PE woman wins Concourt case against law dating back to Jan Van Riebeeck

JUNE 5, 2015

A woman from Port Elizabeth on Thursday won a Constitutional Court case that will change a property law that has been applied since the arrival of Jan Van Riebeeck!

"On a day of torrential rain, howling winds and swirling squalls, a Port Elizabeth woman will find comfort from a decision by the Constitutional Court that guarantees the home she has paid for will at last be hers," said Legal Aid SA, in a statement.

"The ordeal for Virginia Sarrahwitz began in 2001 when she paid R40 000 for a property with her life's savings. However, in an endeavour to obtain transfer of the property, she was sent from pillar to post for many years after having taking occupation and subsequently the person who she had bought the property from was declared bankrupt in 2006.

"Transfer had not been done at this stage as the transferring attorneys were still waiting for a rates clearance certificate from the Nelson Mandela Metropolitan Municipality."

Legal Aid SA said that the rates clearance certificate was not issued as the insolvent owned a number of properties and the Municipality had allocated the Applicant's payments for outstanding rates and taxes to the wrong municipal account. Had the Municipality not credited the wrong municipal account, transfer in all likelihood would have been effected prior to sequestration of the insolvent. 

"The trustee of the insolvent estate refused to transfer the property into Sarrawitz's name in spite of all the evidence showing she had paid for the property and that the delays in transfer were not caused by her. At this point she referred the matter to Legal Aid South Africa's Port Elizabeth Justice Centre where the matter was dealt with by Senior Litigator Lilla Crouse and Professional Assistant, Roche van As.

"The Court noted that the Land Act entitles a vulnerable purchaser of residential property who pays the purchase price in two or more instalments over a period of one year or longer to demand transfer of that property if the seller becomes insolvent. However, an equally vulnerable purchaser who somehow manages to make a once-off payment or pays the purchase price within a year is not entitled to transfer in those circumstances. Transfer is precluded even if the failure to do so would render the vulnerable purchaser homeless. The Court held that the Land Act was therefore inconsistent with Mrs Sarrahwitz's constitutional rights of access to adequate housing, dignity  and equality," it said.

"This decision sets a precedent which will require a change in the law and will protect poor and vulnerable people, many of whom have little understanding of property transfers and ownership.

"Strangely enough had Sarrahwitz paid a deposit and was paying the house off in terms of a purchase agreement she would have been able to take transfer. In other words it could be seen that she was being penalised for paying cash!" 

Legal Aid SA Attorney, Roche van As, said that whilst the case was fairly complex in terms of the law the matter was really; "about a vulnerable woman whose home is her castle and whose life's earnings and dignity is reflected in the home she has established."

He said the decision will help others in similar situations and will hopefully also lead to a reconsideration of property rights and protection of vulnerable consumers.

Adv Lilla Crouse added that this decision will change a law that has in effect been applied since the arrival of Jan Van Riebeeck and was based on European laws dating back to the 17th Century and earlier.