To foreclose or not to foreclose: revealing the ‘cracks’ within the residential foreclosure process in South Africa
Authors Ciresh Singh
Affiliations: LLB, LLM, PhD Candidate at the University of KwaZulu-Natal.
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 145 – 162
The execution against hypothecated immovable property, also known as foreclosure, involves a delicate balancing of mortgagor and mortgagee rights. Section 26(1) of the Constitution of the Republic of South Africa, 1996 (‘Constitution’) provides that ‘everyone has the right to have access to adequate housing’. Foreclosure can be seen as an infringement of a mortgagor’s right to have access to adequate housing. Thus, during foreclosure a balance needs to be struck between the mortgagor’s right to have access to adequate housing and the mortgagee’s foreclosure rights. Unfortunately, South African law has not provided clarity on the balancing of mortgagor and mortgagee rights during the foreclosure process and this has resulted in considerable inconsistency. With the exception of rule 46A of the Uniform Rules of Court, there is no specific legislation that governs foreclosure process. This ‘crack’ in the law is concerning given the economic and social impact of mortgage and foreclosure. The argument in this article is that current rules governing foreclosure are inadequate and lack a structured framework. In particular, the current laws do not provide any clarity as to when foreclosure against a home is justifiable or when it is not, nor do they provide any guidelines for courts to consider during foreclosure proceedings. This lack of clarity has resulted in much confusion, and it is submitted that there is a need for establishing clarity for purposes of certainty in law regarding foreclosure. Accordingly, it will be suggested that the adoption of a ‘Foreclosure Act’ is required to establish clarity in foreclosure process and fairly balance the interests of all parties concerned during foreclosure against a home.