Compassion
One of the most striking aspects of the current law of sale in execution and the consequent practice is the lack of compassion. An objective of the new law is to incorporate a more compassionate, patient and understanding approach to debtors that is more consistent with constitutional values. There must be a certain amount of compassion for vulnerable people incorporated into the law. In practice the latter means longer time period to move out and connecting the problem situation with social services in each relevant case. It has been held in Blue Moonlight[1] which concerns the closely related area of evictions that patience may sometimes be required of commercial interests (though not indefinitely). I would suggest that the greater degree of vulnerability the greater the degree of patience that would be required.
Compassion is not always needed because sometimes a rational practical option can be chosen that is acceptable to all parties It is hoped that at least one of the practical options discussed herein would apply in the vast majority of cases, across all sections of the socio-economic spectrum. In addition to the list of practical solutions, though, compassion also needs to be considered, i.e. where none of the above solutions will work, there must still be an accommodation for the needs of people in particularly serious need. Questions that need to be asked include: Is the debtor going to be rendered homeless; are they disabled; are young children going to be negatively affected? In Port Elizabeth,[2] it was noted as per the PIE Act[3] that this list of factors should include inter alia the period in which the debtor has stayed in his/her house. European human rights cases with respect to eviction have also focused on whether the debtor is going to become homeless.[4]
[1] City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) 2012 (2) BCLR 150 (CC) para 40 and 100.
[2] Port Elizabeth Municipality v Various Occupiers [2004] JOL 13007 (CC) paragraph 25.
[3] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
[4] See section on foreign law.