ConCourt gives theology school a lesson in property law

The Constitutional Court has come to the University of Johannesburg’s (UJ) rescue.

It ruled in the institution’s favour in a case involving land UJ leased to a school of theology 25 years ago.

The property, 51 Richmond Avenue, a seven-minute walk from the university’s Kingsway Campus, is seen by UJ as a critical resource.

It intends to use it for much-needed student accommodation.

UJ’s predecessor, Rand Afrikaans University (RAU), leased the land to the Auckland Park Theological Seminary (ATS) in 1996 for 30 years.

The reason for the lease was to allow ATS, which had an agreement with the university to offer higher-education degrees at both institutions, to build its theological college.

ATS paid RAU a one-off rental of R700,000.

But ATS never established a theological college on the property, instead ceding its rights under the lease agreement to Wamjay, a private company, in March 2011.

Wamjay paid R6.5m to ATS for the right to take possession of the land.

Neither ATS nor Wamjay notified UJ of this.

The university became aware of the deal a year later, cancelled the lease agreement and sought to evict ATS and Wamjay.

In March 2017, the Johannesburg high court granted an order for the eviction of the two.

However, ATS and Wamjay approached the Supreme Court of Appeal, which upheld their application in March 2021.

This prompted UJ to appeal against the decision before the Constitutional Court.

The university argued that it could never have been intended by UJ and ATS, when concluding the lease, that the land could go to an entity not involved in higher learning.

In an unanimous judgment on Friday, the Constitutional Court upheld UJ’s appeal, saying in ceding the rights to

Wamjay, ATS repudiated its agreement with the university.

The court said this repudiation was of a sufficiently serious manner — preventing the entire purpose of the lease from continuing — to justify UJ’s subsequent cancellation of the agreement.

“The university feels vindicated in the stance it took from the beginning of the litigation,” UJ spokesperson Herman Esterhuizen said after the judgment.