Court comes to rescue of woman facing eviction from family home
The high court in Pretoria has come to the rescue of a 68-year-old woman who was about to be evicted from her home.
Mary Rahube launched an application to declare that she is the owner of the property in Mabopane on which she has lived since 1977.
She challenged the constitutionality of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 on the basis that it fails to give occupiers of a property notice and an opportunity to be heard prior to the conversion of rights over the property to full ownership.
In this case‚ Rahube’s brother‚ Hendsrine Rahube‚ sought to evict her from the house.
Mary and Hendsrine are siblings and moved to the house in Mabopane in 1970 following their removal from the area known as Lady Selbourne.
Mary moved out of the property from 1973 to 1977‚ in order to live with her husband‚ but returned to the property in 1977 and has lived there continuously since then.
Her grandmother died in 1978 and her three brothers moved out of the property during the 1980s and early 1990s.
Hendsrine does not reside on the property‚ nor do any other family members except Mary and her immediate family.
Hendsrine claims he is the lawful owner of the property and relied on a deed of grant issued by the Republic of Bophutatswana in 1988.
Mary said when Hendsrine instituted eviction proceedings against her in 2009‚ she became aware that the rights he held in terms of the deed of grant were converted into full ownership.
She claims that she had not been notified of the change in land tenure rights nor afforded an opportunity to make representations on her own claim to title.
Mary said when tenure rights of Hendsrine were converted into full ownership‚ she lost the opportunity to assert her own interest in the ownership of the property.
She said conversion to full ownership rendered her and her family more vulnerable to the risk of eviction.
Mary said she is the current head of the household and has always been responsible for the expenses relating to the upkeep and maintenance of the property.
Under the apartheid government‚ the property rights of women‚ particularly in township areas‚ was placed under the custody of men. Women could not obtain deeds of grant or certificates in their own names.
Lawyers for Human Rights‚ which represented Mary‚ argued that the gender and racially discriminatory laws that regulated the allocation of houses in the apartheid era allowed only adult males to become the holders of these rights.
It said this continued to cause indirect discrimination against female-headed houses.
In his judgment‚ Judge Jody Kollapen said section 2(1) of the Upgrading Act was unconstitutional to the extent that it provided for the automatic conversion of tenure rights into ownership without any procedures to hear and consider any competing claims to ownership.
Kollapen interdicted Hendsrine from passing ownership or selling the house until such time as Parliament has cured the constitutional defect.
Lawyers for Human Rights‚ which represented Mary Rahube‚ welcomed the judgment.