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[2010] ZAWCHC 212
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A.S v E.S and Others (26186/09) [2010] ZAWCHC 212 (24 August 2010)

IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 26186/09
A S
….............................................................................................................
Applicant
v
E S
…................................................................................................
First
Respondent
THE CITY OF CAPE TOWN
…...................................................
Second
Respondent
THE REGISTRAR OF DEEDS
…...................................................
.
Third
Respondent
______________________________________________________________
REASONS – 24 AUGUST 2010
______________________________________________________________
FORTUIN, J:
I
INTRODUCTION
[1] This is an application,
interdicting the City of Cape Town (the second respondent) from
passing transfer of Erf 30509, Belhar,
also known as 59 Newton
Street, Belhar, Bellville, (“the property”) solely to Ms
A S (the applicant) and Mr S (the
first respondent) in equal shares
when transfer becomes due.
[2] The applicant and the first
respondent were married in terms of Muslim rites on 23 October 1983.
On 29 July 1998, the applicant
was granted a fasaq (divorce) by the
Islamic Unity Convention. The applicant desires to transfer the house
into her name for,
inter alia
, the following reasons:
she resides at the property with four
of her children;
the first respondent no longer
resides at the property;
applicant makes payment in respect of
the property to the City of Cape Town, and maintains the property.
[3] The City of Cape Town is the
registered owner of the property. The City’s Policy determines
that it would sell a dwelling
only to:
3.1 a married male;
3.2 a single person with dependants
residing permanently with him or her; or
3.3 a married female who is the
breadwinner of her family and who has dependants residing permanently
with her.
[4] As a result of this policy,
transfer of the property will only be to the first respondent. The
first respondent did not oppose
the application and the City
indicated that it will abide by the decision of the Court.
II
THE FACTS
[5] The applicant works as a trauma
counsellor at various schools in the Western Cape. She lives at the
property at 59 Newton Street,
Belhar, together with four of her
children.
[6] The applicant and the first
respondent were married in terms of Islamic rites on 23 October 1983.
Until 1990 the applicant and
the first respondent, together with
their children, lived with friends and family, and in rental
accommodation provided by the
City.
[7] During 1989, the applicant applied
to the City for admission to its self-help scheme for a house in
Belhar. She obtained the
application form, completed it, and had it
delivered to the Council’s office in Bellville.
[8] The applicant and the first
respondent were subsequently called to the Council’s office in
Bellville where they were told
that the applicant could not apply for
the housing benefit in her own name, as she was not the ‘working
partner’ in
the relationship, and that the application had to
be made in the first respondent’s name. The official tore up
the application
form which the applicant had completed, and a new
application was then completed in the first respondent’s name.
[9] In that application, the first
respondent is reflected as the applicant. He is described as married,
and the applicant in this
matter is referred to as his wife.
[10] The applicant and the first
respondent were subsequently advised that the application had been
approved. On 8 March 1990 the
City entered into an agreement solely
with the first respondent in respect of the property. In terms of
this agreement:
10.1 the purchase price and loan are
R27
435.00, payable over 30 years;
10.2 the participation fee, water
service fee and monthly administration fee total R408.10 per month;
10.3 transfer will occur once the loan
has been paid in full or reduced by an amount not less than 10
percent and the unpaid balance
secured by means of a first mortgage
bond in favour of the City, and subject to certain additional
conditions.
[11] The parties and their children
occupied the property together from January 1991. The applicant
assisted the first respondent
with the construction of the house.
[12] From about 1992, the applicant
and the first respondent experienced problems in their marriage.
These related primarily to
his extra-marital affairs, and to his
emotional, psychological, physical and financial abuse of the
applicant.
[13] During 1997 the first respondent
left the property. On 29 June 1998, the Islamic Unity Convention
granted the applicant a
fasaq
(divorce).
[14] The first respondent returned to
the property from 2002 until 2003, when he remarried. He again
returned to the property from
2006 to 2008. He is currently living
with his daughter at her home in Manenberg.
[15] The first respondent has
repeatedly threatened to force the applicant out of the property.
There is a history of threatening
behaviour by the first respondent,
the details of which are, for the purpose of this judgment
irrelevant, save to say that these
threats made the applicant’s
tenure even more insecure.
[16] During 1997, the applicant
approached the City and asked whether she was eligible for state
assisted housing. She was informed
that her subsidy had already been
used in respect of the Belhar property.
