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;

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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).

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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;

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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

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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.

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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].

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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:

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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].

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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;

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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.

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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:

48

Lilian Chenwi and Kirsty McLean: 'A woman's home is her castle?' – Poor women and housing inadequacy in South Africa. 2009 SAJHR 517 (footnote 20)