Protection for homes during mortgage enforcement : human-rights approaches in South African and English law
CITATION: Brits, R. 2015. Protection for homes during mortgage enforcement: Human-rights approaches in South African and English law. South African Law Journal, 132(3):566-595.
The original publication is available at https://journals.co.za/content/journal/ju_salj
This article investigates the enforcement of mortgages in South Africa and England. It specifically focuses on the influence of human-rights housing principles in so far as they may require courts to conduct a proportionality enquiry whenever a legal process leads to the loss of a home. It appears that art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — essentially the United Kingdom’s housing clause — is conceptually similar to s 26(1) of the South African Constitution. The underlying idea is that, when a home is violated, justification must be provided as regards the proportionate relationship between the purpose of the violation and the impact of the violation on the occupier. English law already accepts that this principle applies when local authorities seek to evict unlawful occupiers, but this approach has not yet been extended to mortgage repossessions. Conversely, South African law already acknowledges that the housing clause must be applied in mortgage cases. After investigating developments in both jurisdictions, the article concludes that a proportionality test is workable in mortgage cases. Furthermore, the traditional assumption that ‘creditors must win’, although still relatively strong, is in the process of being replaced by a more contextual approach.