oa De Jure - Taming the mechanics of mortgage foreclosures : the case of ABSA Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ) - recent case law

Volume 52 Number 1
  • ISSN : 2225-7160



The issue of foreclosures has for a while now, been of immense public interest (see e.g. Brits ‘The “reinstatement” of credit agreements: Remarks in response to the 2014 amendment of section 129(3)-(4) of the National Credit Act” 2015 Dejure 5; Sham “Executed in execution: discussion and suggestions regarding the immovable property foreclosure process in South Africa” Available at https://researchspace. ukzn.ac.za/xmlui/bitstream/handle/10413/15030/Sham_Nikhil_2017. pdf?sequence=1&isAllowed=y)). It is a well-known subject and only needs a brief recital. To put that assertion into perspective, it is reported that South Africa has historically been characterised as having one of the most uncompromising, aggressive and highest number of executions against homes in the world (Shaw “Too quick to execute – how does SA’s new rules on sale in execution compare internationally?” 2016 De Rebus). Traumatic anecdotal evidence from the media and decided cases points to an unfair system which for many decades now – aided by judicial indecision and want of legislative intervention – has led to bourgeoning numbers of foreclosure applications and subsequent home losses (see e.g. Chemwi Evictions in South Africa Community Law Centre; Truter “Evictions – a sad reality in South Africa” 2016 De Rebus 30). For instance, the Local Division of the High Court in Johannesburg railed that it “has had to adjudicate the substantial rise in foreclosure applications. These applications have at times exceeded hundreds per week’ (Absa Bank Limited v Lekuku (32700/2013) [2014] ZAGPJHC 244 (14 October 2014) at Para 9). The chaotic regime through which these repossessions were undertaken engendered reservations about the possibility of collusion between banks and ‘bargain hunters.’ It was associated with an environment where primary residences of financially distressed people were auctioned for unreasonable amounts and in circumstances, which were manifestly irreconcilable with the debtor’s constitutional rights.

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