Legal Articles and Guides

Courts have an obligation to consider all relevant considerations before ordering an eviction‚ in cases where an unlawful occupier has purportedly consented to his removal. The Constitutional Court made this finding yesterday as it rescinded a 2013 order made by the High Court evicting 184 occupiers from a block of flats in Johannesburg. The decision has been described as momentous by the Socio-Economic Rights Institute (Seri)‚ which represented the occupiers, notes a TimesLIVE report.

The Gauteng High Court (Pretoria) has refused to enforce an ‘accelerator’ clause in a home loan agreement based on a 2016 Constitutional Court judgment making it much more difficult for banks to take back the homes of defaulters, a Beeld report notes.

Government has missed the deadline to respond to the District Six Working Committee’s demands about the number of land claims it had received and those it had approved for financial compensation, says a Cape Times report. The committee’s attorney, Nicki van’t Riet, said yesterday that they would go ahead with litigation following the Department of Rural Development and Land Reform Minister Gugile Nkwinti’s failure to provide answers to their letter of demands sent more than a month ago.

A landmark SCA ruling has freed property sellers from the obligation of paying a full year’s rates in advance to obtain a rates clearance certificate. According to a Fin24 report, Greg Parker, one of the directors of Greyvensteins Attorneys, which successfully appealed on behalf of a client contesting the Nelson Mandela Bay Municipality’s (NMBM's) right to claim a full financial year’s worth of rates before issuing a rates clearance certificate, said the precedent-setting case centred on the sale of a property in Port Elizabeth.

Hopefully you won’t have to wait 20 years for your new dream home to be built – that’s how long Cheops (ancient Egyptian pharaoh) had to hang around twiddling his thumbs whilst his Great Pyramid of Giza was going up – but you will no doubt be keen to move in as soon as you can.

The Constitutional Court was asked yesterday to confirm the Gauteng High Court (Pretoria) order last year that a new owner cannot be held liable for the water‚ rates and lights debts of the old owner or owners, notes a TimesLIVE report. The Tshwane and Ekurhuleni municipalities argue that the municipal debts belong to the property and municipalities can sell a house to recover the debt dating back up to 30 years.

The Gauteng High Court (Johannesburg) has set aside an eviction order granted against 84 men‚ women and children living at 8 O’Reilly Street‚ Hillbrow‚ in Johannesburg’s inner city‚ the Socio-economic Rights Institute (Seri) said. According to a TimesLIVE report, it said the court held that the eviction order should not have been made without the City of Johannesburg being part of the proceedings.

While the Constitutional Court judgment in Daniels v Scribante and Another will not have any immediate dramatic effect on the nature of land distribution, it contains important jurisprudence which social justice lawyers will be able to use in other cases to change the way we think of land and land ownership in SA. ‘The judgment calls on us to think of land in terms of relationships, rather than purely in terms of rights that owners can enforce to exclude others from using the land for any purpose,’ says constitutional law expert Professor Pierre de Vos, in an analysis on his Constitutionally Speaking blog.

A Consumer Commission inquiry into the ‘vacation ownership/timeshare industry’ launched yesterday will include a review of all legislation, policies and codes applicable to the promotion, rental, sale, re-sale, swap’ and reservation of timeshares.

In what The Star calls a major victory for property owners, the SCA has ruled that municipalities cannot demand that property sellers pay in advance for many months of rates, fees and charges before issuing a rates clearance certificate. In a case involving the Nelson Mandela municipality demanding at least R1m in advanced rates for one year from Amber Mountain Investments 3, the company paid under duress for the sale to go through.

District Six claimants who have been waiting for homes for more than 20 years have warned Rural Development and Land Reform Minister Gugile Nkwinti to stop rewarding claimants with ‘shoddy houses and back-hand deals’. A Cape Times report says about 700 claimants gathered at a meeting organised by the District Six working committee on Saturday, where it was made clear that claimants will no longer tolerate delays in the restitution process.

A rights group in northern KZN is taking the fight for housing to court, notes a report in The Mercury. The Endumeni Civic Association claims in papers filed in the KZN High Court (Pietermaritzburg) that the constitutional rights of some of the most vulnerable and poor having been systematically violated. The association – represented by the Durban Legal Resources Centre – is asking the court to compel the Endumeni municipality to process applications for RDP housing in a ‘fair and transparent’ manner.

The new land reform provisions contained in the Regulation of Agricultural Land Holdings Bill render the Bill unconstitutional and make it an exercise in redistribution rather than restitution as required by the Constitution, says the Free Market Foundation (FMF). In a statement yesterday, recorded on the Fin24 site, the Foundation said the Bill demonstrates government’s refusal to consider far more appropriate and effective measures to achieve land reform.

Levy collections are the life blood of sectional title schemes, and collecting them is likely to get harder with the economic fallout from our downgrade to junk status. So if you own property in a scheme, and particularly if you are a trustee of your body corporate, you need to know about the new SCA (Supreme Court of Appeal) decision in Body Corporate of Empire Gardens v Sithole and Another (240/2016) [2017] ZASCA 28 which puts at risk the body corporate’s right to apply for sequestration of levy defaulters.

There are a number of high court cases dealing with a property owners “right to a view” and it seems that with the number of new developments in sought after areas these issues will continue to come up. We’ve previously looked at a property owners’ attempt to enforce a height servitude over a neighbour’s property and another case where property owners attempted to stop neighbours from going double-storey.