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Statutory regulation of forced sale of the home in South Africa
Thesis (LLD)--University of Pretoria, 2012.
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University of Pretoria
2013
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| _version_ | 1867613528035164160 |
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| access_status_str | Open Access |
| author2 | Boraine, A. (Andre), 1957- |
| author_browse | Boraine, A. (Andre), 1957- |
| author_facet | Boraine, A. (Andre), 1957- |
| collection | Thesis |
| dc_rights_str_mv | © 2012 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 | Thesis (LLD)--University of Pretoria, 2012. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/28364 |
| institution | University of Pretoria (South Africa) |
| last_indexed | 2026-06-10T12:37:34.574Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2013 |
| publishDateRange | 2013 |
| publishDateSort | 2013 |
| 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:2263/28364 Statutory regulation of forced sale of the home in South Africa Boraine, A. (Andre), 1957- steyn@ukzn.ac.za Steyn, Lienne Substantive and procedural requirements Insolvency procedures in south africa Individual debt enforcement UCTD Thesis (LLD)--University of Pretoria, 2012. The home of a debtor has never enjoyed specific statutory protection against forced sale in the individual debt enforcement and insolvency procedures in South Africa. In Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (2005 (2) SA 140 (CC)) and Gundwana v Steko Development CC and Others (2011 (3) SA 608 (CC)), the Constitutional Court recognised that in the individual debt enforcement process execution against a debtor's home, even where it has been mortgaged in favour of a creditor, may constitute an unjustifiable infringement of the right to have access to adequate housing, provided by section 26 of the Constitution. The effect of these decisions is that, in every case in which a creditor seeks to execute against a person's home, a court must consider "all the relevant circumstances" to determine whether execution is justifiable, in terms of section 36 of the Constitution. The absence of a properly constructed framework, incorporating clear substantive and procedural requirements, within which these recently established principles must be applied, has led to divergent approaches in the courts and a lack of clarity regarding circumstances in which execution against a debtor's home will be permitted. Further, courts have not considered the impact of section 26 and other rights on the position where a debtor's home is realised by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936. This has given rise to a number of unanswered questions as well as to a lack of predictability that potentially hold adverse consequences for bond finance, commerce, and the economy generally. The need to balance the competing interests emphasises the necessity for a coherent contextual framework within which forced sale of a debtor's home may occur. This thesis examines issues surrounding forced sale of a debtor's home in South Africa. It compares the position in other legal systems and suggests mechanisms and an appropriate method, or process, for inclusion in statutory provisions to regulate the forced sale of a debtor's home in both the individual debt enforcement and insolvency procedures in South Africa. Mercantile Law unrestricted 2013-09-07T13:22:43Z 2012-10-04 2013-09-07T13:22:43Z 2012-09-07 2012-10-04 2012-10-02 Thesis Steyn, L 2012, Statutory regulation of forced sale of the home in South Africa, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://hdl.handle.net/2263/28364 > D12/9/242/ag http://hdl.handle.net/2263/28364 http://upetd.up.ac.za/thesis/available/etd-10022012-144930/ © 2012 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 application/pdf application/pdf application/pdf application/pdf application/pdf application/pdf application/pdf application/pdf application/pdf application/pdf University of Pretoria |
| spellingShingle | Substantive and procedural requirements Insolvency procedures in south africa Individual debt enforcement UCTD Statutory regulation of forced sale of the home in South Africa |
| title | Statutory regulation of forced sale of the home in South Africa |
| title_full | Statutory regulation of forced sale of the home in South Africa |
| title_fullStr | Statutory regulation of forced sale of the home in South Africa |
| title_full_unstemmed | Statutory regulation of forced sale of the home in South Africa |
| title_short | Statutory regulation of forced sale of the home in South Africa |
| title_sort | statutory regulation of forced sale of the home in south africa |
| topic | Substantive and procedural requirements Insolvency procedures in south africa Individual debt enforcement UCTD |
| url | http://hdl.handle.net/2263/28364 http://upetd.up.ac.za/thesis/available/etd-10022012-144930/ |