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Should the Alienation of Land Act 68 of 1981 be amended to Address Homelessness? Sarrahwitz v Maritz 2015 8 BCLR 925 (CC)

A Heyns* and BO Mmusinyane**

Pioneer in peer-reviewed, open access online law publications

Author

Anri Heyns

Boitumelo Mmusinyane

Affiliation

University of South Africa

Email vniekerk.anri@gmail.com mmusibo@unisa.ac.za

Date published

5 December 2017

Editor Prof AA du Plessis

How to cite this article

Heyns A and Mmusinyane B "Should the Alienation of Land Act 68 of 1981 be amended to Address Homelessness? Sarrahwitz v Maritz 2015 8 BCLR 925 (CC)" PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1540

Copyright

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DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1540

Abstract

This case note evaluates the judgment of the Constitutional Court in Sarrahwitz v Maritz 2015 8 BCLR 925 (CC). The authors evaluate the decision of the Constitutional Court to resort to the amendment of the Alienation of Land Act 68 of 1981 to protect a vulnerable purchaser of property against homelessness. It is argued that the origins and purpose of the Act should have been considered by the Constitutional Court. Such consideration shows that the Act protects against a specific vulnerability that an instalment-sale purchaser faces, and deals with the right to take transfer. This vulnerability is not necessarily homelessness and it is, therefore, questioned whether the Act can be applied to give effect to section 26 of the Constitution of the Republic of South Africa, 1996.

This contribution further argues that an alternative solution could have been developed, in line with constitutional values and the common law provision that provides the trustee of the insolvent estate with the discretion to cancel a sale agreement pertaining to property sold but not yet transferred. It is submitted that the minority judgment's reliance on the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 provided the best solution in this instance.

Keywords

Alienation of Land Act; right to obtain transfer of land; instalment sale agreement; sections 25(1), 39(2) and 26 of the Constitution; insolvency; common law; transfer of property from insolvent estate; development of common law; homelessness and vulnerability.

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1 Introduction

This contribution evaluates the judgment of the Constitutional Court (hereafter the CC) in Sarrahwitz v Maritz.1 As a result of Ms Virginia Sarrahwitz's (hereafter Sarrahwitz) homelessness and vulnerability, the CC ruled that certain sections of the Alienation of Land Act2 had to be amended to protect a vulnerable purchaser of property against the effects of the common law, where the seller becomes insolvent before the transfer of the property has taken place.3

* Anri Heyns. B Com (Law) (UP) LLB (UP) LLM (UP). Lecturer in Private Law at the University of South Africa. E-mail: vniekerk.anri@gmail.com.

** Boitumelo Mmusinyane. LLB (Vista) LLM (UP) LLD (UNISA). Senior Lecturer in Private Law University of South Africa, Diploma in Human Rights Law (Abo Akademi University); Advanced Programme in Labour Law (UNISA). Email mmusibo@unisa.ac.za. The authors whould like to thank Jeannie van Wyk for her extensive guidance and support in finalising this publication.

1 Sarrahwitz v Maritz 2015 8 BCLR 925 (CC) (hereafter Sarrahwitz).

2 Alienation of Land Act 68 of 1981 (hereafter the Land Act).

3 Sarrahwitz par 69.

4 Gordon v Standard Merchant Bank Ltd 1980 2 All SA 213 (C) 215, 219-220 (hereafter Gordon). Also see Harris v Trustee of Buissinne (1828-1849) 2 Menz 106, 108, 109 (hereafter Harris).

5 Before amendment in terms of the CC's judgment in Sarrahwitz, "contract" was defined in s 1 of the Land Act as "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". It furthermore "includes any agreement or agreements which together have the same import, whatever form the agreement or agreements may take".

6 Section 22(1) of the Land Act. The purchaser, however, must arrange for the payment of certain costs as set out in s 22(1) and s 22(2).

7 Sarrahwitz pars 66-68.

The common law determines that the trustee of the insolvent estate of an owner who has sold but not yet transferred property has the discretion to give effect to the sale or to cancel it.4 Sections 21 and 22 of the Land Act protect the interests of the purchaser in such a situation by providing that if the purchaser bought the property in terms of a "contract"5 - where payment of the purchase price is made in instalments - such a purchaser is entitled to take transfer of the property.6 After the CC's judgment in Sarrahwitz, this protection has been extended to a purchaser who paid the purchase price in a once-off payment. The CC held that the differentiation by the Land Act between instalment-sale purchasers and purchasers such as the applicant infringed the right to equality before the law and the equal protection of the law. The differentiation also infringed the applicant's constitutional right of access to adequate housing (section 26).7

Homelessness and inequality remain major unresolved problems in the South African society despite the protection afforded by the Constitution8 to the rights to equality (section 9) and access to adequate housing (section 26). Sarrahwitz9 confirms that the realisation of these rights underpins the right to human dignity (section 10). This decision shows that the CC, as the guardian of the Bill of Rights, can be expected to embrace every opportunity to combat and prevent both homelessness and inequality.

8 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).

9 Sarrahwitz par 42; Jaftha v Schoeman; Van Rooyen v Stolz 2005 2 SA 140 (CC) (hereafter Jaftha); Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) (hereafter Grootboom).

10 Sarrahwitz pars 34-39.

11 See the discussion at 5 below.

12 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE).

13 In compliance with s 39(2) of the Constitution, which provides that every court, tribunal or forum must promote the values and purpose of the Bill of Rights when it interprets legislation or develops the common law or customary law.

14 See fn 13 above.

This contribution critically analyses the view of the majority judgment that uninformed, financially constrained purchasers, vulnerable because they face homelessness, should fall within the ambit of sections 21 and 22 of the Land Act irrespective of the method of payment of the purchase price.10 It is argued that the legislator made patent provision for the protection of instalment-sale purchasers, to the exclusion of other purchasers, for a specific reason. It is also argued that the Land Act in general and sections 21 and 22 in particular essentially deal with the transfer of property. These legislative provisions are, therefore, not suitable to give effect to section 26 of the Constitution either by providing housing or avoiding illegal eviction. The right to claim transfer - as a possible section 25 property right11 - ought to be distinguished from the right to access to adequate housing and the right not to be evicted without a court order as provided for under section 26 of the Constitution. Moreover, as was argued in the minority judgment, suitable legislation to protect against homelessness already exists. By applying the Prevention of Illegal Eviction and Unlawful Occupation Act,12 the trustee's discretion would have been aligned with the values that underlie the Constitution.13

This contribution also considers the role of section 39(2) of the Constitution and contemplates how the CC should have considered the development of the common law in this case.14

2 Facts

Sarrahwitz was a poor woman who, when the matter was heard, was unemployed and headed a household comprising her daughter and granddaughter. She entered into a written deed of sale with Reynier Posthumus (hereafter Posthumus) on 17 September 2002 in terms of which she purchased a property in Booysens Park, Port Elizabeth (hereafter the property). She took occupation of the property on 1 October 2002 and paid R 40 000 as the full purchase price, which she borrowed from her employer. Posthumus undertook to arrange for transfer into her name. After countless attempts to follow up with the attorneys appointed by Posthumus, and more than a year after the deed of sale was entered into, Sarrahwitz had still not received any feedback.15

15 Sarrahwitz par 5.

16 Sarrahwitz pars 6, 7.

17 Sarrahwitz v Maritz 2013 ZAECGHC 10 (7 February 2013).

18 Sarrahwitz v Maritz 2013 ZAECGHC 10 (7 February 2013) par 14. Also see Sarrahwitz par 9.

In 2005 Sarrahwitz instructed attorneys to determine the reason for the delay in the transfer. It transpired that while Posthumus had signed all the transfer documents his municipal accounts were in arrears. As a result, the municipal rates clearance certificate could not be issued, barring the transfer of the property. Sarrahwitz paid the outstanding amount in instalments, but instead of crediting the payments against the municipal account for the property Sarrahwitz had purchased, the payments were credited to the accounts of other properties owned by Posthumus.16

Posthumus's estate was sequestrated on 18 April 2006 and Maritz, the respondent in this case, was appointed as the trustee (hereafter the Trustee) of the insolvent estate. On various occasions Sarrahwitz attempted to have the Trustee authorise the transfer of the property. Having been unsuccessful, she launched an application in the Eastern Cape High Court (hereafter the HC) in 2012, seeking an order directing the Trustee to perform in terms of the deed of sale and to have the property transferred into her name in terms of sections 21 and 22 of the Land Act.17 The HC held that the Land Act was not applicable and that transfer had to take place in terms of the common law, providing the Trustee with the prerogative to cancel the sale agreement.18

Sarrahwitz then applied for leave to appeal to the full bench of the HC and the Supreme Court of Appeal (hereafter the SCA). It was only at this stage

that she argued for the development of the common law based on certain constitutional grounds.19 She was denied leave to appeal because the Trustee, the HC and SCA had not had the opportunity to consider the arguments based on the development of the common law. Sarrahwitz subsequently made an application to the CC.20

19 Sarrahwitz par 10 fn 5. The challenge was based on ss 9-10, 25-26 and 33 of the Constitution.

20 Sarrahwitz par 11.

21 Sarrahwitz pars 67-68.

22 Sarrahwitz par 70.

23 Sarrahwitz par 1.

Mogoeng CJ's majority judgment found in favour of Sarrahwitz. The CC held that the exclusion by the Land Act of the transfer of a house from an insolvent estate to a vulnerable purchaser such as Sarrahwitz, who had paid for it within one year, was unconstitutional and accordingly invalid. The decision was made because this exclusion caused the homelessness of a vulnerable person such as Sarrahwitz.21 The CC held that sections 21 and 22 of the Land Act irrationally differentiated between a person in Sarrahwitz's position and an instalment-sale purchaser. In the court's view, the differentiation justified the severance and reading-in of words into the Land Act to address the constitutional invalidity.22

The discussion of the CC's approach to the Land Act and the manner in which it has been amended is preceded by a brief outline of the history and purpose of the Land Act.

