Post on 27-Feb-2023
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case no: CCT 93/14 In the matter between VIRGINIA SARRAHWITZ APPLICANT and HERMANUS MARITZ N.O. FIRST RESPONDENT MINISTER OF TRADE AND INDUSTRY SECOND RESPONDENT
WRITTEN ARGUMENT IN THE LEAVE TO APPEAL APPLICATION TO
BE HEARD ON 10 NOVEMBER 2014
INDEX:
1. Introduction ................................................................................................ 2 2. Factual background to the dispute ........................................................... 3 3. The common law position and changes thereto ......................................... 7 4. The unconstitutionality of the common law position, read with the Land
Act and with reference to the Bill of Rights ................................................. 9 4.1. Equality ............................................................................................. 12 4.2. Property ............................................................................................. 16 4.3. Fair administrative action .................................................................. 25 4.4. Housing/Dignity ................................................................................. 29
5. Land Act ................................................................................................... 29 6. Is it in the interest of justice to grant leave to appeal ................................ 31 7. Constitutional issue raised in Leave to Appeal Application ...................... 32
2
8. Prescription ............................................................................................... 38 9. Relief sought ............................................................................................. 43 10. Contact details .......................................................................................... 44 11. Table of authority together with place of citation ...................................... 45
INTRODUCTION:
1. This is an Application for Leave to Appeal to this Honourable Court.
2. The crux of the Applicant’s case is that the common law position as it
currently stands, namely that immovable property regularly bought and
fully paid before the seller’s sequestration and leaving the buyer without
any recourse, is unconstitutional.
3. This submission will be developed by reference to:
3.1. Factual background to the dispute;
3.2. The common law position and changes thereto;
3.3. The unconstitutionality of the common law position, read with the
Land Act and with reference to the Bill of Rights in respect of the
right to equality, property, fair administrative action, housing and
dignity;
3.4. Whether the Land Act is unconstitutional;
3
3.5. Whether it is in the interest of justice to grant leave to appeal;
3.6. The constitutional issue raised in the Leave to Appeal Application;
3.7. Prescription;
3.8. Relief sought.
FACTUAL BACKGROUND TO THE DISPUTE: 4. The Applicant is a vulnerable woman1 who is the head of her
household.
5. In 2002 she was working and wanted to buy a house. Upon
approaching an estate agent for assistance, the Applicant was duly
referred to one Posthumus (hereinafter referred to as “the insolvent”)
who, at the time, was the owner a number of homes. After being shown
one of the homes he had available to purchase, she borrowed R40 000
from her employer. This constituted the maximum amount available to
her, and she gave the money to the insolvent.2 Subsequently the
Applicant and the insolvent signed a Deed of Sale on 17 September
2002 and the Applicant took occupation of the property in October
1 Application page 8 paragraph 2: She is 50 years old, unemployed and the head of her
household. She passed standard 8 (Grade 10) and was retrenched from her employment. 2 Application page 11 paragraph 11.
4
2002.3 The Applicant is a lay person and the insolvent undertook to
arrange for transfer of the house to the Applicant.4
6. The sale agreement was entered into regularly and at arms’ length. An
estate agent referred the Applicant to the insolvent. She did not know
the insolvent.5 The property is situated in a low income area. The
insolvent had bought the property in August 2001 for R15 000.
Approximately a year later in September 2002 the Applicant bought the
property from the insolvent for R40 000.6 As stated this amount
constituted the maximum amount she could borrow from her employer.7
Three years after the sale agreement in September 2005 the municipal
value of the property was R11 620.8
7. In an endeavour to obtain transfer of the property, the Applicant was
sent from pillar to post for many years after having taking occupation.9
8. It is common cause that prior to the sequestration of the insolvent in
April 2006, the Applicant paid the full purchase price of the property and
3 Application page 11 paragraphs 11 and 12.
4 Application page 11 paragraph 13.
5 Application page 20 paragraph 50.
6 Application page 20 paragraph 49.
7 Application page 11 paragraph 11.
8 Application page 20 paragraph 50.
9 Application pages 12-17.
5
all the necessary requirements to obtain registration of the property
were complied with, but for the issue of a rates clearance certificate10
by the Municipality.
9. The rates clearance certificate was not issued as the insolvent owned a
number of properties, and the Municipality allocated the Applicant’s
payments for outstanding rates and taxes to the wrong municipal
account.11
10. Had the Municipality not credited the wrong municipal account, transfer
in all likelihood would have been effected in the name of the Applicant
prior to sequestration of the insolvent.
11. The insolvent’s estate was sequestrated in April 2006 while the
registration attorneys overseeing the transfer of the Applicant’s newly
acquired property, were waiting on the outstanding rates clearance
certificate.
10
In terms of section 118 of Local Government: Municipal Systems Act 32 of 2000 transfer may
not be effected without a rate clearance certificate by the local government where the property is
situated in respect of debt due for rates and taxes in connection with the relevant property during
the two years preceding the date of the application for the rate clearance certificate. Such a
certificate is only valid for 60 days after being issued. 11
Application page 16 paragraph 32.
6
12. Subsequent to the sequestration of the insolvent’s estate, the First
Respondent was duly appointed as Trustee to administer the
insolvent’s estate. The First Respondent in executing his duties as
Trustee to the insolvent’s estate, refused to consent to the transfer of
the said property into the Applicant’s name. The refusal to consent
remains inexplicable as the trustee was aware alternatively should have
been aware that the Applicant had in fact paid the full purchase price.
Moreover, the trustee knew alternatively should have known that the
Applicant from the proceeds of her retrenchment package, had made
useful and necessary improvements to the property the value of which
came to about R80 000.12
13. What followed were settlement negotiations until or about 28 July 2011.
The negotiations were however unsuccessful as no agreement
regarding the transfer of the property could be reached.13
14. After the failed settlement negotiations and on 27 March 2012 the
Applicant brought an application for the registration of the property to
her. Regrettably, the papers in the Application before Court, contained
very little facts. Instead, they were cluttered with triviality and irrelevant
12
Application page 20 paragraph 51. 13
Application page 91 paragraph 4.14 (First Respondent’s version).
7
legal argument. The Applicant would therefore, be severely prejudiced
in her appeal if the full factual picture contained in the Application to this
Court for Leave to Appeal, most of which is common cause, not be
placed before the Court hearing the appeal.
