n Without Prejudice - A need for a specialised Foreclosure Act? - financial law

Volume 20 Number 3
  • ISSN : 1681-178X


The foreclosure process involves a delicate balancing of mortgagor and mortgagee rights. From a mortgagor perspective, he or she is protected by s26(1) of the Constitution which provides that ‘everyone has the right to have access to adequate housing’. Although this right does not entitle one to ownership of a home, it ensures that everyone has the right to a fair standard of living and is linked to other fundamental human rights, such as the right to dignity, privacy and freedom. From a mortgagee perspective, they are protected by s25 which provides for the right to acquire property, and the right not to be unlawfully deprived of the property. Section 25 protects a mortgagee’s property rights, in particular, his real right of security (foreclosure rights).

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