- Title
- The protection of the primary residence of a debtor in debt enforcement and insolvency
- Creator
- Ngobese, Surname, Nokhwezi Xatyiswa
- Subject
- Protection
- Subject
- Debtor and creditor -- Law and legislation
- Subject
- Bankruptcy -- Law and legislature
- Date Issued
- 2023-04
- Date
- 2023-04
- Type
- Master's theses
- Type
- Thesis
- Identifier
- http://hdl.handle.net/10948/61328
- Identifier
- vital:70288
- Description
- Many people, particularly in South Africa, turn to borrowing money to pay for their everyday expenses. It is also generally acknowledged that mortgage financing is crucial to our economy and that it should remain readily available to people with a variety of incomes. Banks, and other secured lenders need confirmations that their security is reasonably safe to ensure that this remains the case. A debtor with immovable property is preferred because should the debtor fail to comply with his contractual obligations and there is no movable property to attach, the creditor will proceed to attach the immovable property of that debtor. In South Africa the law relating to debt enforcement proceedings and the provisions of the Insolvent Act allow for the attachment of the primary residence of a debtor/insolvent. There is a judicial process that is followed for the attachment of the house through debt enforcement. During insolvency the debtor is divested of his property immediately after granting of the sequestration order. These proceedings go as far as stripping a poor person of even a RDP house that they obtained through the Housing Act, a programme designed to provide housing to the poor. This study examines the relationship between the right to access housing and the right to human dignity, considering South Africa's past, the idea of transformative constitutionalism, and the argument that the 1996 South African Constitution's transformative vision is one that is committed to addressing socio-economic inequality. The legal position in South Africa is compared to that of the United Kingdom and the recommendation made by the study is that a stay in proceedings during insolvency for a defined period before the home of the insolvent is sold in execution would help advance the goals of the government and protect rights of those people whose estates are declared insolvent. Further, a complete exclusion of RDP houses from debt enforcement proceeding and insolvency, is suggested. The rights to equality and the right to property are considered in favour of the creditor. All rights are considered against the limitation clause, and it is submitted that a stay in sale of the primary household for a specific period during insolvency proceedings and the complete exclusion of RDP homes from sales in execution and sales during sequestration would not amount to an unjustifiable limitation of the creditor’s rights.
- Description
- Thesis (LLM) -- Faculty of Law, School of School of Private Law, 2023
- Format
- computer
- Format
- online resource
- Format
- Format
- 1 online resource (viii, 205 pages)
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Private Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Ngobese, NX.pdf | 1 MB | Adobe Acrobat PDF | View Details Download |