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A re-assessment of exempted assets in insolvency law : the case for a homestead exemption
Mini Dissertation (LLM (Insolvency Law))--University of Pretoria, 2024.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2025
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| _version_ | 1867613646890205184 |
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| access_status_str | Open Access |
| author2 | Van Wyk, Jani |
| author_browse | Van Wyk, Jani |
| author_facet | Van Wyk, Jani |
| collection | Thesis |
| dc_rights_str_mv | © 2023 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini Dissertation (LLM (Insolvency Law))--University of Pretoria, 2024. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/100346 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:39:27.772Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2025 |
| publishDateRange | 2025 |
| publishDateSort | 2025 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/100346 A re-assessment of exempted assets in insolvency law : the case for a homestead exemption Van Wyk, Jani u18066667@tuks.co.za Singh, Enrique Dale UCTD Sustainable Development Goals (SDGs) Insolvency Homestead Exemption Jaftha Mini Dissertation (LLM (Insolvency Law))--University of Pretoria, 2024. The Insolvency Act 34 of 1936 does not exempt the debtor’s home from execution in a manner similar to other assets such as income, bedding and household furniture. This means that the exempt assets under the Insolvency Act do not include a debtor’s home and the latter can be sold during sequestration proceedings. This dissertation argues that this position infringes various rights in the Constitution. In Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC), the Constitutional Court dealt with the correlating position under the individual execution process. Section 26 of the Constitution, which guarantees the right to access to adequate housing, formed the basis of a successful challenge to the Constitutionality of the execution process. This case provided that courts must consider “all the relevant circumstances” in every situation when a creditor seeks to execute upon the residential property of an individual. Unfortunately, in sequestration proceedings where debtors find themselves in a predicament where they are incapable to pay their debts and risk losing their homesteads, the South African system offers little to no protection against homelessness. Against this background, this dissertation argues that there needs to be a re-assessment of the homestead inclusion in the insolvent estate. This re-assessment considers international law perspectives, the interests of children and any other dependants in the case of a debtor’s home being sold, as well as the position of creditors. N/A Mercantile Law LLM (Insolvency Law) Unrestricted Faculty of Laws None 2025-01-28T10:26:11Z 2025-01-28T10:26:11Z 2025-04-22 2024-11-18 Dissertation * A2025 http://hdl.handle.net/2263/100346 10.25403/UPresearchdata.28248857 en © 2023 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Sustainable Development Goals (SDGs) Insolvency Homestead Exemption Jaftha A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title | A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title_full | A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title_fullStr | A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title_full_unstemmed | A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title_short | A re-assessment of exempted assets in insolvency law : the case for a homestead exemption |
| title_sort | re assessment of exempted assets in insolvency law the case for a homestead exemption |
| topic | UCTD Sustainable Development Goals (SDGs) Insolvency Homestead Exemption Jaftha |
| url | http://hdl.handle.net/2263/100346 |