Judicial Oversight for Sales in Execution of Residential Property and the National Credit Act
De Jure 2012 533-555
24 Pages Posted: 1 Feb 2013
Date Written: May 23, 2012
Practical effect is given to the terms of a court order through the process of execution. When property is sold in execution, there must be a preceding judgment and an attachment in execution of that judgment. Execution is therefore the procedure whereby a successful litigant (called the judgment creditor) can follow to enforce a judgment against the judgment debtor, and is regarded as crucial to the legal process. During the past decade, this process has become more intricate with the introduction of the National Credit Act (NCA) and the judgements of Jaftha v Schoeman; Van Rooyen v Stoltz and Gundwana v Steko Development CC.4 This article will start by highlighting the procedural and substantive protection a debtor receives in terms of the NCA when a home is sold in execution, after which the process before the Jaftha judgment will be explained. A chronological discussion of the cases from Jaftha to Gundwana will follow. In conclusion the interaction between the NCA, Gundwana or Jaftha will be explained. The purpose of this article is to discuss the most important cases in chronological order and to highlight what each case added to the issue. Even though most of the uncertainties surrounding execution in terms of the high court rules were mooted by Gundwana v Steko Development CC, the cases leading up to Gundwana would serve as guidelines as to when a court can declare immovable property executable.
Keywords: sales in execution, foreclosure, national credit act, South Africa
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