n Stellenbosch Law Review = Stellenbosch Regstydskrif - Sales in execution of immovable property, the rules of court and the Consumer Protection Act regulations : back to the drawing board?

Volume 25, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



Banks often lend money to prospective home owners, which loans are secured by mortgage bonds. When owners default on payments, the banks foreclose by taking judgment against the owners, and selling the properties in execution by public auction. The Rules of the High Court and the Magistrate's Court Rules regulate these auctions in detail. In 2008, the Consumer Protection Act 68 of 2008 was enacted. Section 45 governs auctions, and for purposes of section 45 and the regulations promulgated under it, "auction" includes a sale in execution pursuant to a court order. In this article, we show that the Consumer Protection Act, read with the Regulations, does not make sense with regard to sales in execution. It seems clear that the Regulations aim to protect bidders at a normal auction, especially the provisions that aim to regulate the participation of owners or their agents as bidders and the requirement of the notice of a reserve price. This is already covered under the Uniform Rules of Court. Any other reading of the Regulations leads to absurdities. Based on this finding, we propose that section 45 of the Consumer Protection Act in general, and the Regulations in particular, need to be rethought.

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