Sarrahwitz v Martiz N.O. and Another (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC) (4 June 2015)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 14
|

|

Sarrahwitz v Martiz N.O. and Another (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC) (4 June 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 93/14
In the matter
between:
VIRGINIA
SARRAHWITZ
Applicant
and
HERMANUS MARITZ
N.O.
First Respondent
MINISTER OF TRADE
AND
INDUSTRY
Second Respondent
Neutral citation:
Sarrahwitz v Maritz N.O. and Another
[2015]
ZACC 14
Coram:
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
Judgments:
Mogoeng CJ (majority): [1] to [78]
Cameron J and Froneman J (concurring): [79] to
[101]
Heard
on:
10 November 2014
Decided
on:
4 June 2015
Summary:
Alienation of Land Act 68 of 1981
—
sections 21
and
22
— protection afforded to purchasers under
instalment sale agreements
Constitutional
challenge — section 9(1) of the Constitution — right to
equal protection and benefit of the law
Section
26 of the Constitution — right of access to adequate housing —
negative obligation — duty not to prevent
or impair existing
access to adequate housing
ORDER
On appeal from the Eastern
Cape High Court, Port Elizabeth (Goosen J):
1.
Leave to appeal is granted.
2.
The appeal is upheld to the extent set out below.
3.
The order of the Eastern Cape High Court, Port Elizabeth, in case
number 819/2012
is set aside.
4.
The failure by the
Alienation of Land Act 68 of 1981
to provide for
the transfer of a residential property from an insolvent estate to
avoid the homelessness of a vulnerable purchaser,
who paid the full
purchase price within one year of the contract, is inconsistent with
the Constitution and invalid.
5.
From the date of this order:
(a)
The words “including residential property paid for in full
within one year of the
contract, by a vulnerable purchaser” are
to be read into the definition of “contract” at the end
of section 1(a).
(b)
The following is added to the definitions in section 1:
“‘
Vulnerable
purchaser’ means a purchaser who runs the risk of being
rendered homeless by a seller’s insolvency”.
(c)
The words “ON INSTALMENTS” in the title of Chapter II of
the
Alienation of Land Act 68 of 1981
, are severed and
section 4
reads as follows:
“
(1)
This Chapter shall not apply in respect of a contract in terms of
which the State, the Community Development
Board established by
section 2 of the Community Development Act, 1966 (Act 3 of 1966), the
National Housing Commission mentioned
in section 5 of the Housing
Act, 1966 (Act 4 of 1966), or a local authority is the seller.
(2)
Sections 21(2) and 22 shall, however, apply, with the necessary
changes, to a deed of alienation
in terms of which a vulnerable
purchaser of a residential property paid the full purchase price
within one year of the contract,
before the seller’s
insolvency.”
6.
This order will apply only to a seller’s insolvent estate that
has not
been finalised.
7.
The first respondent is directed to take all steps necessary to
effect transfer
of the residential property situated at 23 Auburn
Street, Booysens Park, Port Elizabeth to the applicant.
8.
There is no order as to costs.
JUDGMENT
MOGOENG CJ
(Moseneke DCJ, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Tshiqi
AJ, Van der Westhuizen J and Zondo J concurring):
Introduction
[1]
This case is about homelessness and
vulnerability.  One of the many painful and demeaning
experiences that the overwhelming
majority of our people had to
contend with during the apartheid era was not having a place they
could truly call home, and their
vulnerability to the system’s
ever-abiding readiness to evict arbitrarily.  Significant
progress has since been made.
Consequently, many previously
homeless people have acquired residential property and eviction may
no longer be carried out
summarily but only in terms of a court
order.
[2]
A catalyst in the liberalisation of
home-ownership has been section 26
[1]
of the Constitution which provides for access to adequate housing and
its progressive realisation.
[2]
This section is also a damper on the rampant evictions from
residential property.
[3]
In addition to the systemic
challenges alluded to above, many people were previously denied the
opportunity to own a home by the
insolvency of the seller.  It
generally extinguished their entitlement to transfer.  The
Alienation of Land Act
[3]
(Land Act) was subsequently enacted to facilitate transfer of
residential property from the estate of an insolvent seller to a

vulnerable instalment purchaser.  It however does not extend
this benefit to an equally vulnerable purchaser who bought
residential
property in terms of a cash sale agreement.  The
question is whether this is constitutionally defensible.
Inextricably
linked to that question is the probability of a
purchaser becoming homeless in the event of non transfer.
Parties
[4]
The applicant is Ms Virginia
Sarrahwitz (Ms Sarrahwitz), a poor and unemployed woman who is the
head of a household that comprises
her daughter and granddaughter.
The first respondent is Mr Hermanus Maritz (trustee).  He is
cited in his capacity as
the trustee of the insolvent estate of Mr
Reynier Posthumus (Mr Posthumus).  The second respondent is
the Minister of
Trade and Industry (Minister), cited in his capacity
as the Cabinet member responsible for the administration of the Land
Act.
The Minister was joined in these proceedings in terms of
this Court’s order.
[4]
Background
[5]
On 17 September 2002, Ms Sarrahwitz
entered into a written deed of sale with Mr Posthumus to acquire a
house situated at 23 Auburn
Street, Booysens Park, Port Elizabeth.
Prior to concluding the deed of sale, she borrowed R40 000 from
her employer
and paid it to Mr Posthumus as the full purchase price
of the house.  She took occupation of the house on
1 October 2002.
Mr Posthumus informed her that he
would arrange for the transfer of the house into her name.  He
advised her to wait for a
call from Ms Megan Fisher (Ms Fisher) of
Friedman Scheckter Attorneys who would facilitate transfer.  Ms
Sarrahwitz made numerous
fruitless enquiries to Ms Fisher about
the transfer.  By October 2003 she had still not heard from
her.  She again
made several calls to Ms Fisher and Mr Posthumus
about the status of the transfer.
[6]
Eventually she felt constrained to
approach another attorney in 2005 to enquire on her behalf from
Friedman Scheckter Attorneys
about the transfer of the property.
The feedback was that Mr Posthumus had signed all the papers,
necessary for transfer
to be effected, during September 2005.
The only outstanding item was said to be the amount of R2 778.88
which had to
be paid before the municipal rates clearance
certificate, required for transfer, could be issued in respect of the
house.
[7]
Ms Sarrahwitz paid that amount in
small but frequent instalments as and when she could until it was
fully paid within a month.
The certificate was however not
issued since the municipality credited her payments, for outstanding
rates and taxes, to one of
the municipal accounts of Mr Posthumus.
Apparently this error occurred because he owned a number of immovable
properties.
[8]
On 18 April 2006, which was about
four years after Ms Sarrahwitz had paid for and taken occupation of
the house, Mr Posthumus’
estate was sequestrated.  Mr Maritz
was appointed as trustee of that insolvent estate.  At the time
of sequestration,
the house had not been transferred to Ms
Sarrahwitz.  It therefore became part of the insolvent estate in
terms of the common
law.
Litigation history
[9]
After unsuccessful attempts to have
the trustee authorise the transfer of the house, Ms Sarrahwitz
launched an application in the
Eastern Cape High Court,
Port Elizabeth (High Court) in 2012.  She sought an order
directing the trustee to give effect
to the provisions of the deed of
sale and have the house registered in her name in terms of sections
21 and 22 of the Land Act.
The High Court held that it is the
common law and not the Land Act that regulates the transfer of that
property.  Also that,
in terms of the common law, a purchaser
who had paid the full purchase price for a residential property does
not have a right to
have it transferred to her.  The property
vests in the seller’s insolvent estate.  The Court could
not fault the
trustee’s decision not to transfer the house to
her in terms of his common law powers.  As a result it dismissed
her
application with costs.
[10]
Aggrieved by this outcome, Ms
Sarrahwitz launched an application for leave to appeal to the Full
Court, alternatively the Supreme
Court of Appeal.  She, for the
first time, relied on constitutional grounds to challenge the
validity of the relevant common
law principle.
[5]
[11]
Her failure to do so in the main
application denied the trustee the opportunity to deal with that
issue properly at that stage.
Raising that issue for the first
time when leave to appeal was sought, denied the High Court and the
Supreme Court of Appeal
the opportunity to consider the development
of the common law.  The Court held that prospects of success
were dim and leave
was refused.  Ms Sarrahwitz unsuccessfully
petitioned the Supreme Court of Appeal, hence her application to this
Court.
Prescription
[12]
The sale agreement between Ms
Sarrahwitz and Mr Posthumus was concluded about 10 years prior to the
launch of her application to
have the Court issue an order directing
the trustee to transfer the house to her.  The defence raised by
the trustee, both
in the High Court and in this Court, was that her
claim had prescribed.  The trustee has, however, since withdrawn
his opposition
to the application.  And the Minister, who is the
only remaining active respondent, does not rely on prescription as a
defence.
A question raised during the hearing is whether a
court may of its own motion raise the defence of prescription.
I think
not.
[13]
Section 17 of the Prescription
Act
[6]
provides:
“
(1)
A court shall not of its own motion take notice of prescription.
(2)
A party to litigation who invokes prescription, shall do so in the
relevant document
filed of record in the proceedings: Provided that a
court may allow prescription to be raised at any stage of the
proceedings.”
No party to this
litigation is invoking prescription in any document before us.
The affidavit in which the trustee sought
to invoke prescription
ceased to be counted among documents to be considered in these
proceedings when the trustee withdrew his
opposition.  And no
party has since raised prescription at any stage of the proceedings.
[14]
In
Mathobela
[7]
the Court held that—
“
[s]ection
17(1) forbids that a court take
mero
motu
cognizance of the fact that a
claim had prescribed.  Understandably so, because there may well
be certain facts which are
not placed before the court that may have
interrupted the running of prescription.  Prescription must be
invoked by the party
who raises it as a defence and it must be done
in the relevant document.”
[8]
[15]
The trustee’s withdrawal of
his opposition to this application means that prescription is no
longer an issue.  And since
this Court may not of its own motion
raise prescription as a possible obstacle to Ms Sarrahwitz’s
success, prescription has
ceased to be an issue that should occupy
us.
Leave
to appeal
[16]
Many South Africans, particularly
the poor, do not have easy access to home loans and are therefore
often forced to rely on credit
agreements concluded with relatives,
employers or even micro-lenders some of whom reportedly do so at
unconscionably high interest
rates.
[9]
And this matter affects the rights of vulnerable purchasers who are
exposed to the risk of losing their residential properties
and the
extremely limited resources poured out to secure them.  It is
about the need to protect the poor and vulnerable from
homelessness.
It seeks not to protect the well-resourced purchasers who have access
to enough money to pay off a property
immediately.  Homelessness
and vulnerability are therefore central to the determination of the
issues in this matter.
[17]
Several constitutional rights are
implicated.  They are the right of access to adequate housing,
the right to dignity and the
right to equality
[10]
in so far as it relates to the differential treatment of vulnerable
purchasers of residential property.  That differentiation

