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The recent case of Nkata v Firstrand Bank Limited 2014 2 SA 412 (WCC) illustrates the failure of the applicable South African statutory provisions to deal satisfactorily with the situation in which a homeowner, having fallen into arrears in respect of home mortgage obligations, thereafter remedies his default by paying the arrears to the mortgagee. The judgment exposes the lack of clarity regarding the application of subsections 129(3) and (4) of the National Credit Act 34 of 2005 ("NCA") and the mortgagor's entitlement to reinstatement of the mortgage agreement in such circumstances. It brings to the forefront the need for uniform and consistent application in all high courts of clearly articulated substantive and procedural requirements, including steps with which creditors and debtors should comply, before the sale in execution, or "forced sale", of a person's mortgaged home (sometimes loosely referred to as "home mortgage foreclosure") may proceed.
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