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Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)

dc.contributor.authorBrits, R.en_ZA
dc.contributor.authorVan Der Walt, A. J.en_ZA
dc.date.accessioned2018-09-26T13:47:34Z
dc.date.available2018-09-26T13:47:34Z
dc.date.issued2014-04
dc.identifier.citationBrits, R. & Van Der Walt, A.J. 2014. Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2014(2):288-305.en_ZA
dc.identifier.issn1996-2207 (online)
dc.identifier.issn0257-7747 (print)
dc.identifier.urihttp://hdl.handle.net/10019.1/104508
dc.descriptionCITATION: Brits, R. & Van Der Walt, A.J. 2014. Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2014(2):288-305.en_ZA
dc.descriptionThe original publication is available at https://journals.co.za/content/journal/ju_tsaren_ZA
dc.description.abstractDirect execution of a judgment debt against immovable property - including those burdened with mortgage bonds - is permissible in the high court on the condition that "where the property sought to be attached is the primary residence of the judgment debtor, no writ [of execution] shall be issued unless the court, having considered all the relevant circumstances, orders execution against such property." The amended rule is a result of section 26 of the Constitution of the Republic of South Africa, 1996 and reflects the principle that was established earlier in Jaftha v Schoeman; Van Rooyen v Stoltz with regard to the magistrates' courts' execution process. The housing clause provides as follows: "(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." To give effect to debtors' rights under section 26(1), the constitutional court held in the Jaftha case that a clerk of the court may no longer grant judgments by default against primary residences. Rather, a magistrate must grant the order and may do so only after all the relevant circumstances have been considered. The case involved insignificant, unsecured debts that were enforced against vulnerable debtors' state-subsidised houses. It was therefore not immediately apparent that section 26 would apply also in the general context of mortgage bonds being enforced in the high courts.en_ZA
dc.language.isoen_ZAen_ZA
dc.publisherJuta Lawen_ZA
dc.subjectNational Credit Act -- South Africaen_ZA
dc.subjectconsumer credit agreements -- South Africaen_ZA
dc.subjectmortgage bonds -- South Africaen_ZA
dc.subjecthousing property -- South Africaen_ZA
dc.titleApplication of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)en_ZA
dc.typeArticleen_ZA
dc.description.versionPublishers versionen_ZA
dc.rights.holderJuta Lawen_ZA


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