It is declared that the failure of the Alienation of Land Act 68 of 1981 to permit and regulate the transfer of residential property arising from oral or verbal agreements, particularly where vulnerable purchasers have performed substantially or in full under such agreements, unjustifiably limits constitutional rights and is accordingly inconsistent with the Constitution and invalid.
Pending legislative intervention, and with effect from the date of this judgment, section 2(1) of the Act is to be read as including the following provision:
“The alienation of land after the commencement of this section shall include a deed of alienation signed by the parties or by their agents acting on their written authority. A verbal or oral agreement for the transfer of residential property shall, in appropriate circumstances, be recognised as valid, binding, and enforceable.”
The declaration of constitutional invalidity, together with the reading-in remedy, is suspended pending confirmation by the Constitutional Court.
This full judgment below, is referred to the Constitutional Court of South Africa for confirmation in terms of section 172(2)(a) of the Constitution.
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
