Page 40 - Litigating Land and Housing in South Africa: Lessons and Reflections

4 4 1 4 4 3 Revival of title deeds
One of of of of of of the the the the the major obstacles in in in in in this case case has been the the the the the Registrar Registrar of of of of of of Deeds Deeds The practice in in in in in the the the the the Brusson cases is is is is is to to include a a a a a a a a a a a a a a a a specific prayer ordering the the the the the the the the the Registrar Registrar Registrar of of of of of of of of Deeds Deeds Deeds in in in in in in terms of of of of of of of of section 6(2) of of of of of of of of the the the the the the the the the Registries Act 47 of of of of of of of of 1937 to to to revive revive the the the the the the title title deeds
of of of of of of the the the the the the clients Unfortunately this has led to to to to a a a a a a a a a a a a a a a a a a further complication in in in in that that the the the the the the Registrar Registrar Registrar of of of of of of Deeds Deeds Johannesburg refuses to to to to to revive revive a a a a a a a a a a a a a a a a a a a a a a title title deed deed based on on on an an an an order The Registrar Registrar requires that that a a a a a a a a a a a a a a a a a a a a a a conveyancer attends to to to to to the the the the the process but LRC LRC clients are are unable unable to to to to to afford this this service service and due to to to to to the the the the the value of the the the the the properties they are are unable unable to to to qualify for for for pro pro pro pro bono conveyancing services The LRC LRC is is is currently considering the the the the the appropriate solution for for for this this development 4 4 4 1 4 4 4 4 4 4 Class Action
Initially when the the the the the LRC agreed to to take on on on on the the the the the Brusson Brusson cases a a a a a a a a a a a a a a a a a class action was was envisaged to to obtain redress for all all victims of the the the the the the Brusson Brusson Scheme The starting point was was a a a a a a a a a a a a a a a a a a a a a a a a a test case case case – the the the the the the Moore case case case discussed above However the the the the the the Constitutional Court decision in in in in in in in in in in the the the the the the the the the the matter turned not on on on on on on on on an an an overriding legal principle applicable in in in in in in in in in in all circumstances but rather on on on on on on on on the the the the the the the the the the intention intention of of of of the the the the the the the the the the original original owner owner owner If the the the the the the the the the the original original owner owner owner had no no no intention intention to to to to transfer transfer transfer the the the the the the the the the the property to to to to the the the the the the the the the the investor then – – because of of of of of the the the the the the the the the the the “abstract theory of of of of of transfer transfer transfer of of of of of ownership” – – no no no transfer transfer transfer took place in in in in in in in law Intention is is is is completely subjective Once this decision was was was was handed down there was was was was no no no way to to to prove intention on on on on on on on the the the the the part of of of of each original owner except on on on on on on on on a a a a a a a a a a a a a a a a a a a a a a a a case case by case case basis A class action was was was was no no longer possible The result was was was was taxing repetitive and resource heavy litigation litigation which required the the LRC to to to depart from its primary strategic litigation litigation activities to to see the Brusson cases to to finality 4 1 5 Implementation of the judgment
This case has restored tenure security for a a a a a a a a a large group of of people who came close to to to losing their homes due to to to the the the the devious and and and underhand conduct of of the the the the the Brusson scheme The The litigation produced positive outcomes and and and the the the the the LRC remains committed to to to assist the the the the individual applications to to to finality The The Moore case case set a a a a a a a a a a a a a a a a a a a a precedent that has been applied in in fin in subsequent cases and served to to to unravel other similar fraudulent schemes There have also been unexpected issues that arose in in the the the process of of implementing the the the orders The The issue issue of of rates and taxes has had an an an unintended impact on on the the the clients clients Many of of our clients clients have become pensioners since the the start of of the the Brusson scheme and no longer receive an an income Reaching pensionable age qualifies a a a a a a a a a a a a a a a a home owner to apply for a a a a a a a a a a a a a a a a rebate on on municipal rates and taxes However as the the properties are in the the names
of the the the the investors the the the the owners are unable to to apply for for the the the the rebate rebate as the the the the the municipalities do not allow for for anyone else apart from the the the the owner to to receive a a a a a a a a a a a rebate rebate After the the the the the title deeds
are are revived the the the the the clients are are plunged into debt due to to the the the the outstanding rates and and taxes on the the the the properties The LRC is is currently communicating with the municipalities to to attempt to to resolve this 40
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS