- Title
- A banking perspective on the constitutional right to housing with emphasis on mortgage agreements
- Creator
- Mangena, Dimakatso
- Subject
- Right to housing, Housing - Law and legislation, Mortgage loans - Law and legislation, Banking law
- Date
- 2017
- Type
- Masters (Thesis)
- Identifier
- http://hdl.handle.net/10210/236354
- Identifier
- uj:24189
- Description
- LL.M. (Banking Law), Abstract: The purpose of this dissertation is to analyse the impact of section 26 of the Constitution on the sale in execution of mortgaged immovable property by the bank as a judgement creditor. When a debtor defaults on payments due in terms of the mortgage agreement, the bank usually approaches the court for default judgement and an order declaring the property executable. Over the past years obtaining a writ of execution declaring immovable property executable has been disputed as being an infringement of a debtor’s right of access to adequate housing. This dissertation starts off by discussing the importance of the housing clause in the Constitution and the commercial value of mortgage finance. Case law dealing with the constitutionality of the sale in execution of mortgaged immovable property will be discussed and from these case discussions it becomes apparent that mortgage foreclosure law has changed as the bank needs to adhere to certain procedural requirements when proceeding with the enforcement of a mortgage debt. Furthermore an order declaring a debtor’s residential immovable property executable, infringes on the debtor’s constitutional right of access to adequate housing, therefore judicial oversight is required before such an order can be granted. Judicial oversight is necessary to ensure that all the relevant circumstances are considered before a decision is made for a debtor’s home to be sold in execution. It ensures that there is a proportionate relationship between the purpose of the sale of a debtor’s home and the effect that such a sale has on the debtor’s rights. Judicial oversight also ensures that the sale in execution process is not abused and will be used as a last resort. The banks, as mortgagees now have a duty to ensure that all other less drastic means of debt recovery are used before approaching a court of law for an order declaring the debtor’s home executable...
- Contributor
- Otto, J.M., Prof.
- Language
- English
- Rights
- University of Johannesburg
- Full Text
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