3 The Alienation of Land Act

3.1 Introduction

Sarrahwitz was prevented from taking transfer of the property for a period of four years until the seller's estate was sequestrated. One can agree with the underlying sentiment expressed in the judgment that the Constitution should somehow come to the aid of a person such as Sarrahwitz. However, it is argued that the amendment of the Land Act was not necessarily a suitable remedy. Mogoeng CJ confirmed that the matter pivoted on "vulnerability and homelessness" and used these notions to justify the amendment of the Land Act to assist Sarrahwitz.23 Two questions arise in this regard: What kind of vulnerability are the protective measures of the Land Act aimed at and does the purpose of the Land Act include the prevention of homelessness? Both questions involve determining the reason why the impugned sections of the Land Act applied to instalment-

sale purchasers only, and not to purchasers who paid the full purchase price in a one-off payment.

The judgment needs to be investigated for the effect it has on the operation of the Land Act and the jurisprudence it creates. Therefore, the history and purpose of the Land Act, specifically sections 21 and 22, as well as the context within which the Land Act and its predecessors were created, is described. The CC's reason for focussing on the Land Act as providing Sarrahwitz with a remedy is considered. In this regard, the difference between the forfeiture of a right to take transfer of a property and homelessness is discussed and the possible effects of the amendment ordered are examined.

3.2 History and purpose of the Land Act

The Land Act has its origins in the General Law Amendment Act,24 which was the first statute to prescribe formalities for the sale of land in all four provinces.25 At that time, purchasers of land on instalments acquired protection in terms of section 72 of the Insolvency Act of 1916.26 To enforce this provision, an instalment-sale purchaser had to have paid a substantial part of the purchase price while the seller was still solvent. The instalment-sale purchaser, therefore, was not protected against the most substantial risk it faced: that the seller became insolvent before the purchaser became entitled to claim transfer of the land.27

24 General Law Amendment Act 68 of 1957.

25 Cohen Section 19 of the Alienation of Land Act 7-8; Van Rensburg and Treisman Practitioners' Guide to Alienation of Land Act 22. Legislation dating before the unification of South Africa in 1910 regulating the formalities for the alienation of land was concerned mostly with the payment of transfer duty. Since the enactment of the Transfer Duty Act 40 of 1949, however, fiscal matters and the formalities for the alienation of land have been regulated in separate legislation.

26 Insolvency Act 39 of 1916. The Insolvency Act 24 of 1936 did not repeal this section initially. Cohen Section 19 of the Alienation of Land Act 11-12

27 Cohen Section 19 of the Alienation of Land Act 12.

28 Formalities in Respect of Contracts of Sale of Land Act 71 of 1969 (hereafter Formalities Act).

29 Cohen Section 19 of the Alienation of Land Act 15.

The General Law Amendment Act was repealed by the Formalities in Respect of Contracts of Sale of Land Act.28 Both statutes were aimed at preventing disputes relating to the sale of land.29 At that stage, however, the law did not contain real protection for purchasers, as it did not explicitly provide for the consequences of non-compliance with the formalities

prescribed.30 Moreover, it did not provide for purchasers paying in instalments who were unable to obtain transfer when the seller became insolvent.31

30 Cohen Section 19 of the Alienation of Land Act 16; Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 73.

31 Cohen Section 19 of the Alienation of Land Act 17.

32 Natrass and Seekings "Economy and Poverty"; De Vynck 2003 http://www.rode.co.za/publications/demos/RT_2003-1_-_07_-_Property_C.pdf.

33 Cohen Section 19 of the Alienation of Land Act 14.

34 Brummer 1993 http://www.housingfinance.org/uploads/Publicationsmanager/9306_Sou.pdf. At that point, mortgage finance could be obtained from a building society. Unlike banks, building societies are mutual institutions, meaning that the persons using the services of the society are also members of the society. Barclays, a commercial bank, started providing mortgage finance in South Africa only after the mid-1960's, which meant the end of building societies. Verhoef "Financial Intermediaries in Settler Economies" 424.

35 Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 4-5. As illustrated in Sarrahwitz, the common-law principle providing the trustee of the insolvent estate with the discretion to abide by the instalment-sale agreement or not puts the purchaser in a precarious position.

36 Cohen Section 19 of the Alienation of Land Act 15.

37 Sale of Land on Instalments Act 72 of 1971 (hereafter Instalments Act). Cohen Section 19 of the Alienation of Land Act 16; Van Rensburg and Treisman Practitioners' Guide to Alienation of Land Act 4.

38 Cohen Section 19 of the Alienation of Land Act 17.

39 Merry Hill (Pty) Ltd v Engelbrecht 2008 2 SA 544 (SCA) par 13 (hereafter Merry Hill). On the Act's being depicted as consumer-protection legislation, see further 3.3 below.

During the 1960s South Africa's economy experienced increased growth,32 which created a greater demand for township development and a resultant increase in the use of instalment-sale agreements.33 Instalment-sale agreements were often opted for because of the difficulty of acquiring finance for purchasing property.34 Many new entrants into the market were not necessarily aware of the risks associated with instalment-sale agreements.35 Standard forms of contracts were used that did not provide protection for purchasers.36 The Instalments Act was subsequently enacted in 1971.37 Its long title read as follows:

To regulate contracts of purchase and sale of certain kinds of land under which the purchase price is payable in instalments over a period of one year or longer and to provide for matters incidental thereto.38

In line with Brand AJ's depiction of the Land Act and its predecessor as consumer protection legislation in Merry Hill (Pty) Ltd v Engelbrecht,39 the purpose of the Instalments Act has been compared to that ascribed to the

Hire Purchase Act40 by Millin J in Smit and Venter v Fourie,41 namely to protect against

40 Hire Purchase Act 36 of 1942.

41 Smit and Venter v Fourie 1946 WLD 9; Cohen Section 19 of the Alienation of Land Act 17.

42 Cohen Section 19 of the Alienation of Land Act 18; Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 6.

43 Sarrahwitz par 36.

44 Section 20 of the Instalments Act.

45 Cohen Section 19 of the Alienation of Land Act 19.

46 Botha v Rich 2014 4 SA 124 (CC) (hereafter Botha) par 30.

47 Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 1. The Instalments Act was amended almost immediately after coming into effect by Act 72 of 1972 to rectify certain drafting errors. A further Amendment Act 49 of 1975 replaced eight of the sections of the original Instalments Act.

48 Cohen Section 19 of the Alienation of Land Act 21; Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 2.

49 Botha par 30.

50 Cohen Section 19 of the Alienation of Land Act 21; Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 2, 7-9. Also see Otto 2010 Fundamina 266.

51 The discussion on the Land Act which follows refers to the Act before the amendments were made in terms of Sarrahwitz.

the mischief of poor persons being enticed into shops and being sold goods of more or less value at prices which they can ill afford to pay, and on terms which are harsh and unconscionable, and it was intended to give protection to such persons against their own improvidence and folly.

The Instalments Act contained section 14, which specifically protected the rights of the instalment-sale purchaser where the seller became insolvent42 in the same manner that sections 21 and 22 of the Land Act do.43 It also made provision for the recording of the contract44 by the Registrar of Deeds, providing the purchaser with a preferential claim in respect of the proceeds from the sale of land in the event of a sale in execution due to the insolvency of the seller.45

The Instalments Act was not without its problems, however,46 and was amended on a number of occasions.47 The legislation faced its most challenging test when the property industry experienced a significant downward turn in the 1970s,48 causing the collapse of many township-development companies.49 It became evident that the Instalments Act was not able to fulfil its purpose, which was to protect purchasers against abuse by large property developers.50 In 1982 it was repealed by the Land Act51

as a result of the recommendations of a commission of inquiry appointed to investigate its efficacy.52

52 Botha par 31; Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 2. The Development Schemes Bill (GN 1964 in GG 5745 of 23 September 1977) attempted to address the inadequacies of the Instalments Act. The Commission of Inquiry into the Development Schemes Bill was created to investigate the subject matter of the bill and the Land Act was the result of these investigations.

53 Section 1(1) of the Land Act.

54 Section 1(1) of the Land Act, definition of "land"; Sarrahwitz par 34.

55 Section 1(1) of the Land Act.

56 The definition as it was before the amendments ordered in Sarrahwitz.

The preamble of the Land Act determines that its purpose is:

(T)o regulate the alienation of land in certain circumstances and to provide for matters connected therewith.

