Sarrahwitz v Maritz NO CCT 93/14

The Constitutional Court will today deliver judgment in an important matter concerning the rights of buyers of property and the distinction between real and personal rights. The dispute concerned the common law, read with the Alienation of Land Act (Land Act), and the possible infringement of the rights to equality, property, just administrative action, housing and human dignity.  A purchaser entered into a written deed of sale with the seller concerning an immovable property in Port Elizabeth.  The full purchase price was paid for the property before concluding the sale.  The  money was borrowed from the employer.  The property was not transferred  despite numerous efforts.  In 2006 the seller’s estate was sequestrated and the property fell into the seller’s insolvent estate.

The contract of sale was incomplete and in terms of the common law the trustee elected  not to fulfil the contract and refused to transfer the property.  In terms of the common law a purchaser of immovable property cannot compel transfer of the property if the seller subsequently becomes insolvent even if the full purchase price has been paid in advance.  The Land Act protects purchasers who have bought land in terms of instalment agreements from the effects of sequestration, but does not apply to purchasers who paid the full price.