[17] The applicant asked the City
whether she can take transfer of the property into her name. She was
informed that this can not
be done without the first respondent’s
consent. The City has not offered her any other housing assistance.
[18] The applicant has over the years
contributed to the property, both directly (by paying instalments and
service charges) and
indirectly (by paying the family’s other
monthly expenses). She has made payments on account of the arrears in
respect of
the property.
[19] The position at present is as
stated in paragraph [2], coupled with the fact that the City remains
the registered owner of
the property.
III
THE ISSUES
[20] The issues to be determined are:
20.1 is the policy of the City of Cape
Town discriminatory?
21.1.1. Is the discrimination lawful?
20.2 is the applicant entitled to the
remedy she requires, i.e. transfer the property in both her and the
first respondent’s
name?
[21] As stated in 3 above, the City’s
policy, in effect, means that a man is entitled to buy and let
property if he is married,
whilst women qualify to buy or let from
the City only if she has dependants living with her or she is married
and the breadwinner
of the family. Men do not have to comply with
these requirements.
[22] The next question to be answered
is whether this policy is discriminatory.
[23] In order to determine whether the
policy is discriminatory or not, it is necessary to deal with the law
on discrimination in
South Africa.
[24] This Court has pointed out that
“
even a cursory
perusal of our constitutional jurisprudence shows, equality is not
merely a fundamental right; it is a core value
of the Constitution.
”
1
This has been emphasised by the
Constitutional Court:
“
The
achievement of equality goes to the bedrock of our constitutional
architecture. The Constitution commands us to strive for a
society
built on democratic values of human dignity, the achievement of
equality, the advancement of human rights and freedom.
Thus the
achievement of equality is not only a guaranteed and justifiable
right on our Bill of Rights but also a core and foundational
value; a
standard which must inform all law and against which all law must be
tested for constitutional consonance”.
2
[25] Section 9 (1) of the
Constitution, Act 108 of 1996 (“the Constitution”) states
that “
everyone is equal before the law and has the right to
equal protection and benefit of the law
”.
[26] Sections 9(3), (4) and (5) state
as follows:
“
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.”
[27] The well-established test for
unfair discrimination was set out by the Constitutional Court in
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 53:
“
At
the cost of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made on
a provision
in reliance on s 8 of the interim Constitution. They are:
(a)
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to
a legitimate government purpose? If it does not then there is a
violation of s 8(1). Even if it does bear a rational connection,
it
might nevertheless amount to discrimination.
(b)
Does the differentiation amount to unfair discrimination? This
requires a two-stage analysis:
(i)
Firstly, does the differentiation amount to 'discrimination'? If it
is on a specified ground, then discrimination will have
been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether, objectively,
the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons
as human
beings or to affect them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to 'discrimination', does it amount to
'unfair discrimination'? If it has been found to have
been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established
by the
complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the complainant and others
in his or her
situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of s
8(2).
(c)
If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause (s 33 of the interim Constitution).”
[28] Although
Harksen
dealt with section 8 of the Interim
Constitution, the Constitutional Court has stated that its
jurisprudence in interpreting that
section applies equally to section
9 of the 1996 Constitution.
3
IV
APPLYING LAW TO THE
FACTS
[29] The policy and its implementation
self-evidently discriminate unfairly against women. The policy
provides that a woman qualifies
to buy or let from the City only if
she:
has dependants living with her; or
29.2 is married and is the breadwinner
of the family,
whereas men are entitled to buy and
let if they are married. Men are not required to be the breadwinner
in order to acquire ownership
of a home.
[30] It is in any event discriminatory
against women to make “breadwinner” status a requirement
for a benefit. Overwhelmingly
it is women who undertake family and
domestic responsibilities, including child care. These frequently
prevent them from taking
up paid employment, or paid employment with
the consistency and at the levels which are possible for men, who
generally do not
undertake those responsibilities.
4
Women are thus prevented from being
the “breadwinners”. It is discriminatory to disqualify
them from acquiring a benefit
as a result of that social fact and
practice.
