Sakeliga seeks to join ConCourt case to protect key property rights provisions

Sakeliga is seeking admission to a Constitutional Court matter to protect the stability, predictability, and legibility of property transfers and ownership in South Africa.

The matter involves the Constitutional Court’s upcoming proceedings on an order issued by the Pretoria High Court in 2025.

In that unopposed order, the High Court held that verbal agreements for the transfer of residential property shall also be "binding and enforceable". This would significantly expand the scope of the Alienation of Land Act 68 of 1981, which, in its current form, limits binding and enforceable agreements to those recorded in writing.

The stated intent of the High Court’s order to relax the written-formality requirement for the transfer of such property was to protect vulnerable buyers, but it has problematic, far-reaching implications for how immovable property (real estate) in South Africa is registered and transferred. It could also leave parties to such agreements subject to being undermined by competing, unfalsifiable verbal claims.

Registrars of deeds, conveyancers, owners, purchasers, mortgagees, and third parties rely on the written record to determine whether a land transfer is valid. Permitting the transfer of immovable property on the strength of verbal agreements would jeopardise a public and verifiable record of land ownership and undermine the functioning of the deeds registry due to unresolvable competing claims. This would erode legal certainty of ownership and transfers, harm the functioning of property markets, and impede economic development in ways that far outweigh the purported remedies intended by the order.

Since its order included a finding that the Act was inconsistent with the Constitution, the High Court suspended the order pending confirmation by the Constitutional Court. It is in these confirmatory proceedings that Sakeliga seeks admission as amicus curiae (friend of the court).

Sakeliga intends to assist the Constitutional Court by advancing submissions that weigh against mere confirmation of the High Court's order, and in favour of retaining the long-standing written-formality requirement for land transfers, including that:

• The acquisition, transfer, and enforcement of ownership and other registered real rights depend on a stable and predictable legal framework, for which the written-formality requirement is a constitutionally legitimate and rational means.
  
• The High Court’s remedy is disproportionate to the concerns it sought to address, given that less intrusive remedies are available to the applicants in the matter at hand.
  
• The High Court failed to account for a proper balancing exercise between competing constitutional interests.
  
• The order was made on the basis of insufficient evidence and without citing all the relevant government departments as respondents, thereby preventing them from participating in the proceedings. For example, the Minister of Land Reform and Rural Development – who is responsible for the administration of the Deeds Registries Act 47 of 1937 – was neither joined nor given an opportunity to make submissions, despite the order having direct consequences for the deeds registration system.

Context

The High Court’s order was made on 2 October 2025, with reasons as provided on 11 May 2026. The case concerns a disputed property transaction that was initially proposed in writing, before that written offer was terminated. Following the termination of the written offer, the parties nevertheless agreed to the sale verbally. The prospective buyer then proceeded to make payment, and did so nearly in full. However, the owner refused transfer, citing section 2(1) of the Act, which mandates written, signed sales agreements. Despite other suitable and available remedies, the prospective buyer then approached the court with a far-reaching constitutional challenge to the requirement that sales agreements for fixed property be in writing.

The High Court declared the written requirement inconsistent with the Constitution for failing to permit the transfer of residential property by verbal agreement, and chose to read into the Act’s text words that render verbal agreements for the transfer of residential property binding and enforceable.

Despite the significant consequences for the deeds registry and property rights in South Africa, the only government party cited in the proceedings was the Minister of Trade, Industry and Competition. The Minister, however, filed only a notice to abide, offering no justification to the High Court for the existing legal provision.

Next steps

Sakeliga has requested the parties to the confirmation proceedings for consent to be admitted as amicus curiae. Should consent not be forthcoming, Sakeliga will bring a formal application for admission as amicus curiae.