"Alienate" is defined as to sell, exchange or donate land irrespective of the sale, exchange or donation being subject to a suspensive or resolutive condition.53 The meaning of "land" depends on the relevant chapter of the Land Act. In other words, not all the chapters of the Land Act are applicable to all the categories of land. For the purposes of Chapter II - that contains sections 21 and 22 - land refers mainly to land used for residential purposes, as was also confirmed by Mogoeng CJ in Sarrahwitz.54 The meaning of "certain circumstances" in the preamble to the Land Act, therefore, will depend on the chapter of the Land Act that is relevant.

Since the preamble to the Instalments Act (and its title) made specific mention of instalment-purchase agreements, it follows that the ambit of the Land Act is broader than that of the Instalments Act. The distinction between an instalment sale and a once-off payment sale, however, remains.

The Land Act differentiates between a "deed of alienation" and a "contract".55 A "deed of alienation" is a document or documents in terms of which land is alienated. A "contract" is a deed of alienation whereby the purchase price is paid in more than two instalments over a period exceeding one year.56 Thus, whereas a contract is always a deed of alienation, a deed of alienation is not always a contract. The provisions of the Land Act referring to a deed of alienation, therefore, will include contracts. Where the Land Act specifically refers to contracts, the provision will however be applicable only to a "contract"; namely, where the purchase price is paid in more than two instalments over a period exceeding one year.

The structure of the Land Act also confirms this differentiation. Chapter I deals with the formalities in respect of the deed of alienation that would

include a "contract". Chapter II's heading states that it deals with the sale of land on instalments, yet throughout the chapter, reference is made to a contract. Consequently, only contracts, or instalment sales, will fall within the ambit of Chapter II.57

57 Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 91 confirms that the objective of Chapter II is to afford instalment-sale purchasers protection against the hardships caused for such purchasers, specifically where the seller becomes insolvent or if the land is attached by a judgment creditor of the owner.

58 Section 20(2)(b) of the Land Act.

59 Section 20 of the Land Act.

60 Section 27 of the Land Act.

61 Botha v Rich 2014 4 SA 124 (CC).The CC had to interpret s 27 of the Land Act. It provides for the right of a purchaser to demand transfer of the land purchased and paid for in instalments, if it has paid not less than 50 per cent of the purchase price.

62 Botha pars 30-31.

63 Botha par 40. Nkabinde J confirmed that the "(Land) Act is premised on an instalment-sale agreement of immovable property between a purchaser and seller".

Section 20 determines that a contract must be recorded by the registrar of deeds within a certain time. If a contract is recorded, the registrar may not register the transfer of land to which the contract relates to any person other than the purchaser.58 The recording of a contract also provides the purchaser with a preferential claim in certain instances regarding the proceeds of the sale of the land to which the contract relates.59 Sections 21 and 22 provide protection for persons who purchase land in terms of a contract where the land becomes attached or the owner becomes insolvent.

Chapter III includes general provisions, which pertain to deeds of alienation. Section 27, which forms part of Chapter III, provides for the right of the purchaser who has paid at least 50 per cent of the purchase price to demand from the seller the transfer of the land.60

The legislative development leading up to the Land Act and the current structure of the Land Act articulate a certain kind of vulnerability that the legislator attempted to protect. In Botha v Rich,61 the only other case that required the interpretation of the Land Act by the CC, Nkabinde J considered the background and reason for the enactment of the Act.62 She concluded that the Land Act, and specifically section 27(1), is aimed at the protection of the rights of a purchaser who has paid the purchase price for immovable property in part.63

The structure provided by the Land Act is still often used by property developers to earn interest on their capital investment or to pay off a

development bond where a development takes place in phases.64 Purchasers opt for purchasing property in terms of instalment-sale agreements when finance cannot be obtained from a commercial bank due to the stringent requirements of the National Credit Act 34 of 2005, or if sufficient cash for a deposit required by a commercial bank before finance is provided is unavailable.65 The Land Act and the instalment-sale mechanism it provides, therefore, serve an important purpose today still, to provide access to the property market to many who would otherwise not be able to enter it.66

64 Krűger Instalment Sales Agreement 48, 49.

65 Krűger Instalment Sales Agreement 15, 41.

66 See in general Krűger Instalment Sales Agreement.

67 Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen Anil Development Corporation Ltd (in liquidation) 1981 1 SA 171 (A) (hereafter Glen Anil); Sarrahwitz par 36. In Glen Anil the court had to determine the rights and duties of a cessionary of the rights of an owner of land subject to a deed of sale falling within the definition of a "contract" provided for in the Instalments Act.

68 Sarrahwitz par 37.

69 In Glen Anil.

70 In Merry Hill.

71 Glen Anil 183F-H.

72 Merry Hill par 13.

73 Glen Anil 183G; Sarrahwitz par 36. In Glen Anil the court had to determine the rights and duties of a cessionary of the rights of an owner of land subject to a deed of sale falling within the definition of a "contract" provided for in the Instalments Act.

3.3 The CC's approach to the Land Act

In Sarrahwitz Mogoeng CJ bases his understanding of the vulnerability for which the Land Act provides on Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen Anil Development Corporation Ltd (in liquidation)67 and Merry Hill.68 These cases refer specifically to "contracts" as defined in the Instalments Act69 and Land Act70 respectively, namely contracts in terms of which the purchase price is paid in at least two instalments over a period of longer than a year. Although both Glen Anil71 and Merry Hill72 refer to the hardship and misfortune coupled with losing a residential stand, it seems as if these cases associate the unfortunate consequences of the common-law provision specifically with instalment-sale purchasers.

In Glen Anil, Trengove AJ scrutinised section 14 of the Instalments Act. According to him, the "mischief" at which it was directed was to avoid the hardship and misfortune suffered by the purchasers of residential property because of the common law (as it was before the enactment of the Instalments Act).73 The common law caused an instalment-sale purchaser to be at risk of losing the land and the instalments already paid where the

seller of the land became insolvent or where the relevant land was sold in execution.74 Trengove AJ found that Parliament changed the law with the intention to provide for contracts where land to be used for residential purposes75 was sold and the purchase price paid in more than two instalments over a period of more than one year.76 Mogoeng CJ agreed with Trengove AJ's description of the "mischief" at which the Instalments Act was directed.77 However, he only emphasised the section speaking to the use of the property purchased for residential purposes – no mention is made of the fact that Trengove AJ's argument also pertained specifically to instalment-sale purchasers.78

74 Glen Anil 183F-H; Sarrahwitz par 36.

75 Section 1 of the Instalments Act, definition of "land".

76 Glen Anil 183H.

77 Sarrahwitz par 38; s 1 of the Instalments Act, definition of "land".

78 Sarrahwitz par 36.

79 Merry Hill par 13. Brand AJ also referred to Trengove JA in Glen Anil.

80 Merry Hill par 13.

81 Consumer Protection Act 68 of 2008.

82 National Credit Act 34 of 2005.

83 Rental Housing Act 50 of 1999.

84 The Long Term Insurance Act 52 of 1998 and the Short Term Insurance Act 53 of 1998.

85 Woker 2010 Obiter 226; Otto 2010 Fundamina 266. An instalment-sale purchaser is, for instance, a consumer protected in terms of the Land Act against, amongst other things, unfair contract terms, abuses and malpractices similar to those to which hire-purchasers have been subjected, and the insolvency or liquidation of the seller.

86 For instance, in terms of s 3 of the National Credit Act the purposes of the Act include, amongst other aspects, "addressing and correcting imbalances in negotiating power between consumers and credit providers" ((3)(e)), "improving consumer credit

In Merry Hill Brand AJ held that Chapter II of the Land Act, containing sections 21 and 22, specifically protects a purchaser paying in instalments for land to be used for residential purposes.79 He described the Act as "consumer protection legislation" that ought to protect "the vulnerable, uninformed small buyer of residential property who is no match for the large developer in a bargaining situation".80

Consequently, the Land Act can be compared with legislation such as the Consumer Protection Act,81 the National Credit Act,82 the Rental Housing Act83 and other consumer protection legislation.84 Each of these statutes identifies a specific "consumer", usually based on such a person's vulnerable position because of the nature of the transaction it enters into and its potential lack of knowledge.85 Consumer protection legislation serves to protect consumers against exploitation by the industry to which the specific legislation applies.86 The National Credit Act and the Consumer

information" and "addressing and preventing over-indebtedness of consumers" ((3(g)).

87 Chapter 2 of the Consumer Protection Act provides for the consumer's fundamental rights and s 8(1) refers to the right to equality protected in terms of s 9 of the Constitution. The National Credit Act acknowledges historically disadvantaged persons, disadvantaged by unfair discrimination on the basis of race, in so far as it relates to the credit industry, and refers to the Constitution in this regard in s 2(6).

88 Sarrahwitz par 38.

89 In terms of the Land Act, a transaction will qualify as a "contract" if payments are made over more than one year. It can therefore be assumed that the period over which instalments are paid will be longer than one year.

