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

Abstract

The article critically evaluates the decision of the Constitutional Court to resort to the amendment of the Alienation of Land Act in order to protect a vulnerable purchaser of property against homelessness. It is argued that the origins and purpose of the said Act should have been considered by the Constitutional Court. Such consideration shows that the Act protects against a specific vulnerability which an instalment sale purchaser faces and deals with the right to take transfer. This vulnerability is not necessarily homelessness and is it, therefore, questioned whether the Act can be applied to give effect to the section 26 of the Constitution. The article further argues that an alternative solution could have been to develop, in line with constitutional values, the common law provision which provides the trustee of the insolvent estate with the discretion to cancel a sale agreement pertaining to property sold but not yet transferred, as it is this provision which created the risk of homelessness in this instance. It is, however, submitted, that the minority judgment’s reliance on the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, provided the best solution in this instance.