ROBERT Martindale, the lawyer who represented property owners in a Constitutional Court case relating to the legislation governing property transfers, says the court's judgment has been misunderstood and it does not signal the end of litigation on the matter.
The Constitutional Court recently handed down a judgment which said the laws that municipalities apply to receive payment of water and electricity accounts were not unconstitutional. The ruling meant municipalities could still demand settlement of outstanding rates and services before a property could be transferred to the new buyer.
But Martindale, a constitutional and administrative law specialist, says that before landlords and other stakeholders in the property industry pay for the water and electricity accounts run up by tenants, they should wait for the results of Johannesburg High Court litigation, which could resolve issues the Constitutional Court did not decide.
The landlords' Constitutional Court challenge was initiated by a group of landlords the Transfer Rights Action Campaign, represented by Martindale against the Johannesburg and Ekurhuleni municipalities. This was an offshoot of the Johannesburg High Court litigation.
The campaign's high court case was suspended until the Constitutional Court made a finding on the constitutionality of the laws, and is still pending.
Martindale says the Constitutional Court did not decide landlords were liable for their tenants' debt. Neither did it say landlords had to pay tenants' debt to obtain a clearance certificate.
The court also did not rule out the possibility that municipalities may have to refund property owners who paid their tenants' debt solely to proceed with a transfer.
Martindale says these are some of the matters that still need to be adjudicated based on evidence in the Transfer Rights Action Campaign's pending high court case.
Brian Kirchmann, CEO of property owners' association Sapoa which has also been fighting the matter on behalf of property owners says that the organisation is not going to throw in the towel and is seeking a fair ruling.
"I think we should pursue certain issues that have not been covered by the Constitutional Court," Kirchmann says.
We are investigating to gain clarity on what the Constitutional Court has addressed and given a ruling on, and will also investigate issues that are still unresolved."
Publisher: Business Day
Source: Business Day