90 Van Rensburg and Treisman Practitioners' Guide to the Alienation of Land Act 183; Ghandi v SMP Properties (Pty) Ltd 1983 1 SA 1154 (D) pars 1157F-1158E confirmed that if a contract determines that a purchase price is payable in cash, the purchaser will effect payment of the purchase price against the transfer of the land into the purchaser's name, except if the contract includes a provision which explicitly provides to the contrary. The obligation of the purchaser may be fulfilled by providing the seller with an acceptable guarantee.

Protection Act, were introduced after the enactment of the Constitution and operate from a basis of constitutional values.87 Nevertheless, these acts cannot protect against vulnerability in the broadest sense possible. Each of them identifies a specific consumer who is vulnerable in a specific manner, and lays down mechanisms to protect the rights afforded to such a consumer.

The authors agree with Mogoeng CJ that the "uninformed small buyer" referred to by Brand AJ in Merry Hill may "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" and may very well be a "vulnerable and financially constrained buyer".88 Is there not, however, a specific risk the instalment-sale purchaser faces that creates a specific kind of vulnerability the Land Act wishes to address? A purchaser paying the purchase price for land in instalments faces a risk that is different from a purchaser paying the purchase price in one lump sum. Whereas a lump-sum purchaser can claim transfer immediately after payment of the purchase price, years can go by before an instalment-sale purchaser has paid all the instalments and becomes eligible to take transfer.89 The chances of the seller's becoming insolvent during the period between entering into the sale agreement and the payment of the final instalment are therefore bigger than in the case of a lump-sum purchaser. A lump sum or cash purchaser can claim transfer upon payment, thereby mitigating the risk of being exposed to the seller's insolvency.90 Clearly, an instalment purchaser requires specific protection that a purchaser making a lump-sum payment does not necessarily require.

It could be argued, however, that once the seller does, in fact, become insolvent and transfer has not yet taken place, the lump-sum purchaser is in the same or even worse position than the instalment-sale purchaser. Upon the insolvency of the seller, the lump-sum purchaser stands to lose not only the opportunity to own the property it has purchased, but also the entire purchase price already paid, as was the case in Sarrahwitz.

Could the latter argument then justify extending the protection of Chapter II of the Land Act to a vulnerable lump-sum purchaser? It has to be emphasised once again that Chapter II of the Land Act is a response to a specific situation where purchasers cannot obtain finance to purchase property.91 The structure of Chapter II, therefore, is aimed at instalment-sale purchases. To extend the protection provided for in Chapter II to a purchaser in Sarrahwitz's situation would be nonsensical, as is explained in section 3.4 below. If the Land Act is to provide for lump-sum purchasers as well, it cannot do so in Chapter II. Qualifying the inclusion to pertain to a purchaser who is able to pay the entire purchase price "within one year of the contract"92 and who would face homelessness because of the seller's insolvency93 also does not justify an extension. As will be argued in section 5 below, the legislation in place to prevent homelessness will be more suitable to provide protection to someone in Sarrahwitz's situation.

91 See s 3.2 above.

92 The definition of "contract" was amended to include "residential property paid for in full within one year of the contract, by a vulnerable purchaser" at the end of paragraph (a).

93 The definition of "vulnerable purchaser".

94 Sarrahwitz par 35.

95 Sarrahwitz par 35.

It can be argued further that while the CC in its majority decision has broadened the purpose of the Land Act by making provision for vulnerable lump-sum purchasers, it has simultaneously narrowed the purpose of the Land Act. Mogoeng CJ argues that the purpose of the Land Act could never have been to protect all instalment-sale purchasers, irrespective of their financial situation.94 The protection the Land Act affords is meant only for "vulnerable people who have no other place they could call home or lack the resources to acquire another".95 Is it possible, however, for the CC to reformulate the purpose of the Land Act in this manner? Firstly, by providing for instalment-sale purchasers Chapter II of the Land Act already caters for persons with limited financial means, who cannot obtain finance to purchase property. As indicated earlier, it is quite clear that the Land Act provides for a specific kind of vulnerability that instalment-sale purchasers face.

Secondly, to argue that homelessness justifies the reformulation of the purpose of the Land Act is also problematic, as is discussed below.

While Mogoeng CJ indicated that "a contextual and purposive interpretation" of the Land Act identifies its purpose, he considered the legislative history of the Land Act only as it had been dealt with in Glen Anil and Merry Hill.96 He did not attempt to describe the structure of the Land Act or sections 21 and 22, or the context within which the Land Act and the sections came into being. These aspects all clearly show an intention to provide specifically for instalment-sale purchasers. It is equally surprising that Botha v Rich,97 the only other case that required the CC to interpret the Land Act, was not referred to, especially in view of the fact that the CC had emphasised the importance of the purpose and background of the Land Act, and that its legislative history could assist in interpreting the impugned legislative provision.98

96 Sarrahwitz par 39.

97 The CC had to interpret s 27 of the Land Act. It provides for the right of a purchaser to demand the transfer of the land purchased and paid for in instalments, if it has paid not less than 50 per cent of the purchase price.

98 Botha par 29; Van Rensburg and Treisman Practitioners' Guide to Alienation of Land Act.

99 Sarrahwitz pars 70-78.

100 Sarrahwitz par 73.

101 Sarrahwitz par 73.

It is submitted that the CC should have performed a deeper analysis of the purpose of the Land Act, the policy considerations that resulted in its (and its predecessors') creation, and the vulnerability for which the Land Act provides. Only then would the CC have been qualified to consider extending the scope of the Land Act in the manner it did in Sarrahwitz.

3.4 Effect of the amendment ordered by the CC

The CC ordered that certain words be severed from and others read into the Land Act.99 These amendments took effect on 4 June 2015. Mogoeng CJ held that the remedy should not "seek to determine an exhaustive list of instances to be accommodated" but had to be "flexible and applicable to diverse purchasing options left out of the Land Act's protection".100 Without providing any guidance on the practical effect thereof in future and in the case of Sarrahwitz, Mogoeng CJ also held that regard had to be given to the interests of the creditors of the sequestrated estate.101

The Land Act was accordingly amended as follows: The definition of "contract" was amended by adding the words "including residential property

paid for in full within one year of the contract, by a vulnerable purchaser" to the end of paragraph (a) of the definition.102 Section 1 now includes the definition of "vulnerable purchaser" as "a purchaser who runs the risk of being rendered homeless by a seller's insolvency". Chapter II was amended by the removal of the words "on instalments" in the title of the chapter, to now read: "Sale of Land", indicating that the chapter no longer exclusively deals with instalment-sale agreements. Section 4 was amended by adding subsection (2) which reads:

102 Sarrahwitz par 74.

103 Sarrahwitz par 77.

104 Section 4(1) determines that Chapter II is not applicable to contracts in terms of which the state, the Community Development Board established in terms of the Community Development Act 3 of 1966, the National Housing Commission mentioned in s 5 of the Housing Act 4 of 1966 or the local authority is the seller. The Housing Act of 1966 has been repealed and the Land Act does not refer to the Housing Act 107 of 1997, which is based on s 26 of the Constitution and deals with the housing development process.

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 residential property paid the full purchase price within one year of the contract, before the seller's insolvency.103

As a result, Chapter II now regulates the transaction entered into by a vulnerable purchaser with a seller where the purchase price is paid over a period of less than one year, because such a transaction is included in the definition of "contract". It is uncertain, however, why the new section 4(2) is necessary. Does section 4(2) imply that the transaction of the vulnerable purchaser paying the purchase price in less than one year is regarded as a contract for the purposes of sections 21(2) and 22 only, and not for the purposes of the rest of Chapter II? Alternatively, is section 4(2) an exception to the position reflected in section 4(1)?104 Why does section 4(2) speak of the "deed of alienation" entered into by the vulnerable person if the definition of contract includes this type of deed of alienation?

The definition of a "vulnerable purchaser" causes a further complication. It is not clear at which point the purchaser will qualify as vulnerable or when it must be assessed if the purchaser is in fact vulnerable. Should a basic financial means test be performed upon entering into the contract and whose responsibility is it to ensure that this assessment is performed? The Land Act does not at present provide for this. Alternatively, it may be that sections 21(2) and 22 become applicable only if it becomes apparent upon the impending insolvency of the seller that the purchaser is vulnerable (because he or she risks becoming homeless). In other words, the pending

insolvency may be the event triggering the application of the Land Act. The latter interpretation is probably more accurate, if we take into consideration that the order of the CC is based on the failure of the Land Act to provide for the transfer of the property from the insolvent estate to avoid homelessness.

It is then not clear why the vulnerable purchaser's transaction is included as a contract. Without an explicit indication to the contrary, it must be accepted that the entire Chapter II (and any other provision of the Land Act dealing with contracts) will be applicable to the vulnerable purchaser's transaction. On the latter assumption, section 20 of the Land Act would then also be applicable. As a result, the seller must see to the recording of the contract at the Registrar of Deeds within a period of 90 days of the contract. In Sarrahwitz this would have been absurd because at that stage she was already entitled to take transfer of the property. It may therefore not make sense if Chapter II in its entirety applies to a vulnerable purchaser.

