Protection for homes during mortgage enforcement : human-rights approaches in South African and English law
Date
2015-01
Authors
Journal Title
Journal ISSN
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Publisher
Juta Law
Abstract
This article investigates the enforcement of mortgages in South Africa and England. It
specifically focuses on the influence of human-rights housing principles in so far as they
may require courts to conduct a proportionality enquiry whenever a legal process leads to
the loss of a home. It appears that art 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms — essentially the United Kingdom’s
housing clause — is conceptually similar to s 26(1) of the South African Constitution.
The underlying idea is that, when a home is violated, justification must be provided as
regards the proportionate relationship between the purpose of the violation and the impact
of the violation on the occupier. English law already accepts that this principle applies
when local authorities seek to evict unlawful occupiers, but this approach has not yet been
extended to mortgage repossessions. Conversely, South African law already acknowledges
that the housing clause must be applied in mortgage cases. After investigating
developments in both jurisdictions, the article concludes that a proportionality test is
workable in mortgage cases. Furthermore, the traditional assumption that ‘creditors must
win’, although still relatively strong, is in the process of being replaced by a more
contextual approach.
Description
CITATION: Brits, R. 2015. Protection for homes during mortgage enforcement: Human-rights approaches in South African and English law. South African Law Journal, 132(3):566-595.
The original publication is available at https://journals.co.za/content/journal/ju_salj
The original publication is available at https://journals.co.za/content/journal/ju_salj
Keywords
morgage enforcement, home protection, mortgage financing
Citation
Brits, R. 2015. Protection for homes during mortgage enforcement: Human-rights approaches in South African and English law. South African Law Journal, 132(3):566-595.