Constitutional Court to hear porperty transfer case

Picture: Thinkstock

Picture: Thinkstock

The Constitutional Court will on Monday hear the case of a woman who paid for an immovable property but was deprived of it because the seller subsequently became insolvent.

The woman, a Ms Sarrahwitz, paid in full for the property in Port Elizabeth before the deed of sale was concluded.

The seller became insolvent and his estate, including the property Sarrahwitz had paid for, was then sequestrated.

The contract of sale was incomplete because the property had not been transferred.

In terms of the common law, the trustee of the insolvent estate can decide whether to fulfil the contract. He refused to do so.

Sarrahwitz unsuccessfully approached the Eastern Cape High Court, then applied for leave to appeal. This was turned down, as was her petition to the Supreme Court of Appeal.

In the Constitutional Court she intends to argue that the common law, read with the Alienation of Land Act, infringes her rights to equality, property, just administrative action, housing, and human dignity.

The Land Act protects purchasers who have bought land through instalment agreements from the effects of sequestration, but this does not protect those who paid the full price up front, as Sarrahwitz did.

The trade and industry minister, who administers the Land Act, broadly supports her contention that the common law read with the act is not in keeping with the Constitution.

The trustee opposes the application on behalf of the insolvent estate.


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