The argument that a lump-sum purchaser should be included within the ambit of the Land Act because it faces an even bigger risk than the instalment-sale purchaser faces upon the insolvency of the seller, therefore, cannot stand. The structure of Chapter II is clearly aimed at an instalment-sale purchaser, and incorporating lump-sum purchasers by merely tweaking definitions does not change this fact. It actually creates uncertainty as to how the act should be implemented. If the CC wished to redefine the purpose of the act by changing the purpose from regulating the alienation of land to preventing homelessness, it would have made more sense to provide a separate provision regulating such instances. Moreover, it can be asked if it is suitable for the CC to partake in such a redefinition exercise, given that there is legislation in place to protect against homelessness.

The minority judgment pointed out that by extending the protection provided by the Land Act, as was done by the majority judgment, the potential for more differentiation and possibly even discrimination was created.105 For example: A purchaser, making a once-off payment for a property who struggles to obtain transfer of the property because of a delay on the part of the seller, but who does not necessarily face homelessness as a result of the insolvency of the purchaser will be excluded from the protection of the amended Land Act. This purchaser may also have expended all available financial means to purchase the property but may be able to acquire assistance from a family member to avoid homelessness. If the purpose of

105 Sarrahwitz par 86.

the Land Act is considered,106 the differentiation between the latter type of purchaser and one such as Sarrahwitz cannot be justified purely because the first mentioned purchaser does not technically face homelessness.

106 See 3.3 above.

107 Sarrahwitz pars 10, 26; fn 5.

108 Gordon 219-220. Also see Harris 108-109.

109 Sarrahwitz par 9. The High Court held that the common law and not the Land Act applied to Sarrahwitz's situation.

The amendments create many questions, not all of which can be considered here. These questions not only point to the uncertainty caused by the amendments but also emphasise the fact that the amendment of the Land Act was not the suitable remedy here. Perhaps it is not the Land Act that caused Sarrahwitz's unfortunate position, but rather the common law. The next section interrogates issues around the development of the common law.

4 The common law

Mogoeng CJ regarded Sarrahwitz's application to have the common law developed as a "desperation-born attempt" and aligned it with the proposal of the Minister of Trade and Industry to amend the Land Act by showing that her case had always been about the proper interpretation of sections 21 and 22.107 Consequently, the CC did not deal with the particulars of Sarrahwitz's application for the development of the common law. It considered neither the purpose of the common law principle nor whether it is unconstitutional for the reasons alleged by Sarrahwitz. The CC furthermore did not consider how and if the common law principle could possibly be developed.

It is submitted that it is the common law principle that could violate Sarrahwitz's right to access to adequate housing and her right to take transfer of the property she had purchased. If it is accepted that the Land Act causes differentiation for a legitimate purpose, which does not include protection against homelessness, it also follows that it is not necessarily the Land Act that caused Sarrahwitz to face homelessness. The common law principle, which affords the trustee of an insolvent estate the discretion to cancel the sale agreement,108 seems to be the more obvious culprit, and requires consideration.

Sarrahwitz also realised this after her application based on sections 21 and 22 was denied by the HC.109 She subsequently based her case before the CC on the alleged unconstitutionality of the common law for excluding

someone in her position from a group of purchasers of residential property, who, in spite of the seller's insolvency, is entitled to take transfer of the property purchased.110 She also argued that the alleged unconstitutionality was even more evident from the fact that legislation such as the Land Act and its predecessors was enacted to exclude only certain persons from the effects of the common-law position.111 Consequently, an entitlement to transfer property from an insolvent seller's estate was conferred on some vulnerable instalment-sale purchasers while leaving purchasers like her unprotected. This differentiation also denied her equal protection and benefit of the law and was inconsistent with the right to equality.112

110 Sarrahwitz par 18.

111 Sarrahwitz par 19.

112 Sarrahwitz par 19.

113 Sarrahwitz par 21.

114 Sarrahwitz pars 20-21; Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC) par 52.

115 Dugard 2006 SAJHR 266-267, 272-273, 275, 278, 281-282.

116 Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) (hereafter Carmichele). In this case, the courts a quo (the High Court and the Supreme Court of Appeal) failed to consider the development of the common law by broadening the concept of "wrongfulness" in the law of delict in the light of the state's constitutional duty to protect women and children. Davis and Klare 2010 SAJHR 413.

117 Carmichele par 50.

118 Davis and Klare 2010 SAJHR 413, 414.

119 Carmichele par 39; Davis and Klare 2010 SAJHR 424. S 39(2) provides that every court, tribunal or forum must promote the values and purpose of the Bill of Rights when it interprets legislation or develops the common law or customary law.

If the CC were to have dealt with the application for the development of the common law, it would have done so as a court of first and last instance. Mogoeng CJ acknowledged that the CC would act as such in exceptional circumstances only,113 but seemingly avoided this situation by directing the focus to the Land Act.114 Sarrahwitz, however, was not the first time that the CC had had to consider the development of the common law as a court of first instance.115 In Carmichele v Minister of Safety and Security116 the CC proceeded as a court of first instance because, although it could have grave disadvantages, the question before it raised issues of considerable importance for the development of common law in line with constitutional values.117 The CC's judgment in Carmichele has been lauded for providing a basis for reforming the law and for imagining the Constitution's impact on the common law.118 It also confirmed that the court has a "general obligation" to develop the common law in an appropriate manner whenever "it (the common law) … is deficient in promoting the section 39(2) objectives".119

Nevertheless, not every common-law problem will necessarily have a specific "transformative" solution to be extracted from the Constitution's values.120 As Davis and Klare121 put it, section 39(2) is not an "oracle" and does not determine solutions or remedies, but is rather concerned with how legal problems are framed and which values and sensitivities are considered in addressing these problems.

120 Davis and Klare 2010 SAJHR 412.

121 Davis and Klare 2010 SAJHR 412.

122 Sarrahwitz pars 27-29.

123 Sarrahwitz pars 22, 24. By the time that the matter came before the CC, the Trustee had withdrawn from the matter. The submissions of the Minister therefore were the only submissions available for the CC's consideration.

124 Van der Walt 2008 CCR 100-101; South African National Defence Union v Minister of Defence 2007 5 SA 400 (CC) (hereafter SANDU) pars 51-52; Chirwa v Transnet Ltd 2008 2 SA 24 (CC) (hereafter Chirwa) par 59 (Skweyiya J), 69 (Ngcobo J); Sidumo v Rustenburg Platinum Mines Ltd 2008 2 SA 24 (CC) (hereafter Sidumo) par 248.

If, as argued here, the Land Act ought not to have been utilised to provide relief for Sarrahwitz, should the CC be criticised for not entertaining the development of the common-law argument? The justification provided for not considering the development of the common law seems rather thin. Mogoeng CJ noted the CC's duty as provided for in section 39(2), but did not indicate whether this duty related to the interpretation of the legislation or the development of the common law.122 It was the (unarticulated) policy considerations for the enactment of the Land Act and its predecessors referred to by the Minister of Trade and Industry that justified the inclusion of someone in Sarrahwitz's position in the group of purchasers protected by the Land Act.123 As a result, Sarrahwitz's argument for the development of the common law was converted into a constitutional attack of the Land Act, based on the infringement of section 26 of the Constitution, before the argument was discussed in any detail, making it unclear how she proposed that the common law should be developed.

However, in the instance where the infringement of a constitutional right is averred, a litigant cannot directly resort to the relevant provision in the Constitution if it means that legislation, enacted to give effect to the constitutional provision would be bypassed.124 Furthermore, if there already is legislation enacted to address or remedy a common-law defect, the

litigant must rely on the legislative provision concerned and not the common law,125 as per the subsidiarity principle.126

125 Van der Walt 2008 CCR 100-101; Chirwa par 23, 103; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC) (hereafter Bato Star) par 25.

126 Van der Walt 2008 CCR 99, 104. Van der Walt refers to Lourens du Plessis' notion of the subsidiarity principle implying that a court will avoid making a decision that can be made by a lower court or will avoid taking a constitutional issue where the issue can be addressed on a non-constitutional basis. See Du Plessis 2000 Stell LR 385-394, 388-389.

127 SANDU pars 51-52; Van der Walt 2008 CCR 100.

128 Van der Walt 2008 CCR 101.

129 Van der Walt 2008 CCR 103; Chirwa par 23; Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC) par 37; Bato Star par 25; Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amici Curiae) 2006 2 SA 311 (CC) (hereafter New Clicks) par 96.

130 Van der Walt 2008 CCR 103.

131 Van der Walt 2008 CCR 104.

132 SANDU; MEC for Education: KwaZulu-Natal v Pillay 2008 1 SA 474 (CC); Chirwa; Walele v City of Cape Town 2008 6 SA 129 (CC); Nokotyana v Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC); New Clicks; Sidumo; Engelbrecht v Road Accident Fund 2007 6 SA 96 (CC).

