Siblings’ squabble over family home heard by ConCourt

17 May 2018 - 15:57 By Ernest Mabuza
The eviction proceedings were postponed as the high court dealt with her constitutional challenge.
The eviction proceedings were postponed as the high court dealt with her constitutional challenge.
Image: Thinkstock

The Constitutional Court on Thursday heard a case of a brother and sister who are fighting about who should be the rightful owner of a family home.

Hendsrine Rahube brought an application in 2009 to have his sister Matshabelle Rahube evicted from the home in Mabopane in Pretoria as he claimed he was the rightful owner.

Matshabelle only became aware during eviction proceedings that her brother had obtained the legal title to the family home.

Matshabelle opposed the eviction. She also brought an application in the High Court in Pretoria on the basis that section 2(1) of the Upgrading of Land Tenure Act of 1991 was unconstitutional.

The section provides for the automatic conversion of a deed of grant into full ownership and vests exclusive ownership on the person registered as the head of the household in the deed of grant.

The eviction proceedings were postponed as the high court dealt with her constitutional challenge.

The high court last year found that the section of the Upgrading Act was unconstitutional.

The high court said it was unconstitutional insofar as it did not provide the occupants who lacked ownership rights notice to make submissions before the conversion of tenure rights to ownership rights.

The judgment of the high court was brought before the Constitutional Court for confirmation of the unconstitutionality of the Upgrading Act.

Annemarie de Vos SC‚ for Matshabelle Rahube‚ said Hendsrine Rahube premised his ownership of the family home on the deed of grant issued by the Republic of Bophuthatswana in September 1988 in his favour.

She said Hendsrine then became the registered owner of the property following a conversion of the land rights into full ownership in terms of the Upgrading Act.

De Vos said this was despite the fact that Hendsrine had not lived on the property since 1992.

“Ms Rahube lived in that house for many years. By the stroke of a pen‚ she was no longer entitled to stay there.”

She said Matshabelle could not have inherited the house as women at the time were not allowed to inherit property from anyone.

Devos said the Upgrading Act constituted unfair discrimination because its effects were felt by black women who could not be previously registered as holders of land tenure rights.

Hendsrine Rahube’s advocate‚ Nzame Skibi‚ said the brother was not opposing the application by Matshabelle on the constitutionality of the Upgrading Act.

“What he says on the facts of this case is that the provisions of section 2(1) of the Upgrading Act do not apply‚” Skibi said.

Skibi said Hendsrine did not get ownership of the property through the Upgrading Act.

Skibi said Hendsrine obtained a loan for the purchase of the property from the Bophuthatswana Building Society in 1988‚ before the Upgrading Act came into effect in 1991.

The court reserved judgment.