n Law, Democracy & Development - 'Safe as houses'? - Balancing a mortgagee's security interest with a homeowner's security of tenure
|Article Title||'Safe as houses'? - Balancing a mortgagee's security interest with a homeowner's security of tenure|
|© Publisher:||University of the Western Cape|
|Journal||Law, Democracy & Development|
|Publication Date||Nov 2007|
|Pages||101 - 119|
In the case of Jaftha v Schoeman & Others; Van Rooyen v Stoltz & Others, the Constitutional Court set aside the sale in execution, at the instance of their creditors, of the immovable property of each of the two appellants on the basis that, in the circumstances, it amounted to an unjustifiable infringement of their right to have access to adequate housing, protected by section 26 of the Constitution. Following upon this, a number of reported cases have dealt with the issue whether the sale in execution of immovable property which has been mortgaged in favour of a creditor may constitute an infringement of the debtor's section 26 rights and, if so, whether such infringement is justifiable in terms of section 36 of the Constitution.
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