Applied to Sarrahwitz's case, the subsidiarity principle can work on two levels. First, where the Land Act is attacked for creating homelessness and therefore infringing section 26 of the Constitution, the subsidiarity principle requires that it be determined whether there is existing legislation that protects against homelessness. If such legislation exits, a claim cannot be made in terms of section 26.127 Only if it is argued that such legislation contravenes a constitutional principle can its validity be challenged by directly invoking the relevant constitutional principle.128

Second, the subsidiarity principle influences Sarrahwitz's case in the following manner. If legislation has been enacted to protect a constitutional right, the application or development of the common law is excluded.129 That is not to say that the common law does not matter. As far as it is consistent with the Constitution, it should be used to interpret the relevant legislation in accordance with section 39(2) of the Constitution, and therefore to promote the Bill of Rights.130

A good example of legislation enacted to protect a constitutional right is the PIE Act, as it specifically aims to give effect to section 26(3) of the Constitution.131 Since the judgment very clearly focuses on homelessness, the effect of the subsidiarity principle in Sarrahwitz's case is therefore that the PIE Act is the relevant legislation that should have been focused on. The CC, however, did not follow its own jurisprudence132 regarding

subsidiarity. Sarrahwitz's case was based on the argument that the Land Act had to protect against homelessness. As has been reiterated throughout this piece, the Land Act does not have the purpose of protecting against homelessness. Directing an attack in terms of section 26 against the Land Act is therefore contrary to the subsidiarity principle, since the PIE Act is the existing legislation to prevent homelessness and give effect to section 26(3) of the Constitution. The development of the common law was therefore not necessary.

The manner in which Sarrahwitz framed the legal problem, as relayed by Mogoeng CJ, further confirms that the development of the common law would not have been suitable in this instance. Sarrahwitz argued that the common law excludes someone in her position from the group of persons who can take transfer of a property purchased from a seller who has become insolvent.133 It is difficult to see how the common-law principle itself creates this distinction. In terms of the common law, property sold but not yet transferred, will upon the insolvency of the seller vest in the trustee of the insolvent estate. The trustee acquires the prerogative to either give effect to the sale agreement and to transfer the property to the purchaser or to cancel the agreement. Should a trustee elect to cancel the sale agreement, the purchaser has a concurrent claim against the insolvent estate only for the restitution of the money already paid to the seller and the damages incurred as a result of the breach.134 The common law principle provides protection to the creditors of the insolvent estate135 and, therefore, does not differentiate between different purchasers. The Land Act and its predecessors effectively took a group of purchasers out of the ambit of the common-law provision, but for a specific reason, as has been illustrated above.

133 Sarrahwitz par 18.

134 Gordon 215, Harris 108.

135 Harris 109.

136 Sarrahwitz par 27.

The CC acknowledged its duty to approach the court papers of a vulnerable party "with a measure of compassion when it is in the interests of justice to do so".136 In doing so, it is possible that the CC realised that it would have been difficult to pursue the development of the common-law argument along the lines set out in Sarrahwitz's application. If the common-law principle does not create different classes of purchasers, can it be challenged for infringing Sarrahwitz's constitutional right to equality and subsequently causing an infringement of her right to access to adequate housing and

dignity? Considering Davis and Klare's137 argument that section 39(2) requires lawyers to consider how legal problems are framed, the CC cannot be faulted on its approach. It did not fixate on Sarrahwitz's reasoning but rather phrased the legal problem in such a manner as to serve the constitutional ideal it had identified as cardinal in the case: the protection of the vulnerable against homelessness.

137 Davis and Klare 2010 SAJHR 412.

138 It is not certain from the facts in Sarrahwitz whether an eviction order had been granted against her by the time the CC heard the matter.

139 Sections 4(6) and 4(7) of PIE.

140 Sarrahwitz par 90.

141 Sarrahwitz par 95. This argument of Cameron J and Froneman J is further discussed below.

142 See the discussion of the minority judgment below.

143 See the discussion below.

Nevertheless, there may have been another basis on which the common-law principle could have been approached. While Sarrahwitz's right to equality was not necessarily at stake, her case shows that the common law can cause homelessness if the trustee elects to cancel the sale agreement and attempts to evict the purchaser.138 This will not be the case where the purchaser is allowed to stay in the property after the trustee has cancelled the sale or if the purchaser has not yet taken occupation of the property before the seller became insolvent. If the property has already served as a home for the purchaser, however, the relevant provisions of PIE139 can be invoked to protect against eviction, as was also argued by justices Cameron and Froneman in their minority judgment.140 The minority judgment rightly confirmed that an eviction of someone such as Sarrahwitz would not be just and equitable and would fall foul of PIE's requirements for eviction to proceed.141 By applying PIE, the CC therefore would in fact have reformed the manner in which a trustee can exercise its discretion in this regard, thereby effectively developing the common law.142

A further effect of the common law is that the purchaser is deprived of its right to take transfer of the property. Even though this right is a personal right, it relates to land and for the purposes of this paper it is assumed that this right to take transfer can be regarded as "property" for the purposes of section 25(1) of the Constitution.143 Section 25(1) protects against a deprivation of property which does not take place in terms of a law of general application or which is arbitrary. Deprivation will be arbitrary if it is

procedurally unfair or if the law of general application does not provide sufficient reason for the deprivation.144

144 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) (hereafter FNB) pars 61-67.

145 Sarrahwitz par 64. This paragraph follows an extract from Mokoro J's judgment in Jaftha setting out the link between dignity and the right to access to adequate housing.

146 Sarrahwitz par 64.

147 The remedy ordered to assist Sarrahwitz. Sarrahwitz par 73.

To determine whether the cancellation of the sale agreement would amount to a deprivation of the property of the purchaser, the creditors' interest in the trustee's prerogative not to transfer valuable property out of the insolvent estate of the seller would have to be weighed against the interest of the purchaser to obtain transfer of the purchased property. In Sarrahwitz the majority judgment determined, based on the indignity that accompanies homelessness,145 that the rights of someone in Sarrahwitz's position would most likely outweigh the interests of the creditors of the insolvent estate.146 The only other mention of the creditors' interests in the judgment is that these must be considered in the "crafting of the remedy".147 As proposed here and in the minority judgment, the consequence of homelessness, and therefore the accompanying indignity, can be avoided by invoking the provisions of PIE. The deprivation of property does not create homelessness. Mogoeng CJ's argument that the purchaser's interests outweigh those of the creditors will furthermore not necessarily be applicable. It falls outside the scope of this paper to do a proper analysis of the deprivation caused by the common law. The protection of the creditors' interests, however, may very well serve as sufficient reason for the deprivation, especially if the indignity and homelessness of the deprived purchaser are not an issue.

That is not to say that the inability to own property is not accompanied by indignity, especially where this inability forms part of the legacy of racial discrimination. In instances where a seemingly neutral common-law principle unintentionally perpetuates the effect of racial discrimination in favour of the creditors of insolvent estates, it should be scrutinized. However, it seems as if the CC in Sarrahwitz was not in the position to undertake such an exercise.

5 Homelessness and property

Sarrahwitz initially based her application before the CC on various constitutional rights (including section 9 - the right to equality, section 25 - the right not to be arbitrarily deprived of property and section 26 – the right to access to adequate housing).148 The majority judgment, however, confirmed in its very first sentence that the case was about homelessness and vulnerability, thereby excluding the other rights cited by Sarrahwitz.149 Sarrahwitz certainly was vulnerable because of her lack of financial means and she would have been unable to procure another home, should she be evicted. She therefore faced homelessness because of the common-law principle providing the trustee of the insolvent seller with the prerogative to cancel the sale agreement, which would render her occupation of the property unlawful. There is, consequently, agreement that Sarrahwitz's vulnerability and pending homelessness were paramount in this case.

148 Sarrahwitz fn 5. The sections are listed: s 9 (everyone is equal before the law); s 10 (everyone has inherent dignity and the right to have their dignity respected); s 25(1) (no one may be arbitrarily deprived of property); s 26 (everyone has the right to access to adequate housing) and s 33 (everyone has the right to administrative justice that is lawful, reasonable and procedurally fair) of the Constitution.

149 Sarrahwitz par 1.

150 Sarrahwitz par 17.

151 Sarrahwitz fn 10. In Sarrahwitz fn 16 it is stated that the Minister of Trade and Industry "broadly agreed" with Sarrahwitz's contentions regarding the common law, but that the reliance on administrative fairness was misplaced. It is assumed that s 33 and the Promotion of Administrative Justice Act 3 of 2000 were not applicable due to the absence of administrative action.

152 Grootboom; Jaftha; Fischer v Persons Unknown 2014 3 SA 291 (WC); Motswagae v Rustenburg Local Municipality 2013 2 SA 613 (CC); City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC); Abahlali base Mjondolo Movement of South Africa v Premier of the Province of KwaZulu-Natal 2010 2 BCLR 99 (CC); Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC); Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2009 9 BCLR 847 (CC); Occupiers of 51 Olivia Road v City of Johannesburg 2008 5 BCLR 475 (CC); City of Johannesburg v Rand Properties (Pty) Ltd 2007 1 SA 78 (SCA); Minister of Health v New Clicks South Africa (Pty) Ltd 2006 8 BCLR 872 (CC); Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC);

In considering whether leave to appeal should be granted, Mogoeng CJ confirmed that the constitutional rights that were implicated were the right to access to adequate housing, the right to dignity and the right to equality.150 A footnote mentions that the rights to property and administrative justice were also relied upon, but it was stated without elaboration that these rights were not implicated in the matter.151

On a number of occasions the CC has accommodated applicants facing eviction or challenges to obtaining housing.152 This may explain why

President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC); Khosa v Minister of Social Development 2004 6 SA 505 (CC); Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 5, City of Cape Town v Rudolph 2003 11 BCLR 1236 (C); Minister of Public Works v Kyalami Ridge Environmental Association 2001 7 BCLR 652 (CC).

