Minister of Human Settlements, Western Cape Government v Bamba and Others (619/2015) [2015] ZAWCHC 164 (29 October 2015)

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[2015] ZAWCHC 164
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Minister of Human Settlements, Western Cape Government v Bamba and Others (619/2015) [2015] ZAWCHC 164 (29 October 2015)

SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 619/2015
DATE:
29 OCTOBER 2015
In
the matter between:
THE
MINISTER OF HUMAN SETTLEMENTS,
WESTERN
CAPE
GOVERNMENT
.......................................................................................
Applicant
And
KOLISWA
ROSE
BAMBA
..........................................................................................
First
Respondent
NOMONDE
PATIENCE
LUWACA
.......................................................................
Second
Respondent
MATIWANA
TOM
.....................................................................................................
Third
Respondent
SILUMKO
MAQOQA
.............................................................................................
Fourth
Respondent
NONTSOMI
MAQOQA
..............................................................................................
Fifth
Respondent
ESTATE
NTOMBOTHINI
SAZINGE
......................................................................
Sixth
Respondent
MZAWNDILE
MICHAEL
KONISANI
................................................................
Seventh
Respondent
SINDISWA
LYNETTE
KONISANI
........................................................................
Eighth
Respondent
ESTATE
WANI
MTHETHI
.......................................................................................
Ninth
Respondent
ESTATE
NOMAHOMBA
MTHETHI
......................................................................
Tenth
Respondent
PRIMROSE
HOMVUME
TYALI
.......................................................................
Eleventh
Respondent
NONTUTHUZELO
MAVIS
MANQUPHU
..........................................................
Twelfth
Respondent
SIZWE
JONGILE
..............................................................................................
Thirteenth
Respondent
SINDISWA
MARGARET
JONGILE
..............................................................
Fourteenth
Respondent
LAMLA
WELCOME
NTETA
.............................................................................
Fifteenth
Respondent
ESTATE
NOMATHAMSANQA JANET
NTETA
.............................................
Sixteenth
Respondent
NOMANDLOKWENYANI
MATUSELA
......................................................
Seventeenth
Respondent
ESTATE
JELIAT GERMS
GQOZONGWANE
..............................................
Eighteenth
Respondent
ESTATE
NOBAYEZA VONOLIA
GQOZONGWANE
..................................
Nineteenth
Respondent
NIKIWE
MARIE
MANYEFANE
......................................................................
Twentieth
Respondent
ESTATE
DRUMMOND ZOLA
MANYEFANE
...........................................
Twenty
First Respondent
ESTATE
NOKAYA
MAHLOMBE
............................................................
Twenty
Second Respondent
ZILANDILE
MXATULE
.............................................................................
Twenty
Third Respondent
NTOMBOXOLO
MIRRIAM MXATULE