of progressive court judgments, which have substantially contributed to the constitutional right of access to adequate housing, municipalities like the City of Johannesburg are still failing to fulfil their duties in relation to evictions and the provision of alternative accommodation. Read the summary of the report here.
The second SERI report – Minding the Gap: An Analysis of the Supply of and Demand for Low-Income Rental Accommodation in Inner City Johannesburg – shows that, there are few formal housing options available to low-income and poor inner city residents. The private rental market does not supply anything that is affordable. Although there are a few institutions providing social housing at lower rentals, these institutions are extremely oversubscribed. According to the 2011 Census, almost half the households – consisting of approximately 122 000 people – living in the inner city earn less than R3 200 per month. These households can afford rent of R900 or less per month. The report concludes that there is almost no rental housing available to people in this income bracket. This means that large numbers of poor people have to live in squalid slum-like conditions for want of anything better. Read the summary of the report here.
However, the City’s urban regeneration policies actively promote the eviction of poor people from urban slums, assuming that alternative housing options exist. “Minding the Gap” shows that this is a false assumption, and that the City is simply not acting to provide viable alternatives to slum conditions for the urban poor. The City can do better. The report shows that, using a fraction of its budget surplus, the City could, in the next few years, eliminate the inner city housing crisis. The City just has to want to do it.
A Commonwealth Lawyers Association (CLA) mission has found that the arrest and detention of Zimbabwean attorney Beatrice Mtetwa breached the rule of law. The CLA’s final report on the trial observation mission undertaken to monitor the trial of the Zimbabwean human rights lawyer was released on 24 February 2014. The mission was conducted between March and November 2013 by a trial observer team comprising staff at the Socio-Economic Rights Institute of SA (SERI).
Ms Mtetwa was arrested in Harare on 17 March 2013 for “obstructing the course of justice” while assisting her client, a senior legal adviser to Morgan Tsvangirai, the former Prime Minister of Zimbabwe. On 26 November 2013, she was acquitted and discharged at the end of the state’s case, the presiding Magistrate finding that she had no case to answer. While finding that Ms Mtetwa’s trial was substantially fair, the CLA report expressed grave concern that Ms Mtetwa’s arrest, detention and trial were allowed to happen in the first place. It was, says the report, evident that nothing Ms Mtetwa was alleged to have done was capable of “obstructing justice”. Instead, her arrest and subsequent detention were clearly an attempt to harass and intimidate her; to punish her for asserting her client’s rights.
SERI has taken note of the Constitutional Court’s decision in Kubyana v Standard Bank, handed down on 20 February 2014. SERI respects the decision of the Court. However, we remain concerned that the decision may not do enough to protect distressed consumers who have fallen into arrears on their credit agreements and who are genuinely in need of debt counselling and other alternative dispute resolution mechanisms. These options are a debtor’s last hope of consensually resolving disputes which may result in money judgments being taken against them, perhaps leading to the loss of a home, or other property vital to their well-being.
SERI considers that it is credit providers – who are as a rule extremely well-resourced – that are best placed to ensure that every reasonable effort is made to inform a distressed consumer of his or her options, and the rights flowing from them. Distressed consumers should not be required to say why they did not know of rights that were never explained to them. More than anything else, those in distress - whether economic, social or personal - deserve to be treated with dignity, sympathy and respect in the credit agreement enforcement process.
SERI has launched an application on behalf of approximately 7 000 people (3 709 households) living at the Slovo Park informal settlement in Johannesburg. The settlement lacks access to formal services and housing, which the residents have been promised for almost 20 years.
In the application to the High Court the residents argue that the City of Johannesburg's failure to take a decision to apply to the Gauteng Provincial Government for funding to upgrade Slovo Park in terms of the Upgrading of Informal Settlements Programme (UISP) - contained in the 2009 National Housing Code - is in breach of the constitutional principle of legality, as well as sections 26(2), 151(1)(a) and 153(a) of the Constitution. The failure to take a decision is also administrative action, and falls to be reviewed in terms of section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The residents therefore seek to review the City's failure to take the decision to apply in terms of the UISP, and to compel it to make such an application.