153 Sarrahwitz par 2.

154 Sarrahwitz par 3.

Mogoeng CJ focussed on homelessness and not on Sarrahwitz's rights in terms of section 25(1) of the Constitution. Considering that the constitutionality challenge is directed at the Land Act, this is peculiar. The Land Act regulates the alienation of land and provides for the right to claim transfer of ownership. To repeat what has already been said, Sarrahwitz was in a vulnerable position and did possibly face homelessness. She was, however, also about to lose her right to claim the transfer of the ownership of the property she had purchased and paid for in full.

Mogoeng CJ described section 26, which provides for the right to access to adequate housing, as a "catalyst in the liberalisation of home-ownership" in the context of the legacy of apartheid.153 He referred to the inability to own a home because of the insolvency of the seller, a situation that had been remedied for purchasers paying in instalments in terms of the Land Act. However, this protection is not afforded to purchasers paying the purchase price as a lump sum. His question was then whether this situation is constitutionally defensible, taking into account the fact that a purchaser may be rendered homeless if transfer does not take place.154 It therefore seems as if the CC regarded section 26 as a means to achieve ownership or a property right.

Considering the purpose and background of the Land Act, the link Mogoeng CJ drew between home ownership and the right to access to adequate housing requires further contemplation. Can section 26 of the Constitution serve as means to obtain the right to transfer in terms of legislation that may relate more to the rights protected in terms of section 25(1) of the Constitution? We have argued above that the Land Act identifies a specific "consumer" (an instalment-sale purchaser) who faces a specific risk and accordingly provides protection for this consumer against the harsh consequences of the common law. This risk, however, does not necessarily relate to being rendered homeless. This consumer entered into a transaction in terms whereof land is alienated, and the Land Act regulates this alienation. It dictates which information should be provided to the consumer and under which circumstances the consumer can claim transfer of the ownership of the land. Very little is said about the actual possession

of the land.155 Even though "land" for the purposes of Chapter II means land used mainly for residential purposes, there is no indication that this ought to be interpreted as only being the home of the purchaser.

155 Section 6(k) of the Land Act determines that the contract must stipulate the conditions and date on which the purchaser may take possession and occupation of the land. S 28(1)(b), which regulates the consequences of a void deed of alienation, determines that the alienator may recover from the alienee reasonable compensation for the occupation, use or enjoyment the alienee may have had of the land.

156 Gordon 215, 219-220. Also see Harris 106, 108, 109.

157 Van der Merwe 2002 SALJ 813.

158 Van der Merwe 2002 SALJ 812.

159 The contract is recorded against the title deed of the land purchased. The purchaser of land in instalments obtains the right to claim registration in the event of the insolvency of the seller or the attachment of the property in execution or it acquires a preferential claim on the proceeds of the sale if the land is sold in execution.

160 Van der Merwe 2002 SALJ 813.

161 In FNB par 51 the CC held that regard should be had to both the nature of the right as well as to the object, to determine if we are dealing with property. The CC also held that the ownership of land lies at the heart of the constitutional concept of property. In National Credit Regulator v Opperman 2013 2 SA 1 (CC) the "purported

The instalment-sale purchaser at common law had a personal right to claim transfer only once the purchase price had been paid in full.156 Van der Merwe157 classifies the right this consumer obtains in terms of section 22 of the Land Act as one of the "new" real rights sui generis, arguing that this development was needed to "improve the disadvantageous position of a certain category of persons". He describes this category as purchasers paying for land in instalments who may take transfer of the land so purchased only upon the full and final payment of the purchase price. Furthermore, he emphasises the risk a purchaser runs (as was mentioned earlier) of the seller's becoming insolvent before the final payment of the purchase price is made.158 Due to the effect of recording the contract in terms of section 20 at the Deeds Office,159 the right afforded to the consumer in terms of section 22 possesses the characteristics of a real right: it is protected against third parties, it provides its bearer with preference on insolvency, and the first-in-time principle applies.160 It can also be argued that the recording of the contract at the Deeds Office serves as publicity, even though it is not technically registered.

It is not the focus of this paper to question whether Sarrahwitz was deprived of property arbitrarily and in contravention of section 25(1). It will suffice, however, to say that the right provided for in section 22 of the Land Act will most likely constitute property for purposes of section 25(1) if it is considered that the nature of the right is, in essence, a real right and the object of the right is land.161 By protecting constitutional property, the Land

rights" of a credit provider under a credit agreement "to recover any money paid or goods delivered" as provided for in s 89(5)(c) of the National Credit Act 34 of 2005 was held to be property for the purposes of s 25 and a commercial trading licence authorising the sale of wine in a grocery store was held to be property for the purposes of s 25(1) in Shoprite Checkers (Pty) Ltd v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape 2015 6 SA 125 (CC).

162 Sarrahwitz par 41.

163 Sarrahwitz par 42 and fn 35. In Jaftha s 66(1) of the Magistrates' Court Act 32 of 1944 was declared unconstitutional. Due to the failure of the act to prescribe judicial oversight of the sales of execution against the immovable property of judgment debtors, vulnerable judgment debtors such as Jaftha and Van Rooyen were left homeless as a result of small amounts of debt they were unable to pay. S 66(1) was therefore declared unconstitutional for infringing the right to access to adequate housing of Jaftha and Van Rooyen.

164 Sarrahwitz par 43.

165 Section 66(1) of the Magistrates' Court Act 32 of 1944.

Act may also prevent the homelessness of the instalment-sale purchaser, but this is an unintended (and fortunate for the instalment-sale purchaser) consequence of the Land Act. As was argued above, it is difficult to interpret the purpose of the Land Act as protection against homelessness.

Mogoeng CJ emphasised that section 26 requires us to do away with the indignity coupled with homelessness. The state, therefore, should take "all reasonable measures" to realise the right to access to adequate housing and should limit the "interference with that access unless otherwise justified".162 For Mogoeng CJ, the Land Act, like the Magistrates' Court Act in Jaftha v Schoeman; Van Rooyen v Stolz,163 presented such interference. He argued that Sarrahwitz's situation was similar to that of Jaftha: both Sarrahwitz and Jaftha were vulnerable, poor persons who had lived with their families in their homes for many years before facing eviction.164 The manner in which the respective impugned acts affected Sarrahwitz and Jaftha, however, differed. Whereas Jaftha's situation clearly fell within the ambit of section 66(1) of the Magistrates' Court Act, the same cannot be said for Sarrahwitz's situation. In Jaftha's case, the legislative provision165 allowed for the sale in execution that would lead to eviction – bearing in mind that any eviction must still take place in terms of PIE. The Land Act did not affect Sarrahwitz in the same manner. In fact, Sarrahwitz's situation did not fall within the ambit of the Land Act – that is what gave rise to the issue before the court. The Land Act protects a designated purchaser against the consequences of the common-law principle, which consequences may entail eviction. It is, however, not the Land Act in itself, which allows for the cancellation of the sale agreement that may lead to eviction. Consequently, it is submitted that the effect of the Land Act in Sarrahwitz cannot be compared with that of the Magistrates' Court Act of 1944 in Jaftha, and that

the approach the CC took in Jaftha is not necessarily apt in the case of Sarrahwitz.

Thus far, we have argued that the judgment does not sufficiently substantiate the point that the Land Act intends to protect against homelessness. It has been shown that the purpose of the Land Act, and specifically sections 21 and 22, is to mitigate the risk an instalment-sale purchaser faces and that the unintended consequence of this protection is also to avoid the homelessness of the instalment-sale purchaser. Hence, it is difficult to argue that the Land Act, in fact, should make provision for someone such as Sarrahwitz.

The Land Act, however, is now required to give effect to the provisions of section 26. In other words, in the event of the insolvency of the seller, ownership should be transferred in order to prevent homelessness. Whereas Mogoeng CJ argued that the right to access to adequate housing serves as a "catalyst in the liberation of home-ownership", the judgment now has the opposite effect: home-ownership serves as a catalyst for the realisation of the right to access to adequate housing.166 Sarrahwitz already had a home and in terms of her contractual or personal right to claim performance from the seller, she could have obtained ownership of it long before. Someone in her position requires protection as a vulnerable consumer in the sense that there should be consequences for sellers who exploit the vulnerability of ill-informed and financially constrained purchasers. The Land Act could serve such a purpose, but not based on impending homelessness.

166 Sarrahwitz par 2.

167 Because the Trustee had cancelled the sale agreement, Sarrahwitz would have been an illegal occupier for the purposes of PIE, and would therefore qualify for protection in terms of PIE.