excludes vulnerable purchasers, like Ms Sarrahwitz, who paid the full
purchase price within a period of less than one year but
protects
equally vulnerable purchasers who paid at least two instalments over
a period of, or in excess of, one year and are nevertheless
entitled
to transfer notwithstanding the seller’s insolvency.
[18]
The essence of Ms Sarrahwitz’s
application for leave to appeal to this Court is that the common law
is constitutionally invalid
to the extent that it excludes a person
in her position from the category of vulnerable purchasers of
residential property who
are entitled to transfer in spite of the
seller’s intervening insolvency.  She argues that this
invalidity stems from
the inconsistency of the common law with
several constitutional rights.
[19]
Ms Sarrahwitz argues that this
unconstitutionality is particularly glaring because the Legislature
altered the common law position
by enacting the Sale of Land on
Instalments Act.
[11]
The effect of this was to confer an entitlement to transfer of
property, from an insolvent seller’s estate, on some
vulnerable
instalment purchasers while leaving purchasers like her unprotected.
She submits that this differentiation also
denies her equal
protection and benefit of the law and is inconsistent with the right
to equality, unjustifiable and therefore
constitutionally
invalid.
[12]
Based on that inconsistency, she contends that the common law has to
be developed to accommodate a purchaser who has paid
the full
purchase price for a residential property but is prevented by the
common law from enjoying the right of access to housing.
[20]
It bears repetition that these
grounds are different from those on which the application was
initially launched in the High Court.
Consequently, neither the
High Court nor the Supreme Court of Appeal, which are reputed for
their expertise in the common law,
were afforded the opportunity
to enrich the proposed development by being the first to grapple with
the impugned common law principle.
[13]
[21]
It is only under exceptional
circumstances that this Court would agree to be burdened with the
development of the common law, as
a court of first and last
instance.
[14]
Since no exceptional circumstances exist to justify a departure from
this sound principle, this Court will uphold it.
[15]
[22]
The trustee’s withdrawal from
this matter leaves us with only the Minister’s submissions to
consider.  And the
Minister does not oppose the application for
leave to appeal.  On the contrary, he contends that the failure
of the Land Act
to confer on Ms Sarrahwitz the benefit enjoyed by
similarly-positioned instalment sale purchasers is
unconstitutional.
[16]
In his view the public policy considerations which prompted the
creation of the protections set out in sections 21 and 22
of the Land
Act apply with equal force to a person in the position of Ms
Sarrahwitz.  And there should, according to him,
be no
differentiation between the two categories of purchasers based purely
on method of payment.
[23]
These contentions find some
reinforcement in the fact that a seller’s insolvency has never
served as an automatic bar to transfer.
It has in principle
always been open to a trustee to authorise transfer even to a person
in the position of Ms Sarrahwitz.
By parity of reasoning, the
two equally vulnerable categories have always enjoyed similar
treatment.  Trengove JA articulates
this position as follows:
“
The
effect, at common law, of the insolvency of an owner, who had sold
land in terms of an agreement under which the purchase price
was
payable in instalments, may be summed up as follows.  His
insolvency does not
ipso jure
terminate the contract.  The trustee of his estate has an
election – which he must exercise within a reasonable time
–
either to enforce the contract or to terminate it.  He makes his
election with due regard to the interests of the
concursus
creditorum
, and neither the purchaser
nor the cessionary, in a case such as the present, has any say in the
matter if the trustee decides
to terminate the contract, the
purchaser cannot insist upon transfer of the land
even
though he may already have paid a substantial portion or all of the
purchase price thereof
.  He would,
in such a case, have no more than a concurrent claim for damages
against the insolvent estate.”
[17]
(Emphasis added.)
The fate of
purchasers in both categories was in the absolute discretion of the
trustee, prior to the introduction of the protective
measures now
enjoyed only by instalment purchasers.
[24]
The Minister argues that it must
have been the purpose of the Land Act to protect all vulnerable
purchasers of residential property
irrespective of their method of
payment.  He sees the legislative scheme of the Land Act and
sections 21 and 22 in particular
as under-inclusive.  He also
submits that, on a proper interpretation of the provisions of Chapter
II of the Land Act, informed
by the normative values of the
Constitution, a purchaser who made a once-off payment of the full
purchase price for a house, should
enjoy the same protection and
benefit of the Land Act as a purchaser who bought a house in terms of
an instalment sale agreement.
For this reason the Minister
proposes that the Land Act should provide for transfer even to a
purchaser who had made the full payment
for a residential property at
the time of the sequestration of the seller’s estate.
[25]
The remedy he proposes to cure this
unconstitutional omission is the reading in of certain words with
retrospective effect.
[18]
A reading in of those words is, in his view, faithful to the
legislative scheme, given the historical development of the
existing
protection.  He considers it unnecessary to refer the Land Act
back to Parliament to cure the constitutional defect
he has
identified.
[26]
In line with these proposals, it
must be recalled that Ms Sarrahwitz’s cause of action has
always been that vulnerable people
in her position deserve legal
protection.  In her main application to the High Court, she
placed reliance on sections 21 and
22 of the Land Act as the basis
for the transfer of the house to her.  Although that Court
dismissed her application on the
basis that it is the common law, not
sections 21 and 22 of the Land Act, that governs the transfer she
sought, her case has always
been that a proper interpretation of this
legislation holds the key to her relief.  The Minister’s
compassionate proposition
that the solution be found in the Land Act
and that words be read into Chapter II of the Land Act, is therefore
not far-removed
from the substance of Ms Sarrahwitz’s main case
before the High Court.
[19]
It is more in line with her initial cause of action than with
her desperation-borne attempt to have the common law developed.
[27]
The cause of action in the main
application has merely had a constitutional flavour expressly added
to it at a leave to appeal stage,
to achieve the same objective
initially pursued via the route of a proper interpretation of
sections 21 and 22 of the Land Act.
It does become necessary at
times to read the papers of a party – especially a vulnerable
litigant – with a measure
of compassion, when it is in the
interests of justice to do so.  If that were to be done in this
case, in line with the Minister’s
approach, it would become
evident that Ms Sarrahwitz has in essence always contended that
a proper interpretation of the law
would result in the house being
transferred to her.  And it follows from a proper reading of her
papers that her case was
at all times premised on certain
constitutional rights.  Although not specified in her initial
application, she has since
indicated that some of those rights are
her fundamental right of access to housing, the right to dignity and
the right to equality.
[20]
[28]
The principle that a point of law
must be raised timeously and not for the first time on appeal, as is
the case with a reliance
on specific constitutional rights in this
matter, is not an inflexible one.
[21]
Allowing these constitutional points to be raised now, finds support
in the approach we must adopt as we interpret Chapter
II and sections
21 and 22 of the Land Act.  That approach is laid down in
section 39(2) of the Constitution which enjoins
us to have
particular regard to the Bill of Rights as follows:
“
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.”
[29]
It is therefore a constitutional
imperative that whenever legislation is interpreted and the common
law or customary law is developed
or its development is being
considered, regard must be had to the Bill of Rights.  It means
in this case that the spirit,
purport and objects of the right of
access to adequate housing, the right to dignity and the right to
equality, entrenched in our
Bill of Rights, must be promoted through
a proper interpretation of the Land Act to address the plight of Ms
Sarrahwitz.
The Land Act must be interpreted with due regard to
the constitutional rights that are implicated here.  When
considering
the common law in the main application as well as the
Land Act in the application for leave to appeal, the High Court was
thus
enjoined by section 39(2) to have regard to the Bill of Rights.
Unfortunately, it did not do so.
[30]
In any event, this Court has
acknowledged that “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”.
[22]
To resolve that, a court should be guided by three conditions: the
point sought to be raised must be a point of law; it must
be covered
by the pleadings; and there should be no prejudice to the other
party.
[23]
These conditions have been met.
[31]
Ms Sarrahwitz raised a point of law
that accords with the pleadings.  There is no factual dispute
and the factual basis for
the relief sought has not changed.
[24]
Of great moment is that none of the parties, including the trustee,
will suffer prejudice if leave to appeal were to be granted.

