Executed in execution : discussion and suggestions regarding the immovable property foreclosure process in South Africa.
The right to housing is not only important because of its socio-economic role in society – also because of our racially and socio-economically divided past. Despite the vital function housing plays, manifested in the constitutional aegis of Section 26, our legislature has failed to enact specific legislation that enunciates a tailor-made procedure and clarifies the substantive rights that homeowners should enjoy against their homes being sold in execution. Consequently, this drastic procedure which deprives often the most vulnerable of society their shelter, has been left to be mainly regulated by court rules. These rules are outdated and I assert that it certainly does not reflect the full level of protection the Constitution intended to give home owners. Due to the apparent failure of the legislature, the responsibility has fallen to the judiciary to prevent injustices from occurring. The Constitutional Court (hereinafter ‘the CC’) has had to significantly develop our law as evidenced in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140(CC) and Gundwana v Steko Development CC and Others 2011 (3) SA 608 (CC); however as the dates indicate – progress has been painstakingly incremental. Taking the 10 year period between from 2006 to 2015 statistics show that 112,325 properties in South Africa were sold in execution - over 11 000 a year. This is exponentially higher than both the United States of America and the United Kingdom over the same period of time. To exacerbate the situation, the majority of these properties have been sold below market value – with many being sold for 30% or more below their market value. Despite judicial progress being made in this field and the legislature putting forward a bill to amend the court rules progressively, reports persist of members of the public being short-changed by unscrupulous mortgagees. This study will focus on the current judicial procedure that needs to be followed for immovable property1 to be sold in execution of an outstanding and overdue debt. It will further critique the progress that has been made and suggest the progress that needs to be made. Particular attention will be paid to Section 26 of the Constitution and the way it has and should direct the realisation of the right of access to housing.
Master of Laws in Constitutional Law. University of KwaZulu-Natal, Durban 2017.