THE COMMON LAW POSITION AND CHANGES THERETO:
15. In Harris v Trustee of Buissine (1828-1824) 2 Menz 113, which was
decided by the Supreme Court of the Cape of Good Hope on 23 June
1840, the Court ruled that:
15.1. Ownership of immovable property could, in accordance with the
laws of Holland, only be conveyed by transfer coram lege loci;
15.2. This law of Holland was introduced into the law of the Cape of
Good Hope with the rest of the laws of Holland in 1652;
15.3. When a court orders the sequestration of a seller’s estate before
registration to the buyer had taken place, the immovable property
(and slaves) will then vest in the Master of the Supreme Court and
later in the Trustee for the benefit of the creditors;
8
15.4. If part of the purchase price had been paid by the buyer and the
Trustee refuses to perfect the sale agreement, the buyer then has
a personal concurrent claim against the estate.
16. Both the Cape14 and Natal Supreme Courts15 held that where a (first)
purchaser purchases immovable property and he, without taking
transfer of the property, re-sells the property to another (second)
purchaser while it is still registered in the name of the original owner;
then, should the first purchaser subsequently be sequestrated his
Trustee is not entitled to prevent this second purchaser from obtaining
transfer of the property.
17. In Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards
Incorporated16 this principle in respect of re-selling by the non-
registered owner prior to his sequestration was confirmed by the SCA.
18. The common law position regarding instalment sales where the seller is
sequestrated after a sale but before registration to the purchaser could
take place, was altered by an amendment17 to the Sale of Land on
14
Van Aardt v Hartley’s Trustees (1845) 2 Menz 143; Trustee of Webster v Weakley (1860) 3
Searle 373. 15
Trustee of Insolvent Estate of Mccall v G.H. Hulett (1901) 22 NLR 215. 16
1998 (4) SA 1182 (SCA) at 1189. 17
Sale of Land on Instalments Amendment Act 49 of 1975.
9
Instalments Act 72 of 1971 (Instalment Act). This Act was subsequently
repealed by the Alienation of Land Act 68 of 1981 (Land Act). Currently
the Land Act deals with instalment sales.
19. The Land Act altered the common law position insofar as a remote
purchaser is concerned where the registered owner of the land is
sequestrated prior to transfer of the immovable property to the ‘remote
purchaser’.
20. It is submitted that the High Court correctly found that the common law
is applicable in casu and that the ownership of the property sold to the
Applicant prior to the sequestration of the insolvent’s estate, but not yet
transferred to the Applicant, vested in the insolvent’s Trustee.
21. It will be submitted that this position is untenable under our new
Constitutional dispensation.
THE UNCONSTITUTIONALITY OF THE COMMON LAW POSITION, READ WITH THE LAND ACT AND WITH REFERENCE TO THE BILL OF RIGHTS
22. Where land is purchased in the course of a regular transaction and the
purchaser pays the purchase price prior to the sequestration of the
10
seller, as the Applicant has done in this matter, yet there is no recourse
for the Applicant to obtain transfer, creates a feeling of shock and
inequity. Rendering a buyer without remedy, including the transfer of
property, further will doubtlessly induce a sense of shock to the
reasonable consumer. This is particularly so in circumstances where
the purchaser is a vulnerable person, as is in casu and where the
prejudice suffered, is insurmountable.
23. The Instalment Act was amended to alter the common law position in
respect of instalment sales to protect the interests of purchasers as the
common law “often caused very real hardship and misfortune,
particularly to purchasers of residential stands in newly established
townships owned by companies that were placed in liquidation on
account of insolvency.”18
24. Similarly it is contended that very real hardship and misfortune befalls a
purchaser who, especially in the current South African socio-economic
climate where the scarcity of housing looms large, pays the full
purchase price in respect of immovable property that he/she buys in
good faith, is left without a remedy where the seller is sequestrated
18
Glen Anil Finance (PTY) LTD v Joint Liquidators, Glen Anil Development Corporation LTD
(In Liquidation) 1981 (1) SA 171 (A) at 183.
11
prior to the registration of the property is affected in the purchaser’s
name.
25. The hardship and misfortune which affects the Applicant, and others
similarly situated, will be discussed with reference to our Bill of Rights
and measured in the context of the prevailing economic circumstances
and extreme poverty and housing shortages in South Africa seen
against the historical background.
26. It will be submitted that a need exists to develop the common law as
contemplated in section 39(2) of our Constitution.
27. In considering whether there is a need to develop the common law
under section 39(2) of our Constitution, a court will consider whether
the applicable common law rule is inconsistent with a specific provision
of our Constitution. If the applicable rule is not inconsistent with a
specific provision of our Constitution, the court will consider whether the
common law rule falls short of the spirit, purport and object of our
constitutional objects and values.
28. In both instances19 a two-stage enquiry should be followed:
19 Thebus and Another v S 2003 (10) BCLR 1100 (CC) at [27]-[32].
12
28.1. Where there is an inconsistency with a specific constitutional
provision, the court shall decide whether the common law rule
infringes on an entrenched right and if so, consider whether the
limitation is reasonable and justifiable in an open and democratic
society.
28.2. Where the common law rule falls short of the spirit, purport and
object of our constitutional objects, the court should consider
whether, given the objectives contemplated in section 39(2) of our
Constitution, the common law should be developed beyond the
existing precedent. Where the Court finds that to be the case, then
the Court will decide how the common law rule should be
developed and who would be best suited to do so.
29. In motivating the development of the common law rule, the infringement
of the Applicant’s entrenched rights will be discussed under separate
headings herein under.
Equality:
13
30. Section 9(1) of the Constitution states that everyone is equal before the
law and has the right to equal protection and benefit of the law.
31. Section 9(2) of the Constitution states that equality includes the full and
equal enjoyment of all rights and freedoms. The Constitution thus
guarantees that the law will protect and benefit people equally.
32. Section 9(2) further states that legislative or other measures may be
taken to promote the achievement of equality to advance persons or
categories of persons disadvantaged by unfair discrimination.
33. As with all rights entrenched in our Bill of Rights, the historical and
social context plays an important role in determining the meaning of
equality. In Brink v Kitshoff NO 1996 (4) SA 197 (CC) [40], this Court
stated that our history was of particular relevance to the concept of
equality.