[31] The unfair discrimination against
the applicant is illuminated and compounded by the following
considerations:
31.1 it unfairly discriminates to
limit ownership to the husband in circumstances where a housing
benefit has been jointly applied
for;
31.2 it unfairly discriminates to
limit ownership to the husband where (as in this instance) the
existence of a spouse is a prerequisite
for the granting of such a
benefit. The very basis upon which the first respondent was eligible
in terms of the Policy was that
he was married to the applicant, or
that she and their children were his “dependants”, and
that they resided permanently
with him;
31.3 the applicant is reflected on the
City’s database as a recipient of a housing benefit. This
indicates that the City regards
both the first respondent and the
applicant as recipients of that benefit. However, only the first
respondent has a right to ownership
of the house;
31.4 the applicant was instrumental in
securing the property, yet she is excluded from the right to
ownership which resulted from
those efforts;
31.5 if the property is now
transferred to the first respondent, to the exclusion of the
applicant, this will have the effect of
the applicant losing the home
in which she has lived with her family for the last 18 years, which
she was instrumental in obtaining
and maintaining, and for which she
has made payment.
[32] The Policy’s additional
“breadwinner” criterion for women bears no rational
connection to any legitimate
government objective. It serves only to
underline and accentuate existing inequality. It is in breach of
section 9(1) of the Constitution
and therefore it is discriminatory.
[33] The discrimination occurs on a
listed ground in terms of section 9(3) of the Constitution,
viz
,
gender. In terms of section 9(5) of the Constitution, such
discrimination is presumed to be unfair.
5
[34] The City is part of the state.
(Section 40(1) of the Constitution.) The state is obliged by section
7(2) of the Constitution
to “
respect, protect, promote and
fulfil
” the rights in the Bill of Rights. If the City were
to transfer the property to the first respondent, it would act
directly
in breach of sections 9(3) and 7(2) of the Constitution, by
discriminating against the applicant. It is accordingly
impermissible.
[35] Should the City pass transfer of
the property solely to the first respondent, it would violate the
applicant’s right
of access to adequate housing in section 26
of the Constitution, by:
discriminating against her by
creating an additional criterion
for her to obtain access to housing;
rendering her vulnerable to eviction
at the instance of her former
husband and thereby failing to
protect, and in fact undermining, her security of tenure, which is an
element of the right to housing.
6
[36] As I have pointed out, the City
is part of the State:
The State is under a duty, in terms
of section 26(2), to take reasonable measures to give effect to the
right to adequate housing.
To act in a discriminatory manner with
regard to access to housing is a clear contravention of the duty to
take reasonable
measures.
In terms of section 26(1), it may
not act in breach of the applicant’s right to security of
tenure, which is part of her
right of access to adequate housing.
The City would be in breach of its duties under section 26 and 7(2)
of the Constitution
if it were to transfer the property to the
first respondent.
[37] Such conduct is accordingly
impermissible.
[38] It is a settled rule of our law
that a contractual term that is contrary to public policy is
unenforceable.
7
[39] The Constitutional Court has held
definitively that for the purpose of determining whether contractual
provisions are enforceable,
the requirements of public policy are now
informed by the Constitution.
8
“
[28]
Ordinarily constitutional challenges to contractual terms will give
rise to the question of whether the disputed provision
is contrary to
public policy. Public policy represents the legal convictions of the
community; it represents those values that
are held most dear by the
society. Determining the content of public policy was once fraught
with difficulties. That is no longer
the case.
Since
the advent of our constitutional democracy, public policy is now
deeply rooted in our Constitution and the values that underlie
it
.
Indeed, the founding provisions of our Constitution make it plain:
our constitutional democracy is founded on, among other values,
the
values of human dignity, the achievement of equality and the
advancement of human rights and freedoms, and the rule of law.
And
the Bill of Rights, as the Constitution proclaims, 'is a cornerstone'
of that democracy; 'it enshrines the rights of all people
in our
country and affirms the democratic [founding] values of human
dignity, equality and freedom'.
[29]
What public policy is and whether a term in a contract is
contrary to public policy must now be determined by reference to the
values
that underlie our constitutional democracy as given expression
by the provisions of the Bill of Rights.
Thus a term in a
contract that is inimical to the values enshrined in our Constitution
is contrary to public policy and is, therefore,
unenforceable.
[Emphasis added]
[40] It can not be doubted that the
relevant provision of the agreement, giving the first respondent a
sole right to ownership of
the property, is contrary to the values
enshrined in our Constitution. It is accordingly unenforceable.
[41] The question may be raised as to
whether this principle is affected by the fact that the agreement was
entered into before
the Constitution came into effect, at a time when
public policy permitted discrimination, and there was no
constitutional right
to housing. The answer to this question is to be
found in
Minister of
Education and Another v Syfrets Trust Ltd NO and Another
2006
(4) SA 205
(C).
