- A Pretoria family challenged a property law after paying nearly R1 million for a home bought through a verbal agreement.
- Judge Nyathi found the law may unfairly exclude vulnerable homebuyers who risk homelessness despite paying significant amounts for their homes.
- The declaration of invalidity has been suspended until confirmed by the Constitutional Court.
A Pretoria family who nearly paid R1 million for a home through a verbal agreement has won a constitutional challenge against a key part of South Africa's property law.
The High Court in the city ruled that vulnerable homebuyers may be unfairly left without legal protection just because their agreements weren't put in writing.
Nomusa Virginia Dlomo and Lefa David Dlomo filed their case against Kobus de Klerk and Elaine de Klerk, along with the Minister of Trade, Industry, and Competition. The applicants asked the court to declare section 2(1) of the Alienation of Land Act unconstitutional, claiming it does not recognise or allow the transfer of residential property from an oral agreement, even if the buyer has paid the full price or most of it while risking homelessness.
The case was unopposed. The De Klerks did not challenge the application, and the Minister submitted a notice to abide without defending the law.
According to the judgment, the applicants are former spouses and parents of two young children who have lived in the property for several years. An earlier written offer to purchase was cancelled and replaced with a verbal agreement where the applicants agreed to buy the property for R1 million.
The family paid almost the entire purchase price directly to the first respondent, mostly using pension benefits. Despite these payments, ownership of the property was never transferred to them.
Later, the respondents refused to proceed with the transfer, citing that Section 2(1) of the Alienation of Land Act requires a written deed of alienation. This left the applicants and their children at risk of eviction and homelessness while they remained in the property.
Home already acquired through sacrifice
Judge J Nyathi found that the case directly involved constitutional rights to housing, dignity, equality, and the best interests of children. The judge pointed out that the applicants were not seeking access to housing for the first time.
“They are not looking for housing for the first time; they already have a home, acquired through considerable personal sacrifice, and now face losing it solely due to Section 2(1) of the Act,” the judgment states.
Judge Nyathi referenced the Constitutional Court authority that emphasises legislation causing loss of an existing home engages the constitutional right to adequate housing and human dignity.
The judge concluded that the applicants were in a position similar to other vulnerable homeowners who have already established homes and now risk losing them due to a technical legal requirement.
Equality challenge succeeds
A key part of the ruling was that the law treats vulnerable buyers differently based on whether they enter into written agreements or verbal ones, even if both groups paid substantial amounts toward a property and face the same risk of homelessness.
According to Judge Nyathi, this distinction creates a form of legislative under-inclusion since one group of vulnerable buyers receives legal protection while another does not.
“Section 2(1) of the Act distinguishes between vulnerable buyers with written agreements and those with oral agreements, even though both may have paid significant amounts and face the same risk of homelessness,” the judge wrote.
The court further found that no reason was given for this distinction. “No government rationale has been provided either in the papers or during arguments to justify excluding vulnerable buyers who acquire residential property through verbal agreements.”
Judge Nyathi determined that the difference lacked a rational basis. “In these circumstances, the differentiation is irrational and violates the right to equality.”
Children's interests considered
The ruling also emphasised the impact of losing the family home on the applicants' children. “The applicants’ minor children live in the property. Section 28(2) of the Constitution states that a child’s best interests are the top priority in every matter concerning the child.”
Nyathi recognised that the threatened loss of the family home would clearly affect those interests.
The court noted that homelessness and the threat of it have been recognised by the Constitutional Court as serious violations of dignity.
Constitutional Court to have final say
After finding that the exclusion in Section 2(1) unjustifiably limited constitutional rights, the court declared invalid the failure of the Alienation of Land Act to allow the transfer of residential property from a verbal agreement where vulnerable buyers have paid the full price or a reasonable portion and risk homelessness.
As a remedy, Judge Nyathi ordered that Section 2(1) include wording stating that verbal agreements for the transfer of residential property are binding and enforceable. “The verbal or oral agreement for the transfer of residential property shall be binding and enforceable.”
However, because the order declares part of an Act of Parliament unconstitutional, it will not take effect immediately.
The declaration of invalidity and the remedial reading were suspended until confirmed by the Constitutional Court. The case has been sent to the highest court in the country for a final decision.
The Minister of Trade, Industry, and Competition was also ordered to pay the application costs, including costs reserved from June 12, 2025.
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