34. The Applicant is a particularly vulnerable woman. She belongs to a
vulnerable class of people: unemployed; heading a household;20 poor;
poorly educated. The property is situated in a low-income area.
20
2009 SAJHR 517 Lilian Chenwi and Kirsty McLean: 'A woman's home is her castle?' –
Poor women and housing inadequacy in South Africa at page 533.
14
Although the value of the property is very low, it means everything in
the social setting of the Applicant.
35. The Applicant is a black woman who in the past has being subjected to
discrimination. Our new constitutional dispensation has brought her
very little advancement. She falls in the bottom stratosphere which
Seekings and Nattrass21 define in their stratification of post-apartheid
society. This denotes to a marginal working class and underclass which
is growing in numbers, causing an ever widening gap between the rich
and the poor.
36. The Applicant obtained possession of the property after a loan by her
employer. After her retrenchment, she used her pension money to
make improvements to the property. This property can therefore be
seen as the product of her entire working life. Yet, if the common law
remains to stand as it is, she and her household will have nothing to
show for her life’s work and in all likelihood be destitute.
37. The Applicant relies on section 9(1) of the Constitution in pursuing her
right to equality in that the common law, read with the Land Act,
differentiates between her and other purchasers of immovable property
21
Class, Race and Inequality in South Africa (2006) p337.
15
who may have made part payments before transfer could take place in
circumstances where the seller is subsequently sequestrated.
38. As set out above, the Legislature had chosen to amend the common
law in respect of remote purchasers and purchasers on instalment
sales of land.
39. By altering the common law, section 22 of the Land Act gives a
purchaser of land on an instalment sale a mechanism to obtain
registration of the property. This remedy also includes access to the
Master if the Trustee does not act fairly.
40. The crux of these amendments must be seen as an effort to protect
purchasers against (unfair) financial hardship.
41. It will be argued that similar hardship beset South African citizens who
pay the full purchase price to a seller who is sequestrated subsequent
to sale agreement and payment.
42. The Applicant’s complaint is that her right of equality is infringed,
because a purchaser of immovable property (who has only paid part of
16
the purchase price before the seller is sequestrated) has a remedy22 to
secure transfer of the property, whilst she as a purchaser (who has paid
the full purchase price) has no remedy to secure transfer of the
property.
43. Seen against the historical context of the right to equality, there can be
no rational connection to a legitimate government purpose to
differentiate thus between the Applicant and purchasers on instalment
sales.
44. The common law as it stands read with the Land Act therefore violates
the Applicant’s right to equality as contemplated in section 9(1) of the
Constitution.
Property
45. The right to property is set out in section 25 of our Constitution.
22
In particular this remedy entails paying the amount outstanding on the purchase price or
administration and other costs. If the Trustee refuses transfer, the purchaser has the further
remedy of approaching the Master as contemplated in section 22 of the Alienation of Land Act.
17
46. This right must also be interpreted with due regard to the broad context
of South African history, which includes the gross inequality in relation
to wealth and land distribution in this country. 23
47. Section 25(1) states that no one may be deprived of property except in
terms of a law of general application and no law may permit arbitrary
deprivation of property.
48. The Constitutional Court in the First Certification Case24 remarked that
the right to hold property is implicit in section 25(1).
49. Section 25(5) states that the State must take reasonable legislative and
other measures within its available resources to foster conditions which
enable citizens to gain access to land on an equitable basis.
50. In First National Bank of South Africa Ltd t/a Wesbank v Commissioner,
South African Revenue Service25 (“FNB”) the Constitutional Court
declined to define property comprehensively for purposes of section 25;
stating that, at this stage of the development of South African
constitutional jurisprudence, it would be practically impossible and 23
Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC). (“Agri SA”) 24
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of
the Republic of South Africa 1996 (4) SA 744 (CC) par [72]. 25
2002 (4) SA 768 (CC) par [54].
18
judicially unwise to prescribe a numerus clausus of the kinds of property
relations that would or should be protected constitutionally.
51. Woolman et al in Constitutional Law of South Africa states
“Although the decision in FNB was silent on this issue, there can be little doubt that, in addition to ownership, all of the limited real rights recognised at common law (lease, mortgage, pledge, servitude and lien) should enjoy protection under the property clause, together with limited real rights recognised by statute, such as mineral rights.” 26
52. Section 25 does not refer to “rights, real rights or ownership”27, but to
the term “property”.
53. The Bill of Rights Handbook28 states that property has such a wide
variety of meanings that it is almost impossible to accurately or
exhaustively define it, but nevertheless identify at least three possible
meanings of property in section 25:
26
S. WOOLMAN et al: Constitutional Law of South Africa, 2nd Edition OS 12-03, ch46-p13
electronically accessed on 17 February 2014. 27
FNB par 53-54 28
Currie & De Waal: Bill of Rights Handboek 6th
Edition page 535, electronically accessed on 3
October 2014.
19
53.1. Firstly the clause could refer to property itself, to those things with
which legal relations between people exist;
53.2. Secondly it could refer to the set of legal rules governing the
relationship between individuals and property, such as the
common law terms to property rights;
53.3. Thirdly the term could refer to any relationship or interest having an
exchange value. But as in Agri SA29 this Court ruled that “value” is
not necessary for ascertaining a right under section 25.
54. It is submitted that the said second meaning of property is relevant to
the Applicant’s case. The protection of the right to property should be
interpreted as the individuals’ rights to acquire, hold and dispose of
property in particular circumstances. The common law rule, as it stands,
is the cause of her hardship and her constitutional complaint.
55. The Applicant will submit that property, in the context of her case, can
refer to her current possession of the immovable property and/or the
rights which she obtained in terms of the sale agreement.
56. In terms of South African law, registration of the property must take
place prior to ownership passing. The deprivation of the Applicant’s
29
Paragraph 42 thereof.
20
property must therefore be measured against the current ownership of
the insolvent. In the Agri SA matter,30 this Court has stated that there is
an obligation imposed by section 25 not to over-emphasise private
property rights at the expense of the state’s social responsibilities.
