Cape Town - The Western Cape High Court has put the brakes on the controversial transfer of the ownership of a row of six District Six homes belonging to the Catholic Church.
The court also ordered the Registrar of Deeds to submit a report on the Searle Street property within 30 days.
The landlord is the Order of the Sisters of the Holy Cross, which is ultimately subject to the authority of the Pope.
The current tenants are parishioners who have lived there for many years, until 2013 when one, Sean Savage, stumbled on an online advertisement offering the units for sale.
The property was sold last year to businessman Etienne du Toit for R2.395 million, sparking the tenants’ woes.
Alleged threats of eviction prompted them to go to court to apply for an interdict to prevent the transfer of the property to Du Toit, pending further action they intended taking.
The parishioners submitted that their ancestors lived there for generations, with the consent of the Catholic Church, without a lease and rent free.
The parishioners’ lawyers, Joel Krige and Kara van der Pol, submitted to the court that the church promised his clients’ ancestors that they would never be left without a home, and gave them life-long leases regulated by Canon Law, the system of laws and legal principles made and enforced by the church’s authorities.
The ancestors ceded these rights to the current tenants, with the verbal consent of the Holy Cross.
It was their argument that the Holy Cross breached the agreement by alienating the property to the detriment of their clients’ rights, and also that the historical leases were governed by the constitutional principle of ubuntu.
But the Holy Cross opposed the application, telling the court they had been operating at a deficit since 2012, and that the cottages were a financial drain on their resources. They also submitted that the property did not fall under the Catholic Church.
In a judgment handed down on Thursday, Acting Judge Ashraf Mahomed said the parishioners raised various issues to demonstrate that the balance of convenience favoured the granting of an interdict, including that there was no report from the Registrar of Deeds, which prevented them from putting forward a proper case on the conditions attached to the property.
Referring to submissions on the principle of ubuntu, Judge Mahomed said that in the context of constitutional democracy, property rights needed to structurally evolve in the law so that institutional change could follow.
“The courts have an obligation to infuse elements of grace and compassion into the formal structures of the law applicable,” he added.
Judge Mahomed also said that the tenants’ perception that they were protected under Canon Law because the property belonged to the church was “reasonable, having regard to :
* The intervention by the archbishop and protection from the church to prevent the property from being expropriated along with the rest of the properties in District Six under the Group Areas Act.
* The statement of Sister Loretta Oliphant that the Holy Cross and Catholic Archdiocese of Cape Town were ultimately under the authority of the Pope.
“In my view, heaving regard to the above facts, the balance of convenience favours the granting of the interim interdict in this matter,” he said.
He also gave the Registrar of Deeds 30 days to provide a report on the property, including restrictive conditions relating to the donation of the property and subsequent transfers. Once the report is filed, the parishioners have 30 days to institute proceedings to establish the validity, relevance and ambit of the historical leases and cession agreements.
Weekend Argus