Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by browse.metadata.advisor "Lubbe, G. F."

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    Mortgage foreclosure under the constitution : property, housing and the National Credit Act
    (Stellenbosch : Stellenbosch University, 2012-12) Brits, Reghard; Van der Walt, A. J.; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The forced transfer of immovable property to enforce judgment debts by way of sale in execution has constitutional implications. Firstly, if the property is residential, section 26 of the Constitution (the housing clause) raises the question whether the current legal framework takes sufficient account of the imperative to respect people‟s access to adequate housing. Read with section 36 (the limitation clause), the requirement is that someone‟s home may only be violated if the result is proportionate based on all the relevant circumstances. Secondly, since the home qualifies as “property” for purposes of the section 25 (the property clause), the law that regulates this forced sale may not permit the arbitrary deprivation of property. In other words, it is necessary to also investigate whether the sale in execution of debtors‟ property satisfies the section 25(1) non-arbitrariness test. Therefore, the research problem that this dissertation addresses revolves around the implications of sections 25 and 26 of the Constitution for the “normal” sale-in-execution process. More specifically, the scope of the investigation is limited to forced transfers of residential property as a result of mortgage foreclosure. What makes this perspective interesting is that, in addition to the debtor‟s constitutional rights, the creditor also enjoys constitutional protection by virtue of the limited real right (the mortgage) that is registered over the debtor‟s home. This real security right is also “property” that is worthy of recognition under section 25. To the extent that the National Credit Act places obstacles in the way of creditors‟ right to enforce their debts, this interference may also amount to a deprivation of property, which must satisfy the requirements of the property clause. This dissertation shows that the traditional common law framework of mortgage foreclosure does not give full effect to debtors‟ sections 25 and 26 rights. Nevertheless, based on the subsidiarity principles, I argue that a development of the common law or the creation of unique constitutional defences is not called for. The reason for this submission is that the debt relief mechanisms of the National Credit Act already provide constitutionally appropriate relief for debtors who face the loss of their properties. The available mechanisms – including debt review, debt rearrangement and the right to reinstate credit agreements – are aimed at resolving the root of mortgage foreclosure, namely over-indebtedness. This approach will ensure that mortgage foreclosures have a constitutionally valid and proportionate effect on the rights of both parties to the mortgage relationship.
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    The significance of postmodern theories of interpretation for contractual interpretation : a critical analysis
    (Stellenbosch : University of Stellenbosch, 2006-03) Du Toit, Gerhard; Van der Walt, A. J.; Lubbe, G. F.; University of Stellenbosch. Faculty of Law. Dept. of Mercantile Law.
    The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory. In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary. In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules. The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.