57. This Court’s stated in the FNB matter31 that:
“the protection of property as an individual right is not absolute but subject to societal considerations. The preamble to the Constitution indicates that one of the purposes of its adoption was to establish a society based, not only on ‘democratic values’ and ‘fundamental human rights’, but also on ‘social justice’. Moreover the Bill of Rights places positive obligations on the State in regard to various social and economic rights. Van der Walt (1997) aptly explains the tensions that exist within section 25: ‘[T]he meaning of section 25 has to be determined, in each specific case, within an interpretative framework that takes due cognisance of the inevitable tensions which characterise the operation of the property clause. This tension between individual rights and social responsibilities has to be the guiding principle in terms of which the section is analysed, interpreted and applied in every individual case.’ The purpose of section 25 has to be seen both as protecting existing private property rights as well as serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as striking a proportionate balance between these two functions. (Footnotes omitted)”
58. It is necessary not to give a too narrow or too wide meaning to
acquisition of property.
30
At paragraph [62]. 31
At paragraphs [49] - [50] thereof.
21
“A proper meaning to give to the notion of acquisition should pose no threat to the possibility of maintaining a sensitive balance between existing private property rights and the pursuit of transformation that section 25 was designed to facilitate.” 32
59. The concept of acquisition of property must be developed on a case to
case basis.33
60. The Applicant suggests that the concept of property under our
Constitution be developed to mean the insolvent’s obligation to allow
transfer of the immovable property which obligation the Trustee has
now taken over.
61. In coming to this conclusion, the Applicant submits that this Court will
give consideration to the following:
61.1. At the time of the insolvent’s sequestration, both she and the
insolvent had already performed under the contract in that the
purchase price was fully paid and the insolvent had given her
possession of the property;
32
Agri SA par 63. 33
Agri SA par 64.
22
61.2. She therefore had a vested right to obtain transfer and the Trustee
had acknowledged this right by appointing attorneys on her behalf
and signing the necessary documents;
61.3. In awaiting transfer she had acquired vacuo possession of the
immovable property which she was entitled to defend against the
world at large;
61.4. Had the insolvent, prior to his sequestration made an about turn on
his contractual obligation to pass transfer, the Applicant would
have merely approached a court to force him to do so, or to allow
the Sheriff of the Court to sign the necessary documents on his
behalf;
61.5. Consequently the common law rule, giving the Trustee sole
discretion to decide whether to honour the contract or not, works
against the rules of natural justice in casu, as the obligation to pass
transfer must have befallen the insolvent’s Trustee as an obligation
that the debtor’s estate must fulfil. This is not a claim sounding in
money against the estate, but to fulfil a specific obligation;
23
61.6. The common law rule as set out above, subjects the Applicant to
the untenable situation that she retrospectively lost her right to
force specific performance in this situation. Deprivation within the
context of section 25 includes extinguishing a right previously
enjoyed,34 or one which was significantly interfered with;35
61.7. The untold hardship that the Applicant will suffer if the common law
rule is allowed to remain part of our law;
61.8. The estate’s obligation to allow ownership to pass to the Applicant
seen against our social and historic context and the boni mores of
our society.
62. The Applicant is in possession of the immovable property and in
possession of the vested right to demand transfer. The common law
rule, which is of general application, will cause permanent deprivation of
her property. Section 36 of the Constitution states that this limitation
must be reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all
relevant factors, including:
34
FNB par 57. 35
Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC,
Local Government and Housing, Gauteng, and Others (Kwazulu-Natal Law Society and
Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) at para [32].
24
62.1. The nature of the right;
62.2. The importance of the purpose of the limitation;
62.3. The nature and extent of the limitation;
62.4. The relationship between the limitation and its purpose;
62.5. Less restrictive means to achieve the purpose.
63. As set out above, the common law as it stands, read with the Land Act,
cannot be reasonable or justifiable in an open and democratic society. It
offends against the right to equality and there is no rational purpose for
allowing a purchaser who has made a part payment towards the
purchase of immovable property rights, but not extending this allowance
to a person who has paid the full purchase price in the course of a
regular transaction.
64. Therefore the law as it currently stands infringes on the Applicant’s right
to property as she has fully paid the purchase price of the property,
complied with all other statutory obligations in order to obtain transfer,
yet is prohibited from acquiring registration thereof in her name at the
whim of a Trustee, irrespective of the fairness of his actions.
25
Fair administrative action
65. It should be found that the law as it currently stands, infringes on the
Applicant’s right to fair administrative action, as the Applicant was at the
whim of the Respondent, who, if he had acted fairly, would have
allowed transfer to take place.
66. The submissions under the infringement to the Applicant’s right to
property must be considered under the infringement of her right to just
administrative action, as it is submitted that there is an overlap between
these two rights in the context of this matter.
67. The starting point for the enquiry whether the common law, as it stands,
infringes on the Applicant’s right to fair administrative action, is to have
regard to the role of the Trustee where a person is sequestrated.
68. If the insolvent purchases immovable property which is not registered at
the time of his insolvency, the common law and the Insolvency Act 24
26
of 1936 (“Insolvency Act”) then deals with the legal requirements for the
further handling of the matter.36
69. As set out above where the insolvent, prior to his sequestration, enters
into a contract to sell immovable property, that property - if not
registered in the name of the purchaser at the time of his sequestration
- still falls in the insolvent estate, and the Trustee can decide to abide
by the contract or terminate it, after taking the opinion of the body of
creditors in consideration.37
36
Section 35 Uncompleted acquisition of immovable property before sequestration
If an insolvent, before the sequestration of his estate, entered into a contract for the acquisition of
immovable property which was not transferred to him, the trustee of his insolvent estate may
enforce or abandon the contract. The other party to the contract may call upon the trustee by
notice in writing to elect whether he will enforce or abandon the contract, and if the trustee has
after the expiration of six weeks as from the receipt of the notice, failed to make his election as
aforesaid and inform the other party thereof, the other party may apply to the court by motion for
cancellation of the contract and for an order directing the trustee to restore to the applicant the
possession of any immovable property under the control of the trustee, of which the insolvent or
the trustee gained possession or control by virtue of the contract, and the court may make such
order on the application as it thinks fit: Provided that this section shall not affect any right which
the other party may have to establish against the insolvent estate, a non-preferent claim for
compensation for any loss suffered by him as a result of the non-fulfilment of the contract.
