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effect. This statute provides specifically that before the Bank makes any
payment of a loan, it must convey in writing to the Registrar of Deeds
information about the advance which includes the amount due and
the date. The Registrar makes a note in its registers and endorses the
title deed of the property to that effect. This note creates a charge upon
the property in favour of the Bank until the amount of the advance
together with interest and costs has been paid.

Section 118(3), however, does not attempt to establish a similar
publicity requirement in order to have the rights enforceable against
third parties. The two provisions use the same language but the Land
and Agricultural Development Bank Act holds the logical outcome
that secures transmissibility, namely registration by public act in the
register of deeds.

When legislation creates a transmissible charge upon immovable
property, registration in the deeds registry is required. Its absence from
section 118(3) provides a clear indication that the charge takes effect
only against the current owner and not their successors.

The Court further considered that the Bill of Rights in the Constitution
prohibits arbitrary dispossession of property, which would happen if
debts without historical limit are imposed on a new owner. To avoid
unjustified arbitrariness in violation of section 25(1) of the Constitution,
the Court held that section 118(3) of the Systems Act must be interpreted
so that the charge it imposes does not survive transfer to a new owner.

The Constitutional Court therefore found that section 118(3) is not
unconstitutional and that it should be interpreted so that the charge Property
does not survive transfer to the new owner and thereby confirmed that,
upon transfer of a property, a new owner is not liable for debts arising
before transfer from the charge upon the property under section
118(3). By so doing, our highest court finally confirmed the position
and provided much needed legal certainty on the matter.

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