A.S v E.S and Others (26186/09) [2010] ZAWCHC 212 (24 August 2010)

A.S v E.S and Others (26186/09) [2010] ZAWCHC 212 (24 August 2010)

The court found that the City of Cape Town's housing policy discriminates unfairly against women by requiring them to be breadwinners or have dependants to qualify for ownership, while men only need to be married. This discrimination is on the listed ground of gender and is presumed unfair under section 9 of the Constitution. The policy and contractual arrangements that exclude the applicant from ownership are contrary to public policy as now informed by constitutional values. The court held that the applicant is entitled to have the property transferred into her and the first respondent's names in equal shares, as the policy and agreement giving sole ownership to the first respondent are...

Citation
[2010] ZAWCHC 212
Parties
Applicant: A S; Respondent: E S; Respondent: THE CITY OF CAPE TOWN; Respondent: THE REGISTRAR OF DEEDS
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 August 2010
Case Number
26186/09
Procedural Posture
Urgent Application / Final Judgment on Application for Interdict and Transfer of Property
Outcome
Application granted in part; interdict and order for joint transfer of property.
Judges
Fortuin
Legal Topics
Gender Discrimination, Right to Housing, Public Policy Contracts, Security of Tenure
Constitutional Law Land and Property Gender Discrimination Right to Housing Public Policy Contracts Security of Tenure

Case Brief

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Parties

A S

Applicant

E S

Respondent

THE CITY OF CAPE TOWN

Respondent

THE REGISTRAR OF DEEDS

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application for Interdict and Transfer of Property

Legal Issues

  1. 1 Is the City of Cape Town's housing policy discriminatory on the basis of gender?
  2. 2 Is the discrimination lawful or justified under the Constitution?
  3. 3 Is the applicant entitled to have the property transferred into her and the first respondent's names in equal shares?

Ratio Decidendi

The court found that the City of Cape Town's housing policy discriminates unfairly against women by requiring them to be breadwinners or have dependants to qualify for ownership, while men only need to be married. This discrimination is on the listed ground of gender and is presumed unfair under section 9 of the Constitution. The policy and contractual arrangements that exclude the applicant from ownership are contrary to public policy as now informed by constitutional values. The court held that the applicant is entitled to have the property transferred into her and the first respondent's names in equal shares, as the policy and agreement giving sole ownership to the first respondent are...

Court Disposition

Application granted in part; interdict and order for joint transfer of property.

Orders

  • The City of Cape Town is interdicted from passing transfer of Erf 30509, Belhar, solely to the first respondent.
  • The property is to be transferred to both the applicant and the first respondent in equal shares when transfer becomes due.