Both Ms Sarrahwitz and the Minister agree that the exclusion of
purchasers like her from the Land Act’s protection is
constitutionally
invalid and that reading in is the solution.
They do however differ on the section(s) in which reading in would be
more appropriate.
Equally important is that the trustee chose
not to oppose the application for leave to appeal after familiarising
himself with
the grounds for leave to appeal.  In fact, given
the long history of the matter and the time-lapse since the
sequestration
of Mr Posthumus’ estate, it is in the interests
of all affected parties that this Court brings finality to this
matter.
This would in turn lead to the finalisation of Mr
Posthumus’ estate.
[32]
There are prospects of success and
the interests of justice demand that leave to appeal be granted.
Before the merits are
considered, it is necessary to reflect on
why the Legislature had to interfere with the common law.
Purpose of the
legislative intervention
[33]
Before 1971 none of the purchasers
were, in terms of the common law, entitled to insist on transfer when
a seller of an immovable
property became insolvent.  This
applied to purchasers who had paid within a year and those who were
paying or had paid the
purchase price in instalments over a period of
one year or longer.
[25]
As a result, many vulnerable purchasers of residential property lost
the opportunity to own homes and the money paid to acquire
that
property.
[26]
Parliament set out to end the disastrous consequences of this law by
enacting the Sale of Land on Instalments Act which provided
for the
entitlement of the instalment purchaser, to have the property
transferred to her.
[34]
Neither the Land Act nor its
predecessor
[27]
singles out vulnerable instalment purchasers as beneficiaries of the
right it creates for the transfer of property, from a seller
who
subsequently becomes insolvent.  What the Land Act does, in the
definition of “land”, is indicate that the
entitlement
was created for purchasers of residential property.  And this
entitles any instalment purchaser however wealthy,
even if it is the
tenth or so house she is purchasing, to benefit from the Land Act’s
protection.  All she needs to
do to qualify for the benefit is
pay at least two instalments over a period of one year or longer.
[35]
It could, however, never have been
the purpose of the Land Act to protect all instalment purchasers
regardless of the means at their
command.  The purpose could
only have been to protect those who need protection.  And these
are vulnerable people who
have no other place they could call home or
lack the resources to acquire another, when the one they had is lost
to the seller’s
insolvency.  It defies logic that
protection be extended even to those who have either more than one
house or the capacity
to acquire alternative decent accommodation.
Otherwise all property, including business premises, should also have
been saved
from the harsh consequences of insolvency.  The fact
that protection from this hardship is confined to residential
property,
coupled with the challenges in relation to home-acquisition
that prevailed at the time and still do, points very strongly to only

vulnerable purchasers being the targeted beneficiaries of the
legislative intervention.  The legislation probably requires

that clarification.  Unfortunately, Parliament has not amended
the Land Act in a way that would reflect the position set out
in
Glen
Anil Finance
[28]
and
Merry Hill
.
[29]
Left as is, it creates a risk of insolvent estates’ creditors
being unduly disadvantaged by the exclusion of those
properties that
belong to purchasers who do not need protection.
[36]
The Court in
Glen
Anil Finance
explained the rationale
for this legal development as follows:
“
According
to the law as it stood in 1971, a purchaser, who had bought land
under a contract in terms of which the purchase price
was payable in
instalments, ran the risk of losing both the land and any instalments
he may have paid, in the event of the estate
of the registered owner
being sequestrated as insolvent, or the land being sold in
execution.
This 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
.
This was, without question, the mischief
which section 14 of the Act was intended to remedy
.
Looking at the Act as
a whole, it is quite evident from its terms that Parliament intended
altering the existing law, insofar as
it related to contracts for the
sale of land,
used or intended to be
used mainly for residential purposes
,
under which the purchase price is payable in more than two
instalments over a period of one year or longer.  The principal

purpose of the Legislature was obviously to protect the interests of
a purchaser buying land under such a contract.”
[30]
(Reference omitted and emphasis added.)
[37]
Reasons for this development and the
category of purchasers singled out for protection were further
highlighted in
Merry Hill
:
“
Let
me start with a proposition which appears to be beyond contention,
namely, that the purpose of Chapter 2 of the Act, which includes

section 19, is to afford protection, in addition to what the contract
may provide, to a particular type of purchaser – a
purchaser
who pays by instalments – of a particular type of land –
land used or intended to be used mainly
for residential purposes
.  In this
sense, Chapter 2, like its predecessor, the Sale of Land on
Instalments Act 72 of 1971, can be described as a
typical
piece of consumer protection legislation
.
. . .
The reason why the
legislature thought this additional statutory protection necessary is
not difficult to perceive
.
It
is because experience has shown this type of purchaser, generally, to
be the vulnerable, uninformed small buyer of residential
property
who is no match for the large developer in a bargaining
situation.”
[31]
(References omitted and emphasis added.)
[38]
The purpose for the creation of the
exception was to protect the interests of individuals who would have
spent the little money
they had to secure residential property, in
terms of an instalment sale agreement, when the seller of that
property became insolvent.
There was a risk of the purchaser
having to endure the real hardship and misfortune of losing both the
house and the money already
paid, as a result of the common law
position.  Parliament saw the need to afford protection to those
vulnerable and financially-constrained
buyers by ensuring that they
could still obtain transfer of the residential property when the
seller becomes insolvent.
[39]
A contextual and purposive
interpretation of the Land Act identifies the mischief sought to be
addressed by Parliament.  That
mischief is the loss of an
opportunity to own a house and the money already paid to that end by
the under resourced.
This legislation undoubtedly serves a
purpose that is beneficial to a category of those most deserving of
protection.  It
seeks to protect and benefit “the
vulnerable, uninformed small buyers of residential property”
[32]
like Ms Sarrahwitz who are no match for well-resourced and informed
property owners.  That an instalment purchaser who is
to benefit
from this legislation is the one who pays the purchase price in at
least two instalments over one year or longer, strengthens
the
proposition that the protection was meant for those who are
vulnerable.  The question does arise though, whether the
Constitution countenances the differentiation between this category
of vulnerable purchasers of residential property from those
who are
just as vulnerable but happen to make a once-off payment for a
residential property.
Access to adequate
housing
[40]
Ms Sarrahwitz contends that the
legislative scheme and the relevant provisions of the Land Act are
unconstitutional to the extent
of their under-inclusivity.  In
her view, the Land Act impairs some vulnerable purchasers’
right of access to adequate
housing even if it is unjustifiable.
This is the case, so she says, where a would-be first time homeowner
has made a once-off
payment for a residential property or paid for it
within a period shorter than one year.  That category of
purchasers is excluded
by the Land Act from entitlement to transfer,
in the event of the seller’s insolvency, even if non-transfer
would result
in the purchaser’s homelessness.
[41]
Section 26 of our Constitution was
meant to put a permanent end to this indignity.  It not only
provides for access to adequate
housing but also imposes an
obligation on the State to take all reasonable measures to achieve
the progressive realisation of the
right of access to adequate
housing.
[33]
The arbitrary eviction from a house or a demolition thereof is also
proscribed.  The other objective of the right of
access to
adequate housing is the facilitation of the nation’s decisive
break from the legacy of homelessness for multitudes
of vulnerable
women and poor people.  It also helps us to embrace fully, the
dispensation of access to adequate housing for
all and serves as a
deliberate limitation of interference with that access unless
otherwise justified.
[34]
[42]
In
Jaftha
,
this Court considered the import of the right to adequate
housing.
[35]
A proper reflection on that case reveals a striking and material
similarity between Ms Jaftha’s plight and that
of Ms
Sarrahwitz.  Both cases are about the right of access to
adequate housing, a socio-economic right, which inevitably
implicates
the right to dignity.
[36]
Generally speaking, it is very difficult for a homeless person to
keep her self-worth or dignity intact.  She is at
the mercy of
any landlord, relative or friend who might be providing her with
accommodation.  And no vulnerable person who
has tasted what it
means to have a place they can truly call home should be deprived of
it without justification.  Our painful
history abounds with
incidents of atrocious forced removals and heartless evictions of
black and vulnerable people like Ms Sarrahwitz.
[43]
Ms Jaftha and Ms Sarrahwitz’s
right of access to adequate housing was or is at grave risk of
extinction as a result of the
sale in execution or the insolvency of
the seller, respectively.  Both had been in occupation of their
homes for many years.
This Court expressed itself on these
issues, within the context of our lamentable history in relation to
lack of access to adequate
housing and the consequential impairment
of dignity, as follows:
“
The
situation under apartheid demonstrates the extent to which access to
adequate housing is linked to dignity and self-worth.
Not only
did legislation permit the summary eviction of people from their land
and homes which, in many cases, had been occupied
for an extremely
long time, it branded as criminal anyone who was deemed to be
occupying land in contravention of it.  In
this sense a person
was made to suffer double indignity – the loss of one’s
home and the stigma that attaches to criminal
sanction.”
[37]
(Footnote omitted.)
[44]
In Ms Sarrahwitz’s case the
double indignity she would be forced to endure, is the loss of a home
she has occupied for about
thirteen years and the loss of what is
probably the largest investment she has ever made.  What is even
worse in her case
is that, unlike Ms Jaftha, she was not assisted by
the State to acquire her home and she does not even owe anybody
anything that
would explain the loss of her home.  It is the
seller to whom the full purchase price was paid many years prior to
his insolvency,
who is indebted.  And it is because of his
indebtedness that Ms Sarrahwitz runs the risk of losing her home and
being evicted.
This problem was compounded by the
municipality’s failure to credit her payment for rates and
taxes correctly which allowed
the seller’s transfer-threatening
insolvency, to catch up with her.
[45]
The very low income bracket within
which she falls, the fact that she borrowed money from her then
employer to buy the house, that
she is unemployed and a financially
under-resourced head of the family, means that she and her family
would effectively be rendered
homeless should the differentiation
permitted by the scheme of the Land Act be left to live on.  The
negative obligation that
section 26 imposes on both the State and a
private person like the trustee of the insolvent estate, is that none
of them should
prevent or impair existing access to adequate
housing.
[38]
Ms Sarrahwitz is not asking the State to take steps to realise
her right of access to adequate housing progressively.
She
already has a home that she was not even assisted by the State to
acquire.  She innovatively defied the odds stacked up
against
her in relation to access to home loans, to acquire and renovate a
home for her family.
[46]
Having regard to the disturbingly
high levels of homelessness, the virtual inaccessibility of home
loans to the poor and the import
of the right of access to adequate
housing, it stands to reason that “any measure which permits a
person to be deprived of
existing access to adequate housing limits
the rights protected in section 26(1)”.
[39]
But the right of access to adequate housing and the intrinsically
implicated right to dignity are not the only constitutional
rights
intimately involved in this matter.  The right to equal
protection and benefit of the law also cries out for vindication.
Equality
[47]
The right to equality is central to
the question whether it is constitutionally permissible for
legislation to benefit certain vulnerable
instalment purchasers to
the exclusion of equally vulnerable purchasers who make a once-off
payment or pay within one year.
Section 9 of the Constitution
provides for this right in these terms:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms.  To
promote the achievement of equality, legislative
and other measures designed to protect or advance persons, or
categories of persons,
disadvantaged by unfair discrimination may be
taken.
(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.”
[48]
None of the grounds for
discrimination listed in section 9(3) seems to apply to this case.
And the ground for the differentiation
between the two categories of
purchasers, namely the method of payment, does not appear to be based
on attributes or characteristics
which have the inherent potential to
impair the fundamental dignity of persons as “human
beings”.
[40]
One needs to dig deeper to conclude that it is.  For this reason
it will not be necessary to explore the possibility
of developing
“one or more grounds” envisaged by subsection (3).
Subsection (1) will instead be used as a platform
for reflection on
the equality of treatment of various categories of purchasers.
[49]
This subsection guarantees everyone
the right to equal protection and benefit of the law.  The
concept of “equal protection
and benefit of the law”
suggests that purchasers who are equally vulnerable must enjoy the
same legal endowments irrespective
of their method of payment.
For this reason, the reach of the protection and benefits conferred
by the Land Act upon vulnerable
home-buyers must be extended to all
other vulnerable purchasers unless the differentiation is
justifiable.
[50]
The scheme of the Land Act as well
as sections 21 and 22 recognise and protect the fundamental right of
access to adequate housing
of only those who pay for a residential
property in at least two instalments over a period of one year or
longer.
[41]
This legislation effectively excludes those purchasers who settle the
purchase price in full at once or within a period less
than one
year.  Undoubtedly this amounts to a differentiation.
Whether this differentiation is constitutionally acceptable
is a
matter that calls for further reflection.
Harksen
v Lane
provides in relevant part
step-by-step guidelines for doing so:
“
(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
section 8(1).  Even if it does bear
a rational connection, it might nevertheless amount to
discrimination.
(b)
. . .
(ii)
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 section
8(2).”
[42]
[51]
Differentiation is the centrepiece
of the equality jurisprudence including our constitutional right to
equality.  Section 9
of our Constitution seeks to uproot two
kinds of differentiation from our legal landscape: (i) the one that
results in unfair discrimination;
and (ii) the one that results in
mere differentiation.  The latter requires of the State to act
rationally at all times and
not in an arbitrary or whimsical way.
State action must always be designed to advance a legitimate
governmental purpose in
consonance with the rule of law and the very
essence of constitutionalism.  This attribute of equality
compels the State to
regulate its affairs in a rational and
justifiable manner.  It speaks to the core business of the State
which is equal treatment
of its citizens and the pursuit of what
redounds to the common good of all.
[43]
This case is about mere differentiation.
[52]
Mere differentiation within the
context of the right to equal protection and benefit of the law was
dealt with in
Ngewu
.
[44]
The differentiation was about the failure to afford divorced
spouses of members of the Post Office Retirement Fund, rights
and
benefits similar to those enjoyed by former spouses of members of
funds regulated by the Pension Funds Act
[45]
and the Government Employee Pension Law.
[46]
The latter could claim their share of their former spouses’
pension interest at the time of divorce (clean break principle)