37 in Uys and Another v. Sam Friedman, Ltd., 1934 O.P.D. 80 at p. 86, states as follows:
“Ek is van mening dat in alle gevalle van onvoltooide kontrakte aangegaan deur ’n insolvent
voor sy sekwestrasie, die curator (uitgesonderd in die gevalle, waarvoor spesiaal voorsiening
gemaak word deur die Wet) die reg het gewoonlik na raadpleging of op las van die krediteure,
om te beslis of hy sal aanbied om die verpligtings deur die insolvent aangegaan na te kom of nie,
maar dat hy dit betyds moet doen en dat, as hy eenmaal sy besluit geneem het, dan is die boedel
daardeur gebonde.”
27
70. The Trustee is a creature of the Insolvency Act and his powers and
duties are derived therefrom.38
71. In Consolidated Agencies v. Agjee 1948 (4) S.A. 179 (N) at p. 189
Judge Silke stated as follows:
“It is clear, I think, that, thus, a trustee in insolvency does not stand for all purposes of contract in the shoes of the debtor or insolvent whose estate he administers, and that he is not bound specifically to perform, or to perform in full, executory contracts made by the debtor before insolvency, if his doing so would operate to the prejudice of the other creditors by giving one creditor an improper preference over the other or others.”
72. The Trustee occupies a position of trust vis-à-vis the body of creditors
and the insolvent. 39
38
LAWSA Volume 11 paragraph 197. 39
The property would vest initially in the Master and thereafter, if and when appointed, in the
Trustee who would administer same under the provisions of the Act. The Trustee is under a duty
to sell all the property of the estate in such manner and upon such conditions as the creditors
may direct. Du Plessis and another NNO v Rolfes Ltd 1997 (2) 354 AD at 363E “At common law
a liquidator or trustee is not bound to perform unexecuted contracts entered into by an insolvent
before insolvency unless he, in conjunction with the general body of creditors, considers that
such performance will be in their interests ... If a trustee elects to abide by an executory contract
he must of course perform all the obligations of the insolvent. He must also give reasonable
notice of his intention to continue with the contract ...” and at 364A.“It follows that if a trustee
elects to continue with the contract after liquidation this is an act of administration and the
payments which he has to make under the contract are expenses of administration. Such
expenses, taken in conjunction with the value of the performance of the other party, may swell or
diminish the free residue available to the general body of creditors. This is of course a factor.”
28
73. Some judgments and text books refer to the Trustee as an officer of the
Court, but in Gilbert v Bekker and another [1984] 4 ALL SA 279 (W), the
Court held that this is as result of the law in England which is not
applicable in South Africa. It nevertheless held that a Trustee should
conduct himself as “an officer and a gentlemen” should.
74. At the very least it can be said that a Trustee is exercising a public
power or performing a public function in terms of any legislation and as
such, his decisions would be subjected to the Promotion of Just
Administrative Act 3 of 2000. But if the common law remains as is, the
Trustee will merely state that he is applying the law, without having to
properly apply his discretion in fairness to all.
75. Although a Trustee does not replace the insolvent and he is obliged to
act in the best interest of the body of creditors, it does not mean he may
act in such a way that the creditors are unfairly benefitted vis-à-vis an
innocent third party.
76. For all intends and purposes in this matter both the Applicant and the
insolvent had fully preformed in terms of their contract prior to his
insolvency. The only issue outstanding was registration of the property
29
in the name of the Applicant, which would have taken place by merely
lodging the correct papers at the Deeds Office.
77. Had the common law not been what it was, the Applicant would have
had the right to have the Trustees decision reviewed, as it was neither
fair nor rational.
Housing/Dignity
78. The Honourable Court should have found that the law as it currently
stands infringes on the Applicant’s right to dignity and housing as, if she
cannot take transfer, she will be evicted from the property which, in her
current position of being unemployed and destitute, will render her
homeless.
WHETHER THE LAND ACT IS UNCONSTITUTIONAL
79. In terms of the directives of the Honourable Chief Justice, written
argument should include whether certain sections of the Land Act may
be constitutionally invalid.
30
80. Although Chapter Two of the Land Act is in conflict with the National
Credit Act 34 of 2005, the conflict is managed by section 172, read with
schedule 1 of the National Credit Act. Chapter 2 of the Land Act should
be brought in line with the National Credit Act.
81. Sections 21 and 22 of the Land Act, on which the Applicant’s erstwhile
legal representative relied, falls in Chapter 2, but is not applicable to the
contract between the Applicant and the insolvent.
82. It is submitted that in so far as the Land Act fails to cater for the
situation wherein the Applicant finds herself, the Land Act is
unconstitutional. It would be necessary to read in new provisions into
the Land Act.
83. Interference with the legislation must however be kept to a minimum.40
In the first certification case this Court cautioned against `judicial
activism’ and usurping the function of the legislature.41 In S v Baloyi
(Minister of Justice Intervening)42 Justice Sachs cautioned against
undue judicial activism stating:
40
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) at [74] 41
Certification of the Constitution of the Republic of South Africa 1996, In re:
Ex parte Chairperson of the Constitutional Assembly 1996 (4) SA 744 (CC) [27]. The court
cautioned that `the court has a judicial and not a political mandate’. 42
2000 (2) SA 425 (CC).
31
“Provided it remains within constitutionally appropriate limits, the Legislature must enjoy a reasonable degree of latitude or margin of appreciation in choosing appropriate solutions to a grave social ill…”
84. As the major engine for law reform should be the Legislature and not
judiciary,43 it is submitted that the Court should not read the provision
into the Land Act, but rather give the Legislature the opportunity to cure
the defect.
85. The Applicant therefore submit that, although the Land Act as it stands
lacks provisions which makes it unconstitutional, this Court should allow
the legislature an opportunity to correct this.
WHETHER IT IS IN THE INTEREST OF JUSTICE TO GRANT LEAVE TO APPEAL 86. It is submitted that it is in the interests of justice to grant the Applicant
leave to appeal to this Court.
87. This application raises a constitutional matter, namely that the common
law position that property regularly sold to a purchaser prior to the
insolvency of the seller falls into the insolvent estate when the seller is
43
Carmichelle v Minister of Safety & Security (Centre for Applied Legal Studies Intervening)
2001 (4) SA 938 (CC) [36].
