Constitution doesn’t protect homes

A ‘WEAKNESS’ in the Bill of Rights means that Namibians have no constitutional right to housing and therefore the Magistrate’s Court Act should be amended to ensure that people don’t lose their homes unfairly when they can’t pay their bills, a National Council hearing was told on Tuesday.

‘It can safely be asserted that one of the weaknesses of the Namibian Bill of Rights is the exclusion of socio-economic rights,’ Ministry of Justice Principal Legal Officer Ferdie Kenneth Mundia told the National Council (NC) Standing Committee on Constitutional and Legal Affairs during the first day of public hearings on the current execution practice.’It is submitted therefore that the exclusion of socio-economic rights from the Namibian Bill of Rights makes the redress of poverty not a matter of fundamental constitutional concern, on account that their enforcement by the courts is not guaranteed,’ he said.The public hearings were called after the Aggrieved Home-Owners Association lodged a complaint with the committee earlier this year. The NC subsequently selected a committee on home loans to investigate the situation, review section 66 and ascertain whether it violates the letter and the spirit of the Constitution.The public outcry intensified after media reports highlighted the controversial issue. For instance, The Namibian reported in February that a woman at Gobabis lost her house worth N$280 000 after it was sold to pay a bank debt that started with a wrangle over N$1 000. Meanwhile, the Aggrieved Home-Owners Association and 25 of its members filed a notice of motion in the High Court in Windhoek, calling for parts of the 1944 Magistrate’s Court Act to be declared unconstitutional.All the witnesses called by the NC on Tuesday agreed that, although section 66 might be unfair under certain circumstances, it is by no means unconstitutional.Unlike the Namibian Constitution, the South African Constitution provides for any person’s right to have access to adequate housing. Against this background, the Constitutional Court in South Africa ruled that by failing to provide for judicial sanction on the sale in execution of immovable property, section 66(1)(a) was unconstitutional and invalid.’Unfortunately we have no corresponding provision,’ said Etuna Josua, the legal advisor for the City of Windhoek. The Namibian Constitution protects the right to property, but not residence, he said.’We can’t really say that section 66(1)(a) is unconstitutional in Namibia,’ Josua said.However, Mundia said there is a ‘high possibility’ that section 66 is abused.Josua and Regional and Local Government and Housing Permanent Secretary Erastus Negonga voiced similar concerns.’Houses should not be sold for a song,’ Josua said, while Negonga felt that it is ‘unreasonable if a valuable asset of a client is sold for peanuts’.Josua admitted that a case for unfairness could be made out when a resident’s house has to be sold to cover ‘very small debts’.However, ‘when it comes to constitutional issues and legal perspectives, unfairness in itself doesn’t equate to unconstitutionality’, he said.All the witnesses agreed that section 66(1)(a) should be amended.City of Windhoek Chief Executive Officer Niilo Taapopi said it is ‘high time’ to review the section, as it is giving the Municipality ‘a lot of problems’.Taapopi said the controversial act is currently serving a purpose, but that it should be reviewed because it is ‘compromising lawmakers’.Section 66 might be old, but it is not cold, Taapopi responded to the committee’s complaint that it dates back to 1944.’There is a reason why this old act is left. Lawmakers felt that it is still applicable to this society until people can come up with a factual reason why we can’t maintain this act,’ he said.The name of the game should rather be to review the act, Taapopi told the committee.Negonga said the Ministry has no problem with the section being amended.’We are equally concerned when we see that people are just chucked out. We are aware of turbulences; that there is a time when you can pay and a time when you can’t. The latter is usually not permanent and we should find a way to harmonise the two,’ he said.Mundia recommended that Namibia should follow the South African example and amend section 66(1)(a) so that the court must consider factors like the financial position of the parties, the amount of the debt, whether the debtor has a job or an income, the circumstances in which the debt was incurred and attempts made by the debtor to pay his debt before ordering the sale of his house.However, if the section is amended, it should strike a balance between the debtor and the creditor so that the ‘economic principles enshrined in the Constitution’ are still honoured, Josua said.’It is necessary that there must be a way to enforce civil rights and obligations,’ he said.Negonga agreed. ‘When local authorities have liabilities, they must use all possible ways to recover the debts,’ he said.If not, municipalities’ ‘books will look very, very bad and they will be berated for being unaccountable,’ the PS said.Both Negonga and Josua defended the creditor control policy of local authorities and said there in nothing unfair about them seeking a court order to attach residents’ houses once all other avenues have failed to collect outstanding debts. The legal process provides these residents ample opportunity to defend themselves, he said.Therefore section 66(1)(a) is also not unconstitutional in terms of the right to a fair trial, Josua said.The section in its current form reads: ‘Whenever a court gives judgement for the payment of money or makes an order for the payment of money in instalments, such judgement, in case failure to pay such money forthwith, or such order in case of failure to pay any instalment at the time and in the manner ordered by the court, shall be enforceable by execution against the moveable property and, if there is not found sufficient moveable property to satisfy the judgement or order, or the court, on good cause shown, so orders, then against the immovable property of the party against whom such judgement has been given or such order has been made.’Mundia suggested that the phrase, ‘a court, after consideration of all relevant circumstances, may order execution’, should appear before the words ‘against the immovable property of the party’ in the section.’The effect of this amendment would be to make judicial oversight a prerequisite for execution of immovable property,’ he said.jo-mare@namibian.com.na