21 October 2020
Durban High Court grants consent order which will ensure our client’s home is
transferred back into his name
Durban — The Legal Resources Centre has secured a consent order in the Durban High Court ensuring that our client, an 84-year-old pensioner, will retain his home following its expropriation by the KwaDukuza Municipality in 2014. Following our application in 2019 to review and set aside the KwaDukuza Municipality’s decision to
expropriate our client’s property, the LRC was able to negotiate a settlement agreement with the Municipality and order, with the consent of the parties, was granted by the Durban High Court this year. The order provides that the KwaDukuza Municipality must transfer the property back to our client within three months and pay all the costs in respect of the transfer of the property.
The property in question was acquired by our client’s father around 1943. Our client’s father was white and his mother black, resulting in him being classified as “coloured” during apartheid. Due to the discriminatory laws of the time, our client and his siblings were not able to inherit the property from their father. His father attempted to donate the property to him but was prevented by law from doing so. Our client was forced to purchase the property from his father for it to be transferred into his name. He has resided at the property his entire life, from which he receives a bit of rental money from tenants who also occupy and use the property. This, along with his old-age grant, is his sole source of income.
Our client’s property was expropriated without his express consent and without a court order. In 2019 the LRC instituted an application in the Durban High Court to review and set aside the expropriation of our client’s property as well as challenge section 10(5) of the Expropriation Act 63 of 1975 and declare it inconsistent with the Constitution and therefore invalid. This section provides that unless the Minister and the owner have
agreed otherwise, the owner is deemed to have accepted the Minister’s offer of compensation if the owner does not make an application to the court for determination of compensation. This, the LRC argues, is inconsistent with s25(2) of the Constitution which provides that property may only be expropriated where consent has been given
by those affected or the court has intervened and granted an order. It does not contemplate deemed consent.
Section 10(5) of the Expropriation Act had adversely affected our client as the Municipality had relied on this section to claim that our client was deemed to have accepted the offer made to him. Our client as a pensioner did not have the money or necessary legal knowledge to launch legal proceedings for the determination of just and equitable compensation as envisaged in section 10(5). The property was expropriated and registered in the name of the KwaDukuza Municipality in November 2014. Our client continued to reside on the premises but in 2016 the KwaDukuza Municipality instructed their attorneys to evict him.
The LRC was able to secure relief for our client through a negotiated settlement and are pleased to have assisted him in realizing his right to security of tenure by regaining title to his family home.
Issued by the Legal Resources Centre
For more information, please contact:
Sharita Samuel (Durban Regional Director) Cell: 074 111 174/ firstname.lastname@example.org