32
subsequently declared insolvent, with no remedies available to the
purchaser who has already paid the full purchase price of the property,
is constitutionally invalid as it infringes on the Applicant’s constitutional
right to equality, dignity, housing, property and/or just administrative
action.
88. The Applicant raises an important question given the vulnerability of the
Applicant and persons similarly situated, and given the historical
background to the social economic situation in South Africa.
89. This Honourable Court has never heard a similar application.
90. The Applicant has reasonable prospects of success in the main
application as the High Court did not act in terms of section 39(2) of our
Constitution when it ought to have done so.
CONSTITUTIONAL ISSUE RAISED IN LEAVE TO APPEAL APPLICATION: 91. The parties were invited to present argument on whether the High Court
erred in not permitting the Applicant to raise constitutional issues.
33
92. It is clear that the real issue between the parties is that the Applicant
wanted transfer of the property after having paid the full purchase price
and the First Respondent, relying on the common law, refused to allow
such transfer.
93. It is common cause that the Applicant’s “legal basis”, as set out in her
affidavit for seeking transfer of the property in terms of the Land Act, is
bad in law.
94. Affidavits in motion applications need not contain submissions of law,
but if they do, the relevant party is not bound thereby as this may lead
to an untenable situation where the Court may be bound by a legal
error of a party and a party may advance any legal argument which the
facts permit. 44
95. It is submitted that, if it was already apparent to the High Court at the
argument stage, that another legal basis for the relief sought (such as
the development of the common law), was available, the High Court
should then have raised this issue at the time of hearing the application.
44 Van Rensburg v Van Rensburg en andere 1963 (1) 505 at 510. See also Harms: Civil
Procedure in the Superior Courts at par B6.27.
34
96. Justice Ngcobo in CUSA v Tao Ying Metal Industries 2009 (2) SA 204
(CC) at [68] found:
“Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law.”
97. On seeking leave to appeal the Applicant based her request for the
relief sought on another legal basis. The factual basis for the relief
sought remained the same though and there is no factual dispute
whatsoever.
98. In Quartermark Investments (Pty) Ltd v Mkhwanazi and another
[2014] 1 All SA 22 (SCA) at [20] the Court deals with the law
applicable in respect of a new legal basis for relief sought on appeal by
stating:
“In considering the role of the court, it is appropriate to have regard to the well-known dictum of Curlewis JA in R v Hepworth to the effect that a criminal trial is not a game and a judge’s position is not merely that of an umpire to ensure that the rules of the game are observed by both sides, but a ‘judge is an administrator of justice’ who has to see that justice is done. While these remarks were made in the context of a criminal trial they are equally applicable in civil
35
proceedings and in my view, accord with the principle of legality. The essential function of an appeal court is to determine whether the court below came to a correct conclusion. For this reason the raising of a new point of law on appeal is not precluded, provided the point is covered by the pleadings and its consideration on appeal involves no unfairness to the party against whom it is directed. In fact, in such a situation the appeal court is bound to deal with it as to ignore it may ‘amount to the confirmation by it of a decision clearly wrong’, and not performing its essential function.” (footnotes omitted)
99. In terms of section 39(2)45 of the Constitution, the High Court was
obliged to interpret the law through the prism of the Bill of Rights.46
100. In South African Police Service v Solidarity obo Barnard [2014]
ZACC 23 at [212] Justice Van der Westhuizen found that allowing a
party to raise a new cause of action on appeal is a matter of discretion.
The court of appeal may exercise its discretion to permit a party to do
so if it is not unfair to the other parties. Permission will ordinarily be
granted where the cause of action was foreshadowed by the pleadings
and established by facts on record.
101. In Barkhuizen v Napier 2007 (5) SA 323 (CC) at [39] this Court found:
45
“When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” 46
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others 2000 (10) BCLR 1079 (CC) at [21].
36
The mere fact that a point of law is raised for the first time on appeal is not in itself sufficient reason for refusing to consider it. If the point is covered by the pleadings, and if its consideration on appeal involves no unfairness to the other party against whom it is directed, this Court may in the exercise of its discretion consider the point. Unfairness may arise where, for example, a party would not have agreed on material facts, or on only those facts stated in the agreed statement of facts had the party been aware that there were other legal issues involved. It would similarly be unfair to the other party if the law point and all its ramifications were not canvassed and investigated at trial. (Footnotes omitted.)”
102. But for the common law, it is just and equitable for registration in the
name of the Applicant to take place, as the parties are in agreement
that the property was bought and paid for long before the sequestration
of the insolvent in a regular transaction.
103. The raising of the constitutional argument was available to the
Applicant at the hearing of the application before the High Court, as
there could have been no prejudice for the First Respondent in raising
it.
104. Therefore, at the very least at the time when the constitutional option
was raised before the High Court, the High Court should have
considered the reasonable possibility that another Court might come to
another conclusion on the relief sought, and should have allowed the
Applicant to raise this point.
37
105. The High Court, with respect, employed the wrong test in deciding
whether to allow the constitutional point, in that the High Court equated
the “appeal court” with the Constitutional Court. In so doing the
Honourable Judge referred to paragraph [52] of Everfresh Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC),
but neglected to distinguish the facts in Everfresh from this matter, in
that unlike this Applicant, Everfresh did not raise the point in its Leave
to Appeal application nor in its petition to the SCA. The learned Judge
also neglected to refer to the principles set out in paragraph [27]47 and
paragraph [63]48 of the Everfresh matter.
106. The High Court in referring to paragraph [22] of the judgment of
Prince v President, Cape Law Society, and others 2001 (2) SA 388
(CC) erred by not considering the effect of paragraph [23]49 thereof
47
“[37] The mere fact that the constitutional dimensions of the development point were not
raised in the High Court or Supreme Court of Appeal is no bar to considering the legal point on
appeal to this Court, provided that the pleaded and established facts allow this without prejudice
to the opposing parties. The crucial question is thus whether it will be unfair to determine the
issue in this Court on the facts pleaded and accepted in the High Court. In my view there is no
possible prejudice here.” 48
“[63] Everfresh has not only altered its defences as it went along, but has also failed to raise
any of the constitutional points in the High Court and Supreme Court of Appeal. This Court has
often warned that while there may be cases where the interests of justice require that a
constitutional complaint be raised for the first time before this Court, these would be rare and
exceptional. In Lane and Fey NNO, this Court set out the proper approach in the following
terms: “Where the development of the common law is the issue, the views and approach of the
ordinary courts, and particularly the SCA, are of particular significance and value. Save in
special circumstances, this Court should not consider this kind of matter as a Court of first
instance. No relevant factors have been raised by the applicants that would constitute such
special circumstances.” (Footnote omitted.)