168 Sarrahwitz par 79.

169 Sarrahwitz par 22. Due to the withdrawal from the matter by the Trustee, the Minister's submissions were the only submissions the CC could consider in this regard.

6 Minority judgment

The relevant legislation to prevent eviction and homelessness is the PIE, as Cameron J and Froneman J held in their minority judgment.167 They concurred with the order made by the majority because of the unusual circumstances of the case, but not without reservations.168 Whereas the majority judgment was a response to the suggestion made by the Minister,169 the minority judgment considered the matter from the stance

that the CC was not bound to follow the approach proposed by the Minister.170 In its submissions before the CC, the Minister did not use the opportunity to expose a legitimate reason for the Land Act's differentiating between instalment-sale purchasers and other purchasers. Rather, he contended that the legislator must have omitted extending protection to a vulnerable purchaser of residential property such as Sarrahwitz due to her unique and rare situation.171

170 Sarrahwitz par 82.

171 Sarrahwitz par 81.

172 Sarrahwitz par 82.

173 Sarrahwitz par 83.

174 Sarrahwitz par 85.

175 Sarrahwitz par 86.

176 Mogoeng CJ argued that by differentiating between an instalment-sale purchaser and someone such as Sarrahwitz, the Land Act infringes on Sarrahwitz's right in terms of s 9(1) of the Constitution to receive equal treatment, protection and benefit

The minority judgment, however, advanced another possible reason for the differentiation caused by the Land Act: Usually, a purchaser who is capable of paying for a residential property in one lump sum or within a year is in a stronger financial position than a purchaser who must make smaller payments over a longer period. It would therefore make sense that the former would require less protection than the latter.172 Judges Cameron and Froneman furthermore argued that Parliament was ultimately in the best position to determine the extent of the group of vulnerable persons who ought to be protected by legislation.173 The approach adopted in the majority judgment may be regarded as providing the CC with the authority to declare that any legislative protection created is irrational if not everyone is protected. The latter intervention would go too far. It would be risky to adopt the approach as a rule because it would reduce Parliament's ability to enact consumer protection legislation. Applying the reading-in remedy also effectively entailed performing the function of drafting policy determined by social needs, a function that ought to be performed by Parliament.174 The difficulty for the courts to determine the extent of vulnerability that deserved protection was, according to the minority, well-illustrated in the majority judgment. According to the minority, the majority found that homelessness was the basis on which lump-sum purchasers deserved the same protection as instalment-sale purchasers in terms of the Land Act, in spite of the fact that the Land Act does not determine that the instalment purchaser should face homelessness in order to qualify for protection.175

Cameron J and Froneman J further argued that whereas the CC had in the past used section 9(1)176 of the Constitution to strike down sections of

of the law. The CC described this differentiation as "mere differentiation", and decided that no legitimate governmental purpose was served by this differentiation. Mogoeng CJ disregarded the Minister's argument that Sarrahwitz's situation was highly improbable and concluded that the impugned provisions were unconstitutional since there was no rational basis for the differentiation. Sarrahwitz pars 49-68.

177 Sarrahwitz par 88; Van der Merwe v Road Accident Fund 2006 4 SA 230 (CC); Ngewu v Post Office Retirement Fund 2013 4 BCLR 421 (CC).

178 Section 26 of the Constitution determines that the state ought, through legislation and by other means within its reasonable resources, progressively to realise every person's right to access to adequate housing.

179 Sarrahwitz par 90.

180 Sarrahwitz par 90. Ss 6 (applicable where the unlawful occupier has occupied the land in question for fewer than six months) and 7 determine that a court may order eviction only if it is of the opinion that it is just and equitable to do so after it has considered all the relevant circumstances.

181 Sarrahwitz par 95. S 4(6) of PIE determines that a court may grant an order for eviction of an unlawful occupier who has been in occupation of the relevant premises for more than 6 months only if it would be just and equitable, considering all relevant circumstances.

182 Sarrahwitz par 90.

183 Sarrahwitz par 91.

184 Sarrahwitz par 97.

legislation that irrationally differentiate between persons, these cases differed significantly from Sarrahwitz's situation.177 Because the Constitution does not provide protection against homelessness in an absolute sense,178 it was difficult to determine a constitutional breach in terms of an equality analysis.179 Section 26(3), however, does determine that no one may be evicted from his or her home without a court order. Accordingly, as was mentioned above, they found that PIE provided Sarrahwitz with the necessary protection against eviction.180 According to them, Sarrahwitz's situation provided the CC with the opportunity to establish a principle that would protect persons in similar situations in future. The principle was that, irrespective of the seller's insolvency, it would not be just and equitable to evict a person from a home he or she has lived in as the "owner" for a significant period and for which he or she has paid the full purchase price, if such an eviction will result in the person's homelessness.181

As is also held in the minority judgment,182 it is submitted that the proposed amendments to the Land Act ordered in the majority judgment were not the only means of assisting Sarrahwitz. If the possession of Sarrahwitz's home had been secured, the obstacles frustrating transfer, according to Cameron J and Froneman J, would probably disappear.183 If Sarrahwitz could not be evicted from the property, it would most likely lose its economic value and the creditors would not be interested in it any more. The Trustee could give effect to the sale agreement and transfer the property into Sarrahwitz's name if the creditors had lost interest in the property.184 Judges Cameron

and Froneman, therefore, argued that the CC should have ordered the parties to furnish further information as to the whether an eviction order had been obtained against Sarrahwitz.185 The majority judgment did not make mention of an eviction order at all.

185 Sarrahwitz par 99; fn 84 indicates that the Trustee claimed in its answering affidavit that an eviction order was granted, but its opposing papers in the High Court do not state that the order had been granted. Sarrahwitz's founding papers before the CC mentioned only the application for obtaining an eviction order. No mention was made of an order for eviction granted against her. The minority judgment therefore found that further information was required on whether or not Sarrahwitz had been evicted.

186 Davis and Klare 2010 SAJHR 410.

187 Davis and Klare 2010 SAJHR 410.

188 Davis and Klare 2010 SAJHR 411.

It would seem as if the minority judgment also regarded the realisation of the right to access to adequate housing as promoting the "liberation of home-ownership" but rather opted to use legislation intended to protect against homelessness. It is submitted that the approach of the minority judgment creates better constitutional jurisprudence for acknowledging the purpose of the Land Act and effectively separating the issue of the transfer of property from eviction from the property.

7 Conclusion

In conclusion, the views of Davis and Klare186 must be reiterated. In their opinion, section 39(2) of the Constitution requires judges to promote constitutional values when developing the common law or interpreting legislation, and not just to ensure strict adherence to laws. Judges should concern themselves not only with the coherence of the legal order, but also with its character.187 Davis and Klare188 stress that the common law requires re-imagining, because it still "largely reflects, constitutes, and sustains existing social relationships, power structures, and inequalities".

Nowhere are these inequalities more visible than in the warped patterns of access to land and housing in South Africa. Both sections 25 and 26 of the Constitution serve to address these patterns, but each protects or advances a different kind of relation to land. Protection of the one right will in some instances lead to the promotion of the other, but the two rights should not be conflated, as has inadvertently been done by the CC in Sarrahwitz. We do not wish to propose a formalistic distinction between the protection of property and the provision of housing, but in framing legal problems pertaining to land and housing, cognisance should be taken of the difference.

Not only the common law but also legislation created before the enactment of the Constitution should be interrogated, based on its underlying political or ideological basis. Even though the role the legislature must play in transformation must be respected in this regard,189 pre-constitutional legislation must be approached with care, for it may still reflect the policies of a previous age.190 Should such implicit policies be in conflict with the values of the Constitution, the legislation must be developed. Legislation such as the Land Act, however, is not unconstitutional for not protecting against homelessness if its purpose is to protect vulnerable consumers against risks other than impending homelessness. If the Land Act ought to be developed to provide for protection against homelessness, the development cannot entail a few seemingly minor amendments without considering its actual purpose and the major consequences the amendments may have for the practical implementation of the Act and constitutional jurisprudence.

189 SANDU.

190 Van der Walt 2008 CCR 111.

The majority judgment's approach to Sarrahwitz's dire situation speaks of an honest, maybe even desperate, attempt to comply with the duties provided for in section 39(2), but more importantly, to assist Sarrahwitz. If the CC cannot assist someone in Sarrahwitz's position, we should question the significance of the rights entrenched in the Bill of Rights. Fortunately, the CC found a way in which to protect Sarrahwitz's home and to make her a property owner. The legislative amendments ordered in Sarrahwitz, however, effectively provide property in order to avoid homelessness. The amendments also create ambiguity and uncertainty, and will have unintended consequences, because they cater for a very unlikely scenario within a legislative framework ill-suited to the intended purpose of the amendments.

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List of Abbreviations

CC

Constitutional Court

CCR

Constitutional Court Review

HC

High Court

PIE

Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998

SAJHR

South African Journal of Human Rights

SALJ

South African Law Journal

SCA

Supreme Court of Appeal

Stell LR

Stellenbosch Law Review

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