Execution against a debtor's home in terms of Roman-Dutch law and the contemporary South African law: comparative observations

Résumé 0

Relatively recently, fundamental changes, not only in the law, but also in policy and judicial approach, have occurred in the context of debt enforcement by execution against a debtor's home. These have been the product of the recognition of the right to have access to adequate housing, provided by section 26 of the Constitution of the Republic of South Africa, 1996, and the regulation by the National Credit Act 34 of 2005 of debt enforcement procedures against consumers in credit transactions, including mortgage bond agreements. South African common law principles applicable to mortgage bonds and applicable in the context of execution against a mortgagor's immovable property that constitutes his or her home, are rooted in Roman-Dutch law. Certain Roman-Dutch procedural rules and practices may be identified as having generally tended towards affording a measure of protection for the home of a debtor against execution by a creditor. These were rules which, for example, encouraged extra-judicial settlement negotiations and required personal service of summonses, four defaults before default judgment could be obtained in respect of a claim involving immovable property, and a more protracted procedure for execution against immovable, as opposed to movable, property. Exacting requirements were also imposed in order to maximise the price obtained at a judicial sale of immovable property. The same procedural rules and practices were not evident in the pre-Bill of Rights South African law. However, they may be viewed as being more in line with contemporary, constitutional imperatives, as well as law reform initiatives, to balance the various rights applicable in the context of execution against a debtor's home and to ensure that execution against a debtor's home may occur only as a last resort, where there are no alternative means by which the debt may be satisfied.