Unlawful sale of state-subsidised houses by the Cape Town community housing company

Mathiso, Chwayita

Unlawful sale of state-subsidised houses by the Cape Town community housing company

Master Thesis

2022

Abstract

This dissertation clarifies the protections available to housing subsidy beneficiaries who purchase houses through credit agreements. I look at the legislative framework that protects the right to access to housing in terms of section 26 of the Constitution. I consider a Constitutional Court case Amardien and Eleven Others v Cape Town Community Housing Company 2019 (2) BCLR 193 (CC) which established that sections 19 of the Alienation of Land Act and 129 of the National Credit Act give the procedural steps that a developer needs to take before it can cancel the sale agreement with subsidy beneficiaries to lawfully cancel such agreements giving effect to the right to housing. The case study determined that where disputes arise, both the National Credit Act and Alienation of Land Act provisions apply in the enforcement of the agreements. The beneficiaries' purchases of their houses must be registered to protect them from the seller selling their properties to third parties. The seller does not remain the property owner and is precluded from repossessing the houses and selling them to third parties without a court order. I argue that such conduct amounts to an unjustified infringement of their housing rights and constitutes an arbitrary deprivation of property. Judicial oversight is required in determining whatever enforcement mechanisms that are appropriate in the circumstances of default by the beneficiaries. I discuss the State's obligations in terms of the Housing Act and international law in the enforcement of the subsidy agreements by the Company relating to the beneficiaries' right to housing. I discuss how the State breached its obligations by failing to fulfil its obligations and the impact of such failure on the beneficiaries.

Keywords

public law

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