[42] In that case, the court had to
deal with a challenge to the validity of certain discriminatory terms
in a charitable trust
set up under a will. The will had been
executed, and the deceased had passed away, long before the advent of
the constitutional
era.
[43] The Court found that the
provisions of the trust were contrary to public policy, and therefore
unenforceable. The Court noted
that public policy is not a static
concept, but changes over time as social conditions evolve and basic
freedoms develop, and that
since the advent of the constitutional
era, public policy is rooted in our Constitution and the fundamental
values it enshrines.
9
[44] The Court pointed out that the
position in determining the validity of a testamentary trust is
analogous to the position in
the law of contract, where questions of
public policy have to be determined
with
reference to the time when the court is being asked to enforce or
give effect to the provisions of a contract or will
,
and
“
not
the time when the contract was
concluded or the will executed”.
10
(See para 26)
[45] The Court found that the
testamentary provision constituted unfair discrimination and was
therefore contrary to public policy
as reflected in the foundational
constitutional values of non-racialism, non-sexism and equality. It
was therefore unenforceable
in the constitutional era, even though
the trust had been established and in fact conducted on a continuing
basis in the pre-Constitutional
era.
[46] In my view, the facts in
casu
,
by giving transfer to the first respondent only, is similar, if not
more compelling than the facts in
Minister of Education and
Another
, supra. The City’s policy is therefore
unenforceable because it is contrary to public policy.
V REMEDY
[47] This court considered the remedy
prayed for and took the following decisions into account:
47.1
Fose v Minister of Safety and
Security
1997(3) SA 786 (CC), where Ackerman, J said the
following:
“
[A]n
appropriate remedy must mean an effective remedy, for without
effective remedies for breach, the values underlying and the
rights
entrenched in the Constitution cannot properly be upheld or
enhanced.”
47.2
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC
), where Langa DP (as he then was) said:
“…
appropriate
relief should be relief which is tailored to the needs of the
particular case
.”
[48] No application was made for the
relevant section of the City of Cape Town’s policy to be
declared unconstitutional.
[49] This court
considered whether the remedies sought by the applicant could be
considered to be “appropriate”
11
.
The relief prayed for unfortunately did not go far enough in my view,
as it did not include a prayer for transfer of the property
to be
passed to the applicant only. The relief prayed for would result in
the applicant once again relying upon the first respondent
as
co-owner of the property to consent to registration in her name only.
[50] In the light of the facts of this
particular case I am of the view that the case was presented in a
manner which requires only
the limited relief sought and I am
therefore granting the limited relief prayed for.
[51] In the circumstances, the
following order is made:
1. the second respondent is
interdicted from passing transfer of Erf 30509, Belhar, more commonly
known as 59 Newton Street, Belhar,
Bellville solely to the first
respondent;
2. the property is to be transferred
to both the applicant and the first respondent in equal shares when
transfer becomes the first
and the second respondents in respect of
the property.
No order as to costs.
______________
FORTUIN, J
1
(See
Minister of Education and Another v Syfrets Trust Ltd NO &
Another
2006 (4) SA 205
(C)).
2
See
Minister of Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) para 22.
3
See
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6
(CC) at para 15.
4
See
Bannatyne v Bannatyne
(Commission for Gender Equality, as
Amicus Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) at para
[29]
;
Fish
Hoek Primary School v GW
2010
(2) SA 141
(SCA) at para 13.
5
See
generally
Prinsloo v Van
der Linde and another
1997
(3) SA 1012
(CC) at para 28;
President
of The Republic of South Africa and Another v Hugo
1997
(4) SA 1
(CC).
6
See
Jafta v Schoeman and
others
;
Van
Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) at paras 28-29.
7
See
Napier v Barkhuizen
2006 (4) SA 1
(SCA) at para 7.
8
See
Barkhuizen v Napier
2007 (5) SA 323 (CC)
9
Ryland
v Edros
1997 (2), SA 690
(C); Minister of Education and Another v
Syfrets Trust Ltd NO and Another,
supra.
10
Compare
Magna Alloys and Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984 (4) SA
874
(AD) at 894G;
Garden Cities Incorporated Association not for
Gain v Northpine Islamic Society
1999 (2) SA 268
(C) at 271(A).
11
Pretoria
City Council v Walker,
[1998] ZACC 1
;
1998 (2) SA 363
(CC)