The short answer
The only legal way the deeds can be transferred is if your sister buys or inherits the house.
The whole question
My mom passed away three weeks ago and has been living in a council-owned house for almost 40 years. She was married and divorced in line with Muslim rights about 30 years ago. The property has always been in my dad’s name even though he left 30 years ago and has never made payments towards the property rates.
Many times my mom had to make arrangements with the council, otherwise she would’ve been homeless. She has been to various departments to try and get the property signed over to her but to no avail, since her name is not on the deeds paper. My father now wants to sell the property on which my sister and her three kids have been living for many years. She has been helping my mom pay the rent and arrears on the property.
My dad has tried selling the property a number of times. What can we do as the children to prevent this from happening, as I feel that he needs to relinquish his rights to the property?
The long answer
Thank you for your email asking how you can prevent your father from selling the council house over the heads of his children, now that your mother who occupied the property with her children for 30 years, has died.
It is certainly true that all women married and divorced under Muslim law are profoundly disadvantaged; that is why the Constitutional Court ruled in 2018 that the law must be changed within two years to recognise Islamic marriages on the same basis as non-religious marriages, and that the Divorce Act would also then apply to Islamic marriages.
But the fact that your father has never contributed to the rates or upkeep of the house after he and your mother divorced, does not take away from the rights he has over the property by virtue of holding the deeds in his name.
The only legal way the deeds could be transferred to your sister is if she bought it from him, or inherited it from him.
He can sell the property if he chooses to, but your sister and her children cannot be evicted without a court order. The application for a court order must be given to your sister in good time so that she can be present in court on the day of the application to put her side of the story. She can be represented by lawyers or Legal Aid if she cannot afford a lawyer. The courts are required to be just and fair when considering granting such an order.
Perhaps you could consider approaching the Muslim Judicial Council for advice on how to deal with the situation. They also have a Mediation, Arbitration and Conciliation Department. They may be able to help stop your father from selling the house where his daughter and grandchildren have always lived. It may be that pressure can be brought in terms of the responsibility of men to provide safety, protection and sustenance to women under Islamic law, and that your father is not behaving as a man is expected to behave.
These are their contact details:
Muslim Judicial Council
Tel: 021 684 4606
20 Cashel Avenue, Athlone.
Mediation, Arbitration & Conciliation Department
Phone: 021 684 4606
Email: mediation@mjc.org.za
Whether or not your father is a devout Muslim, institutions like the MJC can play a role in making people realise that their behaviour is being publicly scrutinised. They may not wish to appear publicly irresponsible and heartless.
Answered on Sept. 11, 2020, 1:26 p.m.
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