Parate executie clauses: Is the debate dead?

Since its inception,the Constitution of the Republic of South Africa,Act 108 1996 has time and again compelled the refinement, revision and, in some cases,the abandonment of established legal principles.In this note we consider the impact of the recent Supreme Court of Appeal decision in Bock & others v Duburoro Investments (Pty) Ltd 2004 (2) SA 242 (SCA) on the debate concerning the constitutionality of parate executie clauses in pledges of movables. Simply put, these clauses (almost invariably included in pledge agreements) provide for the sale by the creditor, on default by the debtor, of property pledged to the creditor without recourse to the courts.The primary issue is whether these clauses unjustifiably infringe s 34 of the Constitution, which grants everyone the right to have ‘any dispute that can be resolved by the application of law’ decided in a court or independent tribunal