MORTGAGE FORECLOSURES AND THE NATIONAL CREDIT ACT: BALANCING THE RIGHTS OF THE CREDITOR AND THE RIGHTS OF THE DEBTOR IN LIGHT OF JAFTHA V SCHOEMAN

David Marais

Abstract


The right of a creditor to foreclose a mortgage agreement, usually against the default of the debtor, and the subsequent sale in execution of the hypothecated immovable property is an important part of any modern credit-driven economy. A creditor, as mortgagee, may rely on the common law right to foreclose a mortgage agreement as a legally sanctioned means to ensure the enforcement of the mortgage debt. However, the foreclosure of a mortgage agreement will invariably implicate a number of constitutional rights and principles that are protected by the Constitution of the Republic of South Africa, 1996 (the “Constitution”).

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