whereas the former were excluded from this entitlement.  This
was a self-evident case of legislation that gave rise to a
differentiation between categories of divorcees.  Whether there
was justification for that will appear later in this judgment.
[47]
[53]
In
Van
der Merwe
this Court also had occasion
to grapple with the right to equal protection and benefit of the law
in relation to a differentiation,
occasioned by section 18(b) of the
Matrimonial Property Act.
[48]
The differentiation was about claims for patrimonial and
non-patrimonial damages and in turn between people in marriages
in
and marriages out of community of property.
[49]
The question was whether this differentiation was constitutionally
tolerable.
[50]
[54]
The Court held that a
differentiation between people or classes of people will fall foul of
the constitutional standard of equality,
if it does not have a
legitimate purpose advanced to validate it.
[51]
If the legislation under attack lacks that rational connection, then
it violates the right to equal protection and benefit
of the law as a
result of the uneven conferment of benefits or imposition of burdens
by the legislative scheme without a rational
basis.
[52]
This “would be an arbitrary differentiation which neither
promotes public good nor advances a legitimate public object.

In this sense, the impugned law would be inconsistent with the
equality norm that the Constitution imposes inasmuch as it breaches

the rational differentiation standard set by section 9(1)
thereof.”
[53]
[55]
All three cases, namely: (i) the
impairment of existing access to adequate housing; (ii) the
differentiation between those married
in community of property and
those married out of community of property in relation to a claim for
patrimonial damages resulting
from spousal violence; and (iii) the
legislative exclusion of a claim to a share of the interest of former
spouses of members of
a particular pension fund, at the time of
divorce, to which their similarly-placed counterparts were allowed by
other legislation
to lay immediate claim, still called for a
justification analysis and that was done.
[54]
[56]
The corollary is that Ms Sarrahwitz
is denied the protection and benefit to which a person in her shoes
exactly, who happens to
acquire a house through a different method of
payment, is entitled.  Added to that is the fact that she had to
fend for herself
to acquire this treasured family gem and stands to
lose it because of the indebtedness of the seller and the errors of
the municipality
which diverted her payment for municipal rates to a
wrong account, thus delaying transfer until the seller became
insolvent.
This is also worsened by the apparent lack of
enthusiasm, on the part of Mr Posthumus and the lawyers over the
years, to expedite
the transfer process.
[57]
Denying Ms Sarrahwitz the protection
and benefit that the Land Act gives to certain instalment sale
purchasers amounts to a differentiation.
The real question is
whether that differentiation bears a rational connection to a
legitimate governmental purpose and whether
it is justifiable.
The limitation analysis in relation to the impairment of Ms
Sarrahwitz’s right of access to adequate
housing, her right to
dignity and her exclusion from the protection and benefit the Land
Act offers to vulnerable instalment purchasers,
will thus have to be
embarked upon.
Justification analysis
[58]
Moseneke DCJ had this to say about
the justification analysis in
Van der
Merwe
:
“
[O]rdinarily
the starting point of a justification enquiry would be to examine the
purpose the government articulates in support
of the legislation
under challenge.  In this case the government did not proffer a
purpose to validate the impugned provision.”
[55]
[59]
He went on to say that—
“
[o]f
course, the pursuit of a legitimate government purpose is central to
a limitation analysis. . . .  However, in this case
there is no
legitimate purpose to validate the impugned law.  The absence of
a legitimate purpose means that there is nothing
to assess.  The
lack of a legitimate purpose renders, at the outset, the limitation
unjustifiable.  I am satisfied that
section 18(b) of the Act is
inconsistent with the Constitution because it limits the equality
provision of section 9(1) without
any justification.”
[56]
[60]
In line with that reasoning
,
Van der Westhuizen J ended the limitation analysis in
Ngewu
as follows:
“
Because
of the omission of the ‘clean break’ principle there is a
differentiation between the payment of divorced spouses’

