Jargon of apartheid still taints title deeds

CAPE TIMES

Attorney Ighsaan Sadien points out the Constantia land the Land Claims Court awarded his family. The family lost the Sillery Farm property. Picture: JEFFREY ABRAHAMS

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Cape Town - If its title deed were to be believed, no “non-European” may live on a prime property in the heart of Constantia unless they’re a domestic or farming servant.

But lawyers say this is nothing for the Sadien family to worry about.

The Land Claims Court recently awarded the property to the Sadiens, who were forced out of Constantia in 1963 under the Group Areas Act which reserved the area for whites only. The multi-million-rand government-owned 8.9ha property partly borders Brommersvlei Road and Rathfelder Avenue.

While it is unclear exactly what the property is worth in its current state, its value has been estimated at R210m to R250m should it be sub-divided into plots and installed with services.

According to a deed of transfer attached to its title deed, the land was expropriated in June, 1966 and comes with several conditions. A number of them have to do with race, others pertain to access to a stream on the land.

One “special condition” imposed by a previous owner reads: “The property hereby sold or any portion thereof shall not be transferred to any non-European nor shall any non-European be allowed to occupy or lease the said property or any portion thereof. The aforesaid restriction shall, however, not apply to domestic servants and servants employed in connection with farming.”

Outdated title deeds such as this are not unusual, real estate and property law experts say. Title deeds often lay untouched for decades. But existing legislation does away with property restrictions on racial lines.

Bobby Bertrand, a partner at Bowman Gilfillan, said while the legislation had been in place since before 1994, title deeds often remained unchanged unless there was a change in the ownership of the property.

Should the owner of a property want to change their title deed it would require them to lodge a special application.

Maryna Botha, senior associate at Smith Tabata Buchanan Boyes, said a title deed did not change unless there was some activity which brought it to the attention of the registrar of deeds.

Although the deeds office had its own internal system, title deeds were held by the property owner and the deeds office could not simply update deeds, which would result in the creation of “two versions of the same thing”.

“It’s more for legal certainty. As a general principle, they can’t make changes to a title deed.”

Once it was brought to the attention of the deeds office, it was changed.

“Those title deeds that do have that kind of restriction might be around for a long time, but they’re not valid or enforceable,” she said.

Bertrand said anyone who tried to push for the validity of such racist restrictions “wouldn’t stand a chance”.

leila.samodien@inl.co.za

Cape Times