Sarrahwitz v Maritz N.O. and Another

Ms Virginia Sarrahwitz, a poor and unemployed woman, purchased a residential property at 23 Auburn Street, Booysens Park, Port Elizabeth in September 2002. She paid the full purchase price of R40 000 upfront and took occupation shortly thereafter. Despite repeated assurances, the seller failed to transfer the property. In April 2006, before transfer was effected, the seller’s estate was sequestrated. Under the common law and the Alienation of Land Act 68 of 1981, the property vested in the insolvent estate, and the trustee refused to transfer it to Ms Sarrahwitz. The High Court dismissed her application for transfer, holding that the Act protected only instalment-sale purchasers and not purchasers who paid the full purchase price. Ms Sarrahwitz faced homelessness as a result.

Leave to appeal was granted and the appeal upheld. The High Court order was set aside. The Alienation of Land Act was declared unconstitutional to the extent of its omission and was remedied by a reading-in extending sections 21 and 22 to vulnerable purchasers who paid the full purchase price within one year. The trustee was ordered to transfer the property to Ms Sarrahwitz. No order as to costs was made.

This case is significant for extending statutory protection to vulnerable home purchasers who pay the full purchase price but face homelessness due to seller insolvency. It reinforces substantive equality, affirms the negative obligation under section 26 not to impair existing access to housing, and demonstrates the Constitutional Court’s use of reading-in to cure under-inclusive legislation.