interests regulated by the Pension Funds Act and the Government
Employees Pension Law Amendment Act on one hand, and the payment
of
divorced spouses’ interest governed by the Post Office Act on
the other.  The differentiation is irrational as it
has no
basis.  It does not meet the requirement of equality before the
law and equal protection and benefit of the law contained
in section
9(1) of the Constitution.  The respondents furthermore did not
submit that the legislation contains a reasonable
and justifiable
limitation of the right protected in section 9(1) and could hardly do
so.  Therefore, the omission of the
‘clean break’
principle from sections 10 to 10E of the Post Office Act renders
those provisions invalid to the extent
of this inequality.”
[57]
(Footnotes omitted.)
The differentiation
of Ms Ngewu from similarly-positioned people by different pieces of
legislation was found to be unjustifiable
and unconstitutional.
It is worth noting that, unlike in this case and in
Van
der Merwe
, the differentiation in
Ngewu
did not arise from the same legislation.  Different Acts of
Parliament provided differently for similarly-situated divorcees
and
that was the basis for the successful constitutional challenge.
It is worse in this case because the same legislation
effectively
differentiates between equally vulnerable purchasers.  I now
turn to the present case.
[61]
The Minister was unable to
articulate a legitimate governmental purpose for the exclusion of
vulnerable purchasers who pay the full
purchase price for a house
before transfer.  He however alluded to the unlikeliness of that
happening as the possible reason
for their exclusion from the
benefits of transfer.  Broadly speaking, there is a deductible
rational explanation for the exclusion
of purchasers of homes who pay
in full within a period of one year or in one instalment in the case
of an instalment sale agreement.
And that possible
justification for their exclusion is, as the Minister said, the
assumption that it is unlikely that any person
of modest possessions
could, considering how expensive residential properties are, be able
to pay the full purchase price at once
or within such a short period
as one year.  Those sought to be protected would be people who
are under resourced and
who can ordinarily afford to purchase
residential property by paying in excess of two instalments over a
period of one year or
longer.
[62]
Sound as this assumption might be,
it is not always correct as is evident from the case of
Ms Sarrahwitz.  And the impact
of a rigid adherence to it
on those vulnerable purchasers who are left out has such disastrous
consequences as to warrant accommodation.
[63]
Mokgoro J explained the impact of
limiting the right of access to adequate housing, particularly on
people like Ms Sarrahwitz, and
the implications of this impairment on
the right to dignity in these terms:
“
The
importance of access to adequate housing and its link to the inherent
dignity of a person has been well emphasised by this Court.
In
the present matter access to adequate housing already exists.
Relative to homelessness, to have a home one calls one’s
own,
even under the most basic circumstances, can be a most empowering and
dignifying human experience.  The impugned provisions
have the
potential of undermining that experience.  The provisions take
indigent people who have already benefited from housing
subsidies
and, worse than placing them at the back of the queue to benefit
again from such subsidies in the future, put them in
a position where
they might never again acquire such assistance, without which they
may be rendered homeless and never able to
restore the conditions for
human dignity.  Section 66(1)(a) is therefore a severe
limitation of an important right.”
[58]
(Footnote omitted.)
[64]
It is difficult to conceive of an
instance where the refusal to transfer a home to a vulnerable
purchaser, who has paid in full,
coupled with inevitable
homelessness, would not outweigh the advantage to creditors of the
seller’s insolvent estate.
The situation is compounded by
the indignity to which the prospective homeowner is exposed and the
denial of equal protection and
benefit of the law to people like
Ms Sarrahwitz.
[65]
It must be reiterated that Ms
Sarrahwitz borrowed money from her then employer to pay the full
purchase price of the house.
She is unemployed and of modest
possessions.  And she is the head of a single-parent household
who has no other home of her
own or the resources to buy another
house to relocate to, should her constitutional challenge be
dismissed.  For all intents
and purposes her position is not
different from that of a vulnerable instalment purchaser whose
interests are already protected
by the Land Act.  There is no
rational basis for protecting a vulnerable instalment purchaser of a
residential property who
pays over a period of one year or longer,
while leaving out an equally vulnerable purchaser who borrowed money,
to pay the full
purchase price at once or one who does so in one
instalment or several instalments within one year.
[66]
As at the time of changing the
common law, the two categories were equally exposed to the same risk
of losing the opportunity to
access adequate housing and the money
already paid, however substantial it might be.  The refusal to
transfer has as devastating
an impact on purchasers in the one
category as it has on the other.  The consequential hardship and
misfortune the beneficiary
of the legislative accommodation is
protected from, applies with equal force to the excluded
Ms Sarrahwitz.  Objectively,
the differentiation that stems
from her exclusion impairs her implicated fundamental rights.
And there is no legitimate governmental
purpose for the
differentiation.
[67]
So long as there exists a real risk
within the legislative scheme for some vulnerable purchasers to be
rendered homeless, the scheme
is under-inclusive.  It violates
the right of access to adequate housing and limits purchasers’
rights unjustifiably.
[59]
The difficulty lies in the under-inclusiveness of the legislative
scheme.  This is so because, in its commendable attempt
to
provide for vulnerable purchasers, it left out a small and yet
important category of vulnerable purchasers.  These are

purchasers who happen to pour out all they have, however acquired, to
give practical expression to their right of access to adequate

housing.  I am of the firm view that since these rights are
constitutionally protected, the impugned provisions ought also
to be
restructured in such a way as to protect the homes of all vulnerable
purchasers.  This should be especially so when
purchasers are
exposed to the risk of becoming homeless as a result of their homes
not being transferred to them from the seller’s
insolvent
estate.
[68]
The impugned provisions are
unconstitutional to the extent that: (i) the differentiation they
bring about is irrational in that
it is not undergirded by a
legitimate government purpose; and (ii) they exclude the transfer of
a house from an insolvent estate
to a vulnerable purchaser who has
paid for it within one year even in circumstances where that
exclusion is unjustifiable and could
result in the homelessness of
the purchaser.
[60]
What then is the appropriate remedy?
Remedy
[69]
The impugned provisions need a
surgical operation.  That operation requires that section 4 of
the Land Act be enhanced to yield
an outcome that both parties desire
and are in essence agreed on.  For both would like to see the
residential property that
Ms Sarrahwitz has paid for in full
transferred to her.  That is the order to be made and it shall
apply only to insolvent
estates that are yet to be finalised.
[61]
Severance and reading in
[70]
The conclusion that the
differentiation against Ms Sarrahwitz caused by the legislative
scheme of the Land Act and sections 21
and 22 in particular is
irrational, justifies the severance and reading in of the words that
would remedy that constitutional invalidity.
[71]
Doing so would not undermine
separation of powers for at least two reasons.  The remedy of
severance or reading in has been
part of our constitutional
jurisprudence for many years now.
[62]
It was developed with due regard to the separation of powers
principle.
[63]
And this continues to be so because a resort to these remedies has
never precluded Parliament from amending the invalidated
provisions
whichever way it pleases, provided it does so mindful of the need to
cure the constitutional defect(s) identified by
this Court.  It
is therefore open to Parliament to even enact an altogether new piece
of legislation in response to this judgment.
[64]
[72]
Severance and reading in were
resorted to by this Court in several cases where it was considered
eminently suited to address a constitutional
defect.
[65]
And this is one of those cases where this remedy is appropriate.
[73]
The remedy that would meet the needs
of Ms Sarrahwitz adequately is not one that seeks to determine an
exhaustive list of instances
to be accommodated by the reading in
exercise.  On the contrary, it must be flexible and applicable
to diverse purchasing
options left out of the Land Act’s
protection, which could leave unprotected purchasers exposed to the
risk of losing their
homes or security of tenure.
[66]
The crafting of the remedy should obviously be done with due regard
to the interests of creditors to the seller’s insolvent

estate.
[67]
[74]
The starting point is the definition
of the word “contract”.  Section 1 of the Land Act
provides that “contract”—
“
(a)
means a deed of alienation under which land is sold against payment
by the purchaser to, or to
any person on behalf of, the seller of an
amount of money in more than two instalments over a period exceeding
one year;
(b)
includes any agreement or agreements which together have the same
import, whatever
form the agreement or agreements may take”.
Left as it is, this
definition is likely to stand in the way of the transfer of the house
to Ms Sarrahwitz.  For this reason
and in order to provide for
those who, like Ms Sarrahwitz, are likely to be homeless absent
appropriate legislative accommodation,
words must be read in at the
end of paragraph (a) of the definition of “contract”.
Those words are “including
residential property paid for in
full within one year of the contract, by a vulnerable purchaser”.
[75]
“
Vulnerable purchaser”
should be defined as “a purchaser who runs the risk of being
rendered homeless by a seller’s
insolvency”.
[76]
Chapter II of the Land Act also
requires some tweaking to clear the way for the transfer of the house
to Ms Sarrahwitz.  The
first part to be changed is the title of
Chapter II.  It currently reads “SALE OF LAND ON
INSTALMENTS”.
In this form it could be understood as
announcing the exclusion of transfer of property acquired in terms of
upfront and once-off
payment.  It is therefore necessary that
the words “ON INSTALMENTS” be severed from the heading.
[77]
Finally, section 4 of the Land Act
also requires some attention.  The pre-existing provisions under
it must become subsection
(1).  Subsection (2) must be inserted
and it reads:
“
(2)
Sections 21(2) and 22 shall, however, apply, with the necessary
changes, to a deed of alienation
in terms of which a vulnerable
purchaser of a residential property paid the full purchase price
within one year of the contract,
before the seller’s
insolvency.”
Order
[78]
In the result the following order is
made:
1.
Leave to appeal is granted.
2.
The appeal is upheld to the extent set out below.
3.
The order of the Eastern Cape High Court, Port Elizabeth, in case
number 819/2012
is set aside.
4.
The failure by the
Alienation of Land Act 68 of 1981
to provide for
the transfer of a residential property from an insolvent estate to
avoid the homelessness of a vulnerable purchaser,
who paid the full
purchase price within one year of the contract, is inconsistent with
the Constitution and invalid.
5.
From the date of this order:
(a)
The words “including residential property paid for in full
within one year of the
contract, by a vulnerable purchaser” are
to be read into the definition of “contract” at the end
of section 1(a).
(b)
The following is added to the definitions in section 1:
“‘
Vulnerable
purchaser’ means a purchaser who runs the risk of being
rendered homeless by a seller’s insolvency”.
(c)
The words “ON INSTALMENTS” in the title of Chapter II of
the
Alienation of Land Act 68 of 1981
, are severed and
section 4
reads as follows:
“
(1)
This Chapter shall not apply in respect of a contract in terms of
which the State, the Community Development
Board established by
section 2 of the Community Development Act, 1966 (Act 3 of 1966), the
National Housing Commission mentioned
in section 5 of the Housing
Act, 1966 (Act 4 of 1966), or a local authority is the seller.
(2)
Sections 21(2) and 22 shall, however, apply, with the necessary
changes, to a deed of alienation
in terms of which a vulnerable
purchaser of a residential property paid the full purchase price
within one year of the contract,
before the seller’s
insolvency.”
6.
This order will apply only to a seller’s insolvent estate that
has not
been finalised.
7.
The first respondent is directed to take all steps necessary to
effect transfer
of the residential property situated at 23 Auburn
Street, Booysens Park, Port Elizabeth to the applicant.
8.
There is no order as to costs.
CAMERON J AND
FRONEMAN J:
[79]
We have had the benefit of reading
the judgment of Mogoeng CJ (main judgment), and are grateful for its
exposition of the facts
and the issues.  We agree with the Chief
Justice that the problem this case presents demands a solution.
It would be
a disgrace to the law if there was no answer to Ms
Sarrahwitz’s plight.  The main judgment explains that the
essence
of Ms Sarrahwitz’s claim throughout was that the law
provides, or should provide her with a remedy.  We agree.

