Sakeliga seeks to defend fixed property transfer laws in ConCourt

Sakeliga has applied to the Constitutional Court for admission as amicus curiae (friend of the court) in a case that could determine the stability of property transfers and ownership in South Africa.

We seek to advance submissions against the confirmation of an erroneous finding of the Pretoria High Court, which held that verbal agreements for the transfer of residential property shall be "binding and enforceable". If confirmed, this order would risk serious detriment to security of property rights in South Africa, by removing the now long-settled requirement that agreements for property transfers should be in written form.

In its order, the High Court declared section 2(1) of the Alienation of Land Act 68 of 1981 unconstitutional and read words into the Act that elevate verbal agreements for the transfer of residential property to the level of written agreements. Since rulings that invalidate Acts of Parliament require confirmation by the Constitutional Court, this matter has been referred to the Constitutional Court.

The High Court made the order on an unopposed basis. The Minister of Trade, Industry and Competition filed a notice to abide rather than to oppose the application. In the absence of any party defending section 2(1), Sakeliga seeks to assist the Court by advancing submissions in support of the provision requiring written agreement and in favour of legal certainty and certainty of title.

Our position is that section 2(1) is constitutional and justified. The written-formality requirement facilitates legal certainty, proper public notice, fraud prevention and certainty of title, which together are vital to maintaining the integrity of the deeds registry. In the absence of this certainty, owners and purchasers would face increased administrative and financial burdens, including the need for title deed insurance, while title disputes would prompt additional litigation.

Resources

• Notice of Motion and Founding Affidavit
• Sakeliga seeks to join ConCourt case to protect key property rights provisions