Sarrahwitz v Maritz NO and Another

• Jurisdiction: South Africa
• Citation: 2015 (4) SA 491 (CC)

Sarrahwitz v Maritz NO and Another
2015 (4) SA 491 (CC)

2015 (4) SA p491

Citation	2015 (4) SA 491 (CC)
Case No	CT 93/14; [2015] ZACC 14
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Tshiqi AJ, Van Der Westhuizen J and Zondo J
Heard	November 10, 2014
Judgment	June 4, 2015
Counsel	E Crouse for the applicant.; No appearance for the first respondent.; CJ Mouton SC (with A Rawjee) for the second respondent.

Flynote : Sleutelwoorde B

Housing — Right to housing — Protection of vulnerable purchasers — Seller's supervening insolvency — Statute failing to give cash purchasers same protection (right to transfer) as instalment purchasers — Statute amended to provide equal protection to all vulnerable purchasers in event of insolvency of seller — Alienation of Land Act 68 of 1981, s 21 and s 22. C

Headnote : Kopnota

In September 2002 Mr Posthumus entered into a contract for the sale of a house to Ms Sarrahwitz. She paid cash and took occupation in October 2002. But Mr Posthumus did not transfer the house into her name, and in D April 2006 his estate was sequestrated. The first respondent, who was appointed trustee of Posthumus' insolvent estate, refused to transfer the house to Ms Sarrahwitz on the ground that it formed part of the insolvent estate.

Ms Sarrahwitz approached the High Court for an order for transfer but her application was refused on the ground that the common law and not the Act regulated the transfer of the house and that the common law supported the trustee's position. Her subsequent approaches to the full bench of the High Court and the Supreme Court of Appeal failed for the same reason. E

Ms Sarrahwitz's problem was that, as a cash buyer, she did not enjoy the protection afforded to instalment-sale buyers under s 21 and s 22 of the Alienation of Land Act 68 of 1981. The Act provides that a buyer of residential property who pays the purchase price in two or more instalments over a period of one year or longer is entitled to demand transfer if the seller F becomes insolvent. In an application for leave to appeal to the Constitutional Court Ms Sarrahwitz for the first time raised constitutional principles, arguing that the common law and the Act unconstitutionally failed to protect vulnerable cash buyers like her.

Majority judgment (per Mogoeng CJ): This case was about the protection of G the poor and vulnerable from homelessness. Given the absence of the exceptional circumstances required for the development of the common law, the court would instead approach the matter through a proper interpretation — premised on the constitutional rights to housing, dignity and equality — of s 21 and s 22 of the Alienation of Land Act. The purpose of the Act — to protect vulnerable buyers of residential property — was H beneficial, yet its failure to extend its protection to buyers other than instalment buyers impaired the abovementioned constitutional rights in an unjustified and irrational manner. Cash buyers and those who paid within a year should also be protected. Hence the appropriate remedy would be to read into the Act words that conferred a right on vulnerable buyers who paid cash or who paid in less than one year to take transfer of the property I in the event of the seller's intervening insolvency, which right would only arise if the buyer were likely to become homeless if transfer did not take place. In the event the first respondent would be ordered to transfer the house to Ms Sarrahwitz. (Paragraphs [16] – [17], [21], [27] – [29], [35], [57], [68] and [74] – [78] at 499B – E, 500D, 502E – 503F, 505E – H, 513A – B, 515I – 516B and 517E – 519D.) J

2015 (4) SA p492

A Concurring minority judgment (per Cameron J and Froneman J): The order in the main judgment would be concurred in with the reservation that it might lead to the striking-down of beneficial consumer-protection legislation because it failed to protect everyone equally. This would intrude too far into legislative territory. It was also difficult to assess the limits of vulnerability that would entitle buyers who paid the full purchase price to B the same protection as instalment buyers. The Constitution, moreover, did not protect against homelessness in absolute terms. Rather, it provided that no one could be evicted from his or her home without an order of court made in consideration of all relevant circumstances. Hence the less intrusive and more appropriate remedy in the present case would have been to protect Ms Sarrahwitz's possessory rights by refusing an eviction order. C (Paragraphs [84] – [86], [90] – [91] and [97] – [100] at 520F – 521B, 522A – E and 523G – 524C.)

Cases Considered

Annotations

Case law

Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207; [1998] ZACC 11): dictum in para [33] applied D

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in para [39] applied

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): dictum in para [54] applied

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): referred to E

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) (2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [50] applied

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others F 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): dictum in para [16] applied

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; [2008] ZACC 15): dictum in para [68] applied

Engelbrecht v Road Accident Fund and Another 2007 (6) SA 96 (CC) (2007 (5) BCLR 457; [2007] ZACC 1): dictum in para [45] applied G

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): dictum in para [52] applied

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 H 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): dictum in para [78] applied

Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen Anil Development Corporation Ltd (in Liquidation) 1981 (1) SA 171 (A): applied

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): dicta I in paras [23] and [34] applied

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): dicta in paras [50] and [53] applied

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78; [2004] ZACC 25): applied

Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 (A): J dictum at 822D – F applied

2015 (4) SA p493

Khosa and Others v Minister of Social Development and Others; A Mahlaule and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC) (2004 (6) BCLR 569; [2004] ZACC 11): dicta in paras [40] and [95] applied

Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) (2001 (4) BCLR 312; [2001] ZACC 14): dictum in para [5] applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another B 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): dictum in para [45] applied

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) (2005 (2) BCLR 129; [2004] ZACC 8): referred to

Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) (2012 (5) BCLR 449; [2012] ZACC 2): dictum in para [109] C applied

Merry Hill (Pty) Ltd v Engelbrecht 2008 (2) SA 544 (SCA) ([2007] ZASCA 60): applied

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14): dictum in D para [705] applied

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): dictum in para [46] applied

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); E Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355; [2005] ZACC 19): dictum in para [162] applied

Minister of Justice and Constitutional Development v Mathobela and Others [2007] ZANWHC 5: referred to

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880; [1998] ZACC 10): F dictum in para [41] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): applied

Ngewu and Another v Post Office Retirement Fund and Others 2013 (4) BCLR 421 (CC) ([2013] ZACC 4): dictum in para [17] applied G

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268; [2004] ZACC 7): referred to

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759; [1997] ZACC 5): dictum in paras [24] – [28 applied

Quartermark Investments (Pty) Ltd v Mkhwanazi and Another 2014 (3) SA 96 (SCA) ([2013] ZASCA 150): dictum in para [20] applied H

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) (2009 (9) BCLR 847; [2009] ZACC 16): referred to

S v Bequinot 1997 (2) SA 887 (CC) (1997 (1) SACR 369; 1996 (12) BCLR 1588): dictum in para [15] applied I

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2)...