Nothing in fact or law will prejudice the other parties if we decide
that the law provides her with a remedy.  Although we
concur in
the order made, we do so with some reservation.
[80]
The main judgment finds that the
Constitution does not countenance the differentiation the Land Act
makes in extending protection
to instalment sale purchasers, but not
to other purchasers.  It concludes that the statute should also
protect purchasers
who have paid in full for their properties and who
are at risk of becoming homeless.  The main judgment concludes
that legislation
that serves the purpose of protecting vulnerable
purchasers of residential property should not protect those who buy
in terms of
an instalment sale agreement spread over a year or more,
while excluding equally vulnerable purchasers who make a once-off
cash
payment for a house, or pay off the purchase price within a
year.
[81]
In the present case, the Minister
does not seek to articulate any legitimate government purpose for the
exclusion of purchasers
who pay the full purchase price at once or
within one year.  Instead, the Minister explains that most often
transfer will
happen at the same time (
pari
passu
) – in which case there are
protection mechanisms built into the contractual and conveyancing
processes.  Thus, Ms Sarrahwitz
is in a very rare class of
purchasers and, the Minister submits, the Legislature probably did
not consider vulnerable persons in
her position.  The Minister’s
approach constitutes a legitimate invitation to the Court to follow
this route to help
Ms Sarrahwitz.
[82]
Still, we are not bound by the
Minister’s approach.  Indeed, despite his tempting
invitation to the Court, it is not
difficult to find a rational
purpose in the distinction the statute draws.  One springs to
mind.  It is this: purchasers
who have access to enough money to
pay off a property purchase immediately, or within a year, are
better-off than those who have
to pay in instalments over a period of
one year or more.  Hence they need less protection than those
whose financial circumstances
oblige them to pay off their property
debt more arduously, over a longer period.
[83]
By contrast, the main judgment finds
this distinction irrational – a conclusion the Minister’s
invitation encouraged.
The Minister’s approach gives the
Court acquittance from worry about the separation of powers.  We
acknowledge this.
But we sound a caution because of future
cases.  The Legislature constantly extends statutory protections
to vulnerable groups.
That is its almost daily work.  Who
needs statutory protection?  How should the group be defined?
What are the
boundaries of the protection?  Making these
distinctions in determining the boundaries of beneficial consumer
protection legislation
is what Parliament is called to do.  Is
this Court at liberty, every time Parliament makes a differentiation,
to find that
the protection it has created is irrational because it
is under-inclusive?  We do not think that the fact that this
Court
has accepted a plain invitation from the Minister in this case
entails that conclusion.
[84]
In effect, the approach of the main
judgment risks an interpretation that this Court is saying that any
beneficial legislative distinction
the Legislature draws in extending
consumer protections may be struck down as irrational if all persons
are not protected.
Because of the unusual circumstances of this
case, that would go too far.  So, while we concur in the order
made in the main
judgment, we wish to make it clear that we do so
only because of the exceptional circumstances of the case, where the
Minister
has suggested and supports the remedy granted in the main
judgment.
[85]
In general terms, that kind of
approach is risky for three broad reasons.  First, it risks
narrowing sharply what Parliament
may do when it enacts beneficial
consumer legislation.  Second, the reading-in remedy takes over
one of Parliament’s
essential functions.  This is to craft
policy pertinent to social needs, and, where necessary, to draw
distinctions between
groups in doing so.  To do its job of
enacting remedial consumer legislation, the Legislature needs some
measure of latitude.
The Minister submits that this can be done
with relative precision but cautions that the “result achieved
[must] interfere
with the laws made by the legislature as little as
possible”.  We endorse this caution.
[86]
Then there is a third, narrower
reason.  It is connected to the danger courts face when they
attempt to craft legislative distinctions
through the remedy of
reading them into existing legislation.  It is at best a
difficult task to define the limits of vulnerability
that will
entitle purchasers who paid the full purchase price to the same
protection as instalment purchasers under the Land Act.
The
main judgment appears to find that limit in the risk of homelessness
some purchasers will face.  That statute does not,
however,
require that instalment purchasers face the risk of homelessness
before affording them its protection.  So, in the
end, the
comparison and outcome of the equality analysis in the main judgment
creates the potential for further differentiation,
and perhaps even
discrimination.
[87]
Section 9(1) of the Bill of Rights
provides that everyone is equal before the law, and that everyone has
the right to equal protection
and benefit of the law.  This
Court has held that this section precludes government from regulating
in an arbitrary manner,
or manifesting “naked preferences”
that serve no legitimate government purpose.
[68]
A naked preference constitutes an arbitrary differentiation that
neither promotes public good nor advances a legitimate
public
object.
[69]
Hence it is inconsistent with the rule of law and the fundamental
premises of the constitutional state.
[70]
This feature of equality protection ensures that the State is bound
to function in a rational manner.  It requires that
governmental
action must relate to a defensible vision of the public good.
It also enhances the coherence and integrity of
legislation.
[71]
[88]
This Court has used the equality
promise of section 9(1) to strike down statutory differentiations as
irrational.  But they
are distant from Ms Sarrahwitz’s
situation.  In
Van der Merwe
,
this Court invalidated a statutory provision that permitted a spouse
married in community of property to claim non-patrimonial
damages for
bodily injury from the other spouse, but precluded that same spouse
from claiming patrimonial damages.
[72]
Spouses married out of community of property could claim both kinds
of damages from each other.  The law thus denied
one class of
married people a protection another class enjoyed.
[73]
The denial was irrational because its underlying basis, the sameness
of the joint estate of spouses married in community
of property, had
itself been legislatively abolished: even for spouses married in
community of property, damages would remain separate.
[74]
What was more, the distinction between patrimonial and
non-patrimonial damages was also irrational.
[75]
[89]
In
Ngewu
,
the Court struck down a differentiation between the payment of
divorced spouses’ interests regulated by two different statutes

