n Law, Democracy & Development - 'Safe as houses'? - Balancing a mortgagee's security interest with a homeowner's security of tenure

Volume 11, Issue 2
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907



In the case of , 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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