Ismail v Ismail and Others (86) [2007] ZAECHC 3; 2007 (4) SA 557 (E) (8 February 2007)

Ismail v Ismail and Others (86) [2007] ZAECHC 3; 2007 (4) SA 557 (E) (8 February 2007)

The applicant, as the second wife in an Islamic marriage, entered into a 99-year lease with the first respondent for the property at 42 Queens Road, King William's Town. Although the lease was not registered, its terms and the parties' intentions established her right to lifelong occupation. The respondents' attempt to sell the property threatened this right, as an unregistered lease is not binding on purchasers beyond ten years unless they have knowledge of it. The applicant's entitlement to maintenance or constitutional housing rights was not established on the papers and is irrelevant to the relief sought. The only reasonable remedy to protect her right of occupation is an interdict...

Citation
[2007] ZAECHC 3
Parties
Applicant: Toufeeqah Ismail; Respondent: Yusuf Ismail; Respondent: Nasifa Ismail; Respondent: Era Sun Properties
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
8 February 2007
Case Number
2002/06
Procedural Posture
Urgent Application / Return Day of Rule Nisi
Outcome
Interdict granted. The respondents are prohibited from selling the property at 42 Queens Road until they have provided the applicant with equivalent rights in an alternative adequate home.
Judges
Jones
Legal Topics
Interdict, Unregistered Long Lease, Islamic Marriage Rights, Eviction Protection
Land and Property Civil Procedure Interdict Unregistered Long Lease Islamic Marriage Rights Eviction Protection

Case Brief

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Parties

Toufeeqah Ismail

Applicant

Yusuf Ismail

Respondent

Nasifa Ismail

Respondent

Era Sun Properties

Respondent

Procedural Posture

Urgent Application / Return Day of Rule Nisi

Legal Issues

  1. 1 Whether the applicant, as a second wife in an Islamic marriage, has a right to interdict her husband and his first wife from selling her home in respect of which she holds an unregistered 99-year lease.
  2. 2 Whether the applicant has established a clear right to the property and a threatened violation justifying an interdict.
  3. 3 Whether maintenance or constitutional rights to housing are relevant to the relief sought.

Ratio Decidendi

The applicant, as the second wife in an Islamic marriage, entered into a 99-year lease with the first respondent for the property at 42 Queens Road, King William's Town. Although the lease was not registered, its terms and the parties' intentions established her right to lifelong occupation. The respondents' attempt to sell the property threatened this right, as an unregistered lease is not binding on purchasers beyond ten years unless they have knowledge of it. The applicant's entitlement to maintenance or constitutional housing rights was not established on the papers and is irrelevant to the relief sought. The only reasonable remedy to protect her right of occupation is an interdict...

Court Disposition

Interdict granted. The respondents are prohibited from selling the property at 42 Queens Road until they have provided the applicant with equivalent rights in an alternative adequate home.

Orders

  • Paragraph 1 of the rule nisi is confirmed.
  • Final order incorporating the terms of paragraphs 3.1, 3.2, and 3.3 of the notice of motion, with references to maintenance deleted.