that had no discernible basis, and it was therefore irrational.
[76]
The facts there are distinct from those before us.
[90]
This inherent difficulty in the
attempt to locate a constitutional breach in discrimination and
inequality arises from the fact
that the Constitution does not
protect against homelessness in absolute terms.
[77]
Instead, it seeks to provide that protection indirectly, by requiring
the State to take reasonable legislative and other
measures within
its available resources to achieve the progressive realisation of
everyone’s right to have access to adequate
housing.
[78]
In addition, it does so by providing that no one may be evicted from
their home, or have their home demolished, without an
order of court
made after considering all relevant circumstances, and that no
legislation may permit arbitrary evictions.
[79]
Instead, we think the remedy lay within the existing law under the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act
[80]
(PIE).
[91]
We would have assisted Ms Sarrahwitz
in a way that risks less intrusion on the domains of the other arms
of government.  The
main judgment’s reminder of the lack
of access to housing and ease of eviction in the past, illustrates
the real problem
Ms Sarrahwitz faces.  She may lose
possession of her home despite having paid for it in full.
Safeguarding the
possession of her home thus means that the problem
is on the way to a solution.  PIE, based on section 26(3) of the
Constitution,
provides a sharper and narrower remedy to safeguard her
possession.  Once possession of her home is secured, the
impediment
to transfer the property in her name will in all
likelihood disappear.
[92]
The property could have been
transferred to her.  That depended on a decision by the trustee
of the estate, the first respondent.
He could choose to affirm
her contract of sale, and give effect to it, or he could reject
it.
[81]
If he rejected it, she was left only with a claim against the estate,
which was broke.
[82]
It is here where Ms Sarrahwitz’s constitutional right of
access to housing envisaged in section 26(1) and protection
against
eviction contemplated in section 26(3) should have entered the
picture.  But it never did.
[93]
The insolvent estate has only one
other creditor.  It is the South African Revenue Service
(SARS).  The trustee had to
weigh SARS’s claim to the
unpaid tax liability against Ms Sarrahwitz’s claim to transfer
of her house.  SARS has
no interest in letting Ms Sarrahwitz get
her house.  It wants the unpaid taxes.  So its interest is
in the trustee selling
the house, and using the proceeds to pay the
tax debt.
[94]
The trustee opted to support SARS’s
claim and refused to affirm Ms Sarrahwitz’s contract and
give her transfer.
So when the insolvent estate is finalised,
she will be left with only a tiny payment, if anything – and no
house.  There
is nothing on record to indicate that the trustee
gave consideration to Ms Sarrahwitz’s constitutional right of
access to
housing and protection against eviction after cancellation
of the contract in electing not to affirm the contract and give her
transfer.  SARS’s claim for the unpaid tax liability
appears to have been decisive.
[95]
This Court should lay down a
principle in cases like the present.  It is this.  Eviction
from one’s home, resulting
in probable homelessness, where one
has paid 100% of the purchase price of the property and lived there
for a significant period
of time as the “owner”, will
generally not be just and equitable, even when the seller is
insolvent.  In terms
of PIE, a court may grant an order for
eviction of an unlawful occupier who has been in occupation for more
than six months only
if it is “just and equitable” to do
so, after considering all the relevant circumstances.
[83]
This should apply also to Ms Sarrahwitz’s family or heirs:
they, too, should not be evicted from her home.
[96]
Because she has not been given title
to the property, and because the trustee has disavowed her contract,
Ms Sarrahwitz is indeed,
statutorily, an “unlawful occupier”.
But she has paid the purchase price in full.  She did so well
over
a decade ago.  And she has been living on the property, as
its owner, since 2002.  It is very hard indeed to conceive
how,
in these circumstances, it could be just and equitable to evict her
from her own home.  Ms Sarrahwitz and her heirs should
be secure
in this home because eviction from it will be grossly unfair, in
defiance of both justice and equity.
[97]
Even protecting Ms Sarrahwitz’s
possessory rights by not granting an eviction order would not give
her the title she seeks,
namely her name on the property’s
title deed.  But she would be only a short step away from that
prize.  Once it
has been determined that no eviction order can
justly and equitably be granted against an occupier in her
circumstances, or that
occupier’s heirs, the property will lose
its economic value in the estate.  The other creditors –
here, only SARS
– will have no interest in it.  It will be
sterilised of any value in the insolvency.
[98]
It appears the trustee did not take
into account that eviction might be grossly unjust and inequitable.
At first glance, his
failure to do so amounts to a reviewable error
of law.  Unless he has an adequate answer, a review of his
decision should
readily set this right.
[99]
In these unusual circumstances, we
would have been inclined to order the parties to furnish further
information on whether an eviction
order has been granted against Ms
Sarrahwitz.
[84]
In addition further written argument could have been sought on what
order should be made in the light of this information
and whether the
trustee should be ordered to give transfer to Ms Sarrahwitz.  If
he had further reason to refuse, it would
have emerged.  If he
did not, then the order requiring him to give transfer should
follow.  This procedure would have
delayed, for a few weeks, the
finalisation of the matter.  That would have been a small price
to pay to give Ms Sarrahwitz
secure occupation of her own home and
subsequent probable transfer of the property to her.
[100]
In other words, a simpler possessory
remedy would have sufficed.  We would have preferred this route
along with calling for
the information and further argument on the
eventual remedy.
[101]
These considerations are assuaged,
in our view, by the extraordinary circumstance that the Minister
suggested and supported the
reading-in solution.  Had that not
been so, we would have proposed, rather, the possessory remedy
explained above.
For the Applicant:
For the Second Respondent:
E Crouse instructed by
Legal Aid South Africa.
C J Mouton SC and A
Rawjee instructed by the State Attorney.
[1]
Section 26 of the Constitution states:
“
(1)
Everyone has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of this right.
(3)
No one may be evicted from their home, or have their home
demolished,
without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary
evictions.”
[2]
In
Residents of Joe
Slovo Community, Western Cape v Thubelisha Homes and Others
[2009]
ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR 847
(CC) this Court
said the following at para 142:
“
Our
Constitution bears a transformative purpose in the terrain of
socio-economic rights.  It evinces a deep concern for the

material inequality closely associated with past exclusion and
poverty that are manifested by lack of proper housing.  That

explains why section 26(1) of the Constitution provides in express
terms that everyone has the right to have access to adequate

housing.  The State is required to take reasonable measures
within its available resources to provide everyone with access
to
adequate housing.  Section 26(3) in particular, creates an
important shield to anyone who may be subject to eviction
from their
home or to have their home demolished.  The Constitution makes
judicial intervention mandatory by requiring that
eviction from or
demolition of a home must occur through a court order made after
considering all relevant circumstances.”
[3]
68 of 1981.
[4]
The order was dated
7
August 2014.
[5]
She grounded the challenge on
sections 9, 10, 25, 26 and 33 of the Constitution.  Section 9
provides that everyone is equal
before the law, has the right to
equal protection and benefit of the law and proscribes unfair
discrimination.  No person,
including the State, may unfairly
discriminate directly or indirectly against anyone on one or more
listed grounds unless it
is established that the discrimination is
fair.  Section 9 provides further that national legislation
must be enacted to
prevent or prohibit unfair discrimination.
Section 10 provides that everyone has inherent dignity and the right
to have
their dignity respected.  Section 25(1) provides that
no one may be deprived of property except in terms of a law of
general
application.  It also prohibits arbitrary deprivation
of property.  Section 26 provides, in relevant part, that
everyone
has the right of access to adequate housing, and the State
is obligated to take reasonable steps within its available resources

to progressively realise this right.  Section 33(1) provides
that everyone has the right to administrative action that is
lawful,
reasonable and procedurally fair.
[6]
68 of 1969.
[7]
Minister of Justice and Constitutional
Development v Mathobela and Others
[2007] ZANWHC 5
(
Mathobela
).
[8]
Id at para 11.  See also
Shoprite
Checkers v Pillay NO and Others
[2014]
ZALCD 33 at para 10.
[9]
See Pillay and Naudé “Financing
Low-Income Housing in South Africa: Borrower Experiences and
Perceptions of Banks”
(2006) 30
Habitat
International
872 and Pillay et al
“Rights, Roles and Resources: An Analysis of Women’s
Housing Rights – Implications of
the Grootboom Case”
(Women’s Budget Initiative, Cape Town, 2006), available at
[http://www.academia.edu/6436563/RIGHTS_ROLES_AND_RESOURCES_
An_Analysis_of_Womens_Housing_Rights_-_Implications_of_the_Grootboom_case].
[10]
Above n 5.  The right to property and the
right to just administrative action, also sought to be relied on by
the applicant,
are however not implicated in this matter.
[11]
72 of 1971.
[12]
Section 9(1) of the Constitution provides that
“[e]veryone is equal before the law and has the right to equal
protection
and benefit of the law”.
[13]
Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at para 52:
“
Litigants
who seek to invoke provisions of section 39(2) must ordinarily plead
their case in the court of first instance in order
to warn the other
party of the case it will have to meet and the relief sought against
it.  The other obvious benefit is
that the High Court and the
Supreme Court of Appeal will be afforded the opportunity to
help shape the common law and customary
law in line with the
normative grid of the Constitution.”  (Footnote omitted.)
See
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998]
ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC)
at
para 8.  See also
S v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 15 where this Court held that:
“
It
has been said before but needs to be restated that this Court is
placed at a grave disadvantage if it is required to deal with

difficult questions of law, constitutional or otherwise, and has to
perform the balancing exercise demanded by section 33(1)
of the
Constitution virtually as a court of first instance.”
(Footnote omitted.
)
[14]
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
)
at para 50.  See also
Amod v
Multilateral Motor Vehicle Accidents Fund
[1998]
ZACC 11
;
1998 (4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 33.
[15]
Lane and Fey NNO v Dabelstein
[2001] ZACC 14
;
2001 (2) SA
1187
(CC);
2001 (4) BCLR 312
(CC) at para 5.
[16]
The Minister contended that, although he broadly
agreed with Ms Sarrahwitz’s contentions that the common law
position is
inconsistent with the Constitution, her reliance on
administrative fairness was misplaced.
[17]
Glen Anil Finance (Pty) Ltd v Joint
Liquidators, Glen Anil Development Corporation Ltd (In Liquidation)
1981 (1) SA 171
(A) (
Glen Anil Finance
)
at 182D-H.
[18]
The Minister referred to numerous judgments of
this Court where this remedy was adopted including:
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004]
ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) (
Jaftha
);
Lawyers for Human Rights and Others v
Minister of Home Affairs and Others
[2004]
ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) (
Lawyers
for Human Rights
);
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Another v Minister of Social Development
[2004]
ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) (
Khosa
);
Mabaso v Law Society of the Northern
Provinces
[2004] ZACC 8
;
2005 (2) SA
117
(CC);
2005 (2) BCLR 129
(CC); and
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1 (CC)
[1999] ZACC 17
; ;
2000 (1) BCLR 39
(CC) (
National
Coalition
).
[19]
This is one of three remedies proposed by the
Minister in the alternative.  The Minister’s main
submission is that
this Court read into Chapter II of the Land Act
in order to provide the necessary protection to Ms Sarrahwitz
and those
similarly placed.  In the alternative, the Minister
proposes that the matter be referred back to the Supreme Court

of Appeal and the common law position be developed.  In the
further alternative, the Minister proposes that should this Court

find that the Land Act contains a lacuna, the lacuna should be
rectified by Parliament.
[20]
Above n 10.
[21]
Below n 22-4.
[22]
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC)
(
Barkhuizen
)
at para 39.  See also
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
[2012] ZACC 2
;
2012 (3) SA 531
(CC);
2012 (5) BCLR 449
(CC) at para
109;
Van der Merwe and Another v Taylor
NO and Others
[2007] ZACC 16
;
2008 (1)
SA 1
(CC);
2007 (11) BCLR 1167
(CC) at paras 102-3; and
Shaik
v Minister of Justice and Constitutional Development and Others
[2003] ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at
paras 24-5.
Under appropriate
circumstances,
this Court is at large to
raise a pertinent point of law of its own motion.  See
CUSA
v Tao Ying Metal Industries and Others
[2008]
ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para 68,
where this Court said:
“
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.  That would infringe the principle of legality.
Accordingly, the Supreme Court
of Appeal was entitled
mero
motu
to raise the issue of the
Commissioner’s jurisdiction and to require argument thereon.”
(Footnote omitted.)
[23]
Barkhuizen
id:
“
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.”
(Emphasis added.)
On the issue of prejudice,
see also
Carmichele
above n 14 at para 31.
[24]
Quartermark Investments (Pty) Ltd v Mkhwanazi
and Another
[2013] ZASCA 150
;
2014 (3)
SA 96
(SCA) at para 20:
“
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.)
[25]
Glen Anil Finance
above n 17 at 174C-D.  See also
Ten
Brink NO and Another v Motala and Others
2001 (1) SA 1011
(D) at 1014I-1015A.
[26]
Glen Anil Finance
id.
[27]
Above n 11.
[28]
Glen Anil Finance
above
n 17
at 183F-H.
[29]
Merry Hill (Pty) Ltd v Engelbrecht
[2007] ZASCA 60
;
2008 (2) SA 544
(SCA) (
Merry
Hill
).
[30]
Glen Anil Finance
above n 17 at 183F-H.
[31]
Merry Hill
above
n 29 at para 13.
[32]
Id.
[33]
Above n 1.
[34]
Jaftha
above n
18 at paras 28-9.
[35]
Id.  This Court held that section 66(1)(a)
of the Magistrates Court Act 32 of 1944 was unconstitutional to the
extent that
it failed to insist on judicial oversight of sales in
execution against immovable property of judgment debtors.  As a
result
the Act permitted vulnerable judgment debtors to be deprived
of existing access to adequate housing in the absence of judicial

determination which constituted an unjustifiable limitation of
section 26(1) of the Constitution.  (Although reference will

only be made to Ms Jaftha in the text, that should not be understood
to suggest that Ms Van Rooyen’s case does not deserve
equal
attention.  This is done only for the sake of brevity.)
[36]
Id at paras 20-1.  See also
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC)
(
Grootboom
)
at para 23:
“
All
the rights in our Bill of Rights are inter-related and mutually
supporting.  There can be no doubt that human dignity,
freedom
and equality, the foundational values of our society, are denied
those who have no food, clothing or shelter.  Affording

socio-economic rights to all people therefore enables them to enjoy
the other rights enshrined in Chapter 2.  The realisation
of
these rights is also key to the advancement of race and gender
equality and the evolution of a society in which men and women
are
equally able to achieve their full potential.”
See also
Khosa
above n 18 at para 40 and
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para 705.
[37]
Jaftha
above n
18 at para 27.
[38]
Id.  See also
Grootboom
above n 36 at para 34.  This
Court has repeatedly acknowledged the negative obligation imposed by
the socio-economic rights.
See, for example,
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) at
para 46 and
Ex Parte Chairperson of the
National Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996
[1996]
ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 78.
[39]
Jaftha
above n
18 at para 34.
[40]
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC)
(
Harksen v Lane
)
at para 50.
[41]
Section 21 of the Land Act entitles the purchaser
to be notified to take transfer of land when such land is attached
or the owner
becomes an insolvent.  Section 22 entitles the
purchaser to the transfer of land when such land is attached or the
owner
becomes an insolvent.
[42]
Harksen v Lane
above n 40 at para 53.  In this
case the Court applied the equality provision in section 8 of the
interim Constitution.  However,
this Court has affirmed several
times that the equality analysis under section 8 of the interim
Constitution applies equally
to the equality provision found in
section 9 of the Constitution.  For example, see
National
Coalition
above n
18 at para 15.  See also
Van
der Merwe v Road Accident Fund and Another
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) (
Van
der Merwe
) at para
42.
[43]
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6)
BCLR 759
(CC) (
Prinsloo
)
at paras 24-8.
[44]
Ngewu and Another v Post Office Retirement
Fund and Others
[2013] ZACC 4
;
2013
(4) BCLR 421
(CC) (
Ngewu
).
[45]
24 of 1956.
[46]
21 of 1996.
[47]
See [60].
[48]
88 of 1984.
[49]
Van der Merwe
above
n 42 at para 32.
[50]
Id at para 33.
[51]
Id at para 49.
[52]
Prinsloo
above n
43 at paras 25-6.
Ackerman J explained the expectations
of the constitutional state in respect to rationality at para 25.
[53]
Van der Merwe
above
n 42 at para 49.
[54]
See
Jaftha
above n 18 at para 39;
Van der Merwe
above n 42 at para 58; and
Ngewu
above n 44 at para 17 respectively
.
[55]
Van der Merwe
above n 42 at para 62.
[56]
Id at paras 54-5 and 63.  In
Van
der Merwe
this Court held that there
was no rational basis for the scheme of the Act not to grant redress
in the form of patrimonial damages
covered by spousal violence in
circumstances where the amount for those damages would in any event
accrue exclusively to the
battered spouse.  The absurdity was
worsened by the entitlement of those married out of community of
property to those benefits
to the exclusion of those married in
community of property in circumstances where the claim lies against
a third party.
This rendered the anomaly and arbitrariness
even more startling.
[57]
Ngewu
above n 44
at para 17.
[58]
Jaftha
above n
18 at para 39.
[59]
See
Jaftha
above n 18 at para 48.
[60]
Id at para 61.
[61]
See
Mistry v Interim
Medical and Dental Council of South Africa and Others
[1998] ZACC 10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC) at
para 41.  See also
S v Bhulwana; S
v Gwadiso
[1995] ZACC 11
;
1996 (1) SA
388
(CC);
1995 (12) BCLR 1579
(CC) at para 32:
“
Central to a
consideration of the interests of justice in a particular case is
that successful litigants should obtain the relief
they seek. It is
only when the interests of good government outweigh the interests of
the individual litigants that the Court
will not grant relief to
successful litigants. . . .
As a
general principle, therefore, an order of invalidity should have no
effect on cases which have been finalised prior to the
date of the
order of invalidity
.”
(Emphasis added.)
This passage, or parts of
it, has been quoted with approval on numerous occasions.  See
Engelbrecht v Road Accident Fund & Another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC) at para 45;
National
Coalition
above n 18 at para 94;
S v Mello
[1998] ZACC 7
;
1998 (3) SA 712
(CC);
1998 (7) BCLR 908
(CC) at para 13; and
S v
Ntsele
[1997] ZACC 14
;
1997 (2) SACR 740
(CC);
1997 (11) BCLR
1543
(CC) at para 14.  The reasoning has been followed in
Scagell and Others v Attorney-General, Western Cape & Others
[1996] ZACC 18
;
1997 (2) SA 368
(CC);
1996 (11) BCLR 1446
(CC) at
paras 35-6;
S v Julies
[1996] ZACC 14
;
1996 (4) SA 313
(CC);
1996 (7) BCLR 899
(CC) at para 4;
Brink v Kitshoff NO
[1996]
ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 54 and
S v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2) SA 464
(CC);
1996 (3) BCLR 293
(CC) at para 31.
[62]
Ngewu
above n 44
at para 21;
Minister of Home Affairs
and Another v Fourie and Another (Doctors for Life International and
Others, Amici Curiae); Lesbian and
Gay Equality Project and Others v
Minister of Home Affairs and Others
[2005]
ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) at para 162;
Lawyers for Human Rights
above
n 18 at para 45;
Khosa
above
n 18 at para 95; and
National Coalition
above n 18 at para 26.
[63]
National Coalition
id
at para 66.
[64]
Id at para 76.
[65]
See
Coetzee v
Government of the Republic of South Africa; Matiso and Others v
Commanding Officer Port Elizabeth Prison, and Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10)
BCLR 1382
(CC) at para 16 where the test for severance is set out:
“
Although
severability in the context of constitutional law may often require
special treatment, in the present case the trite
test can properly
be applied: if the good is not dependent on the bad and can be
separated from it, one gives effect to the good
that remains after
the separation if it still gives effect to the main objective of the
statute.”  (Footnote omitted.)
See
also
Johannesburg
City Council v Chesterfield House
(Pty)
Ltd
1952 (3) SA 809
(A) at 822D-E and
S v Lasker
1991
(1) SA 558
(C) at 566A-C.
[66]
Jaftha
above n
18 at para 56.
[67]
Id.
[68]
Prinsloo
above n
43 at para 25.
[69]
Van der Merwe
above
n 42 at para 49.
[70]
Prinsloo
above n
43 at para 25.
[71]
Id.
[72]
Van der Merwe
above
n 42 at para 80.
[73]
Id at para 45.
[74]
Id at paras 52-4.
[75]
Id at paras 56-7.
[76]
Ngewu
above n 44
at para 17.
[77]
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC);
2004 (12) BCLR 1268
(CC) at para 21.
[78]
Section 26(1) and (2).
[79]
Section 26(3).
[80]
19 of 1998.
[81]
In general, a contract is not terminated by the
sequestration of the estate of one of the parties.  See Mars
The Law of Insolvency in South Africa
9 ed (Juta & Co Ltd, Cape Town 2008) at 222.
[82]
The purchaser’s vulnerable position in an
insolvency that takes place after the purchase is vividly described
by Trengove
JA in the passage quoted at [23] from
Glen
Anil Finance
above n 17 at 182D-H.
[83]
Section 4(6).
[84]
The trustee’s answering affidavit states
that “[a]n order for the eviction of the applicant was brought
and was in
fact granted.  That order stands.”
However, Ms Sarrahwitz’s founding papers in this Court merely
allude
to the application for eviction but do not record it as in
fact granted.  Neither do the trustee’s opposing papers
in the High Court explicitly state that the eviction order was
actually granted.  Therefore, additional evidence about when

the eviction order was granted and by which court is pertinent.