49 “[23] That said, the considerations applicable to allowing further evidence on appeal in
constitutional matters are not necessarily the same as the considerations applicable in other
matters. It is undesirable to attempt to lay down precise rules when leave to adduce further
evidence on appeal will be granted by this Court. For the purposes of the present case, the
relevant factors, which I consider more fully below, are: the validity of Acts of Parliament that
serve an important public interest is in issue; the constitutional right asserted is of fundamental
importance and it goes beyond the narrow interest of the appellant; the validity of the impugned
provisions has been fully canvassed by a full bench of the High Court and that of five judges of
the SCA; the course which the litigation took in the High Court and the SCA; and the appellant
38
together with the order of granting that Applicant leave to file further
affidavits and thereafter to hear that matter.
107. Therefore it is submitted, that the High Court erred in not allowing the
Applicant to raise the constitutional issues, particularly as:
107.1. The High Court ought to have investigated the question whether
the common law was to be developed in accordance with the
spirit, purport and objects of the Constitution;
107.2. The constitutional argument raised sought the same relief, merely
on a different legal basis, based on the facts already before Court;
107.3. The common law position as it stands needs to be examined in
the light of other poor and uneducated people who find
themselves in the same position as the Applicant;
107.4. The realisation of the constitutional right is of utmost importance
for the Applicant and others similarly situated;
107.5. The Applicant is a poor and vulnerable woman who will be left
destitute should she lose possession of her home;
107.6. Had the High Court granted leave to Appeal as requested to the
Full Bench of the Eastern Cape, these issues could have been
fully canvassed.
is a person of limited resources. These factors, moreover, must be viewed against the power of
this Court to grant direct access.”
39
PRESCRIPTION:
108. The First Respondent alleges in his opposing papers to this
Application for Leave to Appeal to this Honourable Court that the
Applicants claim has prescribed as it is more than three years between
the debt arising and the launching of this Application.50
109. In his answering affidavit in the application before the High Court the
First Respondent states that the Applicant was in unlawful occupation
since January 2007.51 The First Respondent also states that there were
settlement negotiations between him and Applicant, which proved to be
unsuccessful, causing him on 28 July 2011 to demand that the
Applicant vacate the property.52 The High Court Application was filed a
few months later on 9 March 2011, definitely less than 3 years after the
failed negotiations and the request to vacate.
110. The First Respondent unfortunately neglects to state what “the debt”
is which allegedly arose, why the applicable prescription period is three
years and how the three years were to be calculated.
50
Paragraph 27.3 of Respondent’s answering affidavit. 51
Application page 96 paragraph 19. 52
Application page 91 paragraph 4.14.
40
111. The Applicant denies that the Prescription Act 68 of 1969
(“Prescription Act”) is applicable, by virtue of the fact that there is no
“debt that arose”.
112. The Supreme Court of Appeal53 found, in a matter where the
purchase price was still to be paid, that a defence of prescription, if it
was applicable to transfer of property,54 could not succeed in the
following circumstances where:
112.1. The continued existence and enforceability of the agreement were
not in issue;55
112.2. The right to occupation was immediately given upon the
contracting;56
112.3. The right to claim transfer would only arrive once the full purchase
price was paid;57
112.4. The purchaser was given undisturbed possession until eviction
proceedings many years later;58
53
Fegen v Mphakathi (348/2012) [2013] ZASCA 100 (9 September 2013). 54
Par [24] of the judgment “(if it were held to apply)” 55
Par [20] of the judgment 56
Par [24] of the judgment. 57
Par [24] of the judgment. 58
Par [24] of the judgment.
41
112.5. The purchaser were never put on notice to comply with any
contractual term.59
113. The First Respondent’s reliance on the Desai60 matter is criticised as
that Court did not unequivocally hold that transfer of property is always
a debt as envisaged in the Prescription Act. It could rather be said that
the Court found that the contractual obligation after dissolution of the
partnership to “procure registration of transfer” was the debt.
114. There is no firm decision that prescription is applicable where
registration is delayed in matters where a purchase price is paid in full
and vacant possession given to a purchaser.
115. The Applicant therefor contends that the Prescription Act is not
applicable in the circumstances of this case, alternatively that
prescription has not taken place as:
115.1. The Applicant has paid the purchase price in full;
115.2. The insolvent had given vacant possession to the Applicant;
59
Par [27] of the judgment. 60
Desai NO v Desai 1996(1) SA 141 (A).
42
115.3. All risk in the property was allocated to the Applicant;
115.4. The insolvent instructed Friedman, Scheckter attorneys as his
agent to transfer the property to the Applicant;
115.5. The Applicant paid the transfer costs and the outstanding monies
for a rates clearance certificate;
115.6. Both parties complied fully with all the terms and conditions in the
contract and the Insolvent, through his attorneys, was about to
give transfer when his estate was sequestrated;
115.7. Transfer did however not take place, because the Municipality
allocated the moneys paid for rates and taxes to the wrong
account.
116. It was never in the contemplation of the parties that the property will
revert back to the insolvent under any circumstances and as such there
was no prescription involved, alternatively if this Court finds that the
Prescription Act is applicable, which is denied, then the Applicant
43
submits that prescription was delayed as contemplated in section
13(2)61, read with section 13(1)(g)62 of the Prescription Act.
RELIEF SOUGHT:
117. That the Applicant be granted Leave to Appeal to the Constitutional
Court.
118. That the Applicant be granted leave to appeal against the order of
Goosen J, under (PE) case no 819/2012 on 7 February 2013,
dismissing the Applicant’s Application to have the property wherein she
resides, registered in her name.
119. That this Honourable Court declare the common law position that
immovable property regularly purchased, and the purchase price having
been fully paid prior to the insolvency of the seller, falls into the
insolvent estate with no recourse to obtain registration into the name of
the buyer, as unconstitutional.
61
Section 13(2) A debt which arises from a contract and which would, but for the provisions
of this subsection, become prescribed before a reciprocal debt which arises from the same
contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes
prescribed. 62
Section13 Completion of prescription delayed in certain circumstances
(1) If- (a)-(f)….. (g) the debt is the object of a claim filed against the estate of a debtor who is
deceased or against the insolvent estate of the debtor or against a company in liquidation or
against an applicant under the Agricultural Credit Act, 1966; or (h)…., or (i)….
44
120. That the Applicant is entitled to registration of the property in her
name once all the legal requirements set by the Registrar of Deeds
have been met.
121. Alternatively to the three preceding paragraphs, that the
Applicant be granted leave to appeal to the Full Court of the Eastern
Cape Division against the order of Goosen J, under (PE) case no
819/2012 on 7 February 2013, dismissing the Applicant’s Application to
have the property wherein she resides, registered in her name.
122. That the First Respondent pays the Applicant’s costs in this
Application.
DATED AT PORT ELIZABETH THIS 8TH OCTOBER 2014.
________________________ Adv. Lilla Crouse
Counsel for Applicant
Tel: 041- 4082800
Fax:041- 4873335
Cell: 0829550794
E-mail: LillaC@legal-aid.co.za
LEGAL AID SOUTH AFRICA
45
ATTORNEY FOR APPLICANTS
PORT ELIZABETH JUSTICE CENTRE
C/o PHYSICAL ADDRESS: IMPACT LITIGATION (MR MAYET) 29 DE BEER STREET BRAAMFONTEIN POSTAL ADDRESS PO BOX 27989 GREENACRES PORT ELIZABETH 6057 TEL: 041-4082800 FAX:041- 4873335 CELL: 082 576 0270 E-mail:rocheVA@legal-aid.co.za
achmedm@legal-aid.co.za (ref: Impact Litigation/ A. Mayet/ PEJC/Roche v A/LC)
TABLE OF AUTHORITY TOGETHER WITH PLACE OF CITATION IN WRITTEN ARGUMENT ABOVE
LEGISLATION:
1. Alienation of Land Act 68 of 1981 (numerous paragraphs)
2. The Constitution of the Republic of South Africa, 1996.
3. Insolvency Act 24 of 1936 (paragraph 68 and 70)
4. Local Government: Municipal Systems Act 32 of 2000 (footnote 10)
5. National Credit Act 34 of 2005 (paragraph 80)
6. Prescription Act 68 of 1969 (paragraphs 111, 113-5)
7. Sale of Land on Instalments Act 72 of 1971 (paragraph 18
8. Sale of Land on Instalments Amendment Act 49 of 1975 (footnote 17)
COURT CASES:
46
1. Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC)
(footnote 23)
2. Barkhuizen v Napier 2007 (5) SA 323 (CC) (paragraph 101)
3. Brink v Kitshoff NO 1996 (4) SA 197 (CC) (paragraph 33)
4. Carmichelle v Minister of Safety & Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) (footnote 43)
5. Consolidated Agencies v. Agjee 1948 (4) S.A. 179 (N) (paragraph 71)
6. Court cases:
7. CUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) (paragraph
96)
8. Desai NO v Desai 1996(1) SA 141 (A) (paragraph 113)
9. Du Plessis and another NNO v Rolfes Ltd 1997 (2) 354 AD (footnote
39)
10. Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
2012 (1) SA 256 (CC) (paragraph 105)
11. Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa 1996 4
SA 744 (CC) (footnotes 24, 41)
12. Fegen v Mphakathi (348/2012) [2013] ZASCA 100 (9 September
2013) (footnote 53)
13. First National Bank of South Africa Ltd t/a Wesbank v Commissioner,
South African Revenue Service 2002 4 SA 768 (CC) (numerous)
14. Gilbert v Bekker and another [1984] 4 ALL SA 279 (W) (paragraph
73)
15. Glen Anil Finance (PTY) LTD v Joint Liquidators, Glen Anil
Development Corporation LTD (In Liquidation) 1981 (1) SA 171 (A)
(footnote 18)
16. Harris v Trustee of Buissine (1828-1824) 2 Menz 113 (paragraph 15)
17. Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re: Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (10)
BCLR 1079 (CC) (footnote 46)
18. Mkontwana v Nelson Mandela Metropolitan Municipality and Another;
Bissett and Others v Buffalo City Municipality and Others; Transfer
Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (Kwazulu-Natal Law Society and
47
Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC)
(footnote 35)
19. National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs 2000 (2) SA 1 (CC) (footnote 40)
20. Prince v President, Cape Law Society, and others 2001 (2) SA 388
(CC) (paragraph 106)
21. Quartermark Investments (Pty) Ltd v Mkhwanazi and another [2014]
1 All SA 22 (SCA) (paragraph 98)
22. S v Baloyi (Minister of Justice Intervening) 2000 (2) SA 425
(CC)(paragraph 83)
23. South African Police Service v Solidarity obo Barnard [2014] ZACC
23 (paragraph 100)
24. Thebus and Another v S 2003 (10) BCLR 1100 (CC) (footnote 19)
25. Trustee of Insolvent Estate of Mccall v G.H. Hulett (1901) 22 NLR
215.(footnote 15)
26. Trustee of Webster v Weakley (1860) 3 Searle 373 (footnote 14)
27. Uys and Another v. Sam Friedman, Ltd., 1934 O.P.D. 80 (footnote
36)
28. Van Aardt v Hartley’s Trustees (1845) 2 Menz 143 (footnote 14)
29. Van Rensburg v Van Rensburg en andere 1963 (1) 505 (footnote
44)Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards
Incorporated 1998 (4) SA 1182 (SCA) (paragraph 17)
TEXT BOOKS: 1. Currie & De Waal: Bill of Rights Handboek 6th Edition (paragraph 53) 2. Harms: Civil Procedure in the Superior Courts (footnote 44) 3. LAWSA Volume 11 (footnote 38) 4. Seekings and Nattrass Class, Race and Inequality in South Africa
(2006) (paragraph 35) 5. Woolman et al Constitutional Law of South Africa 2nd Edition OS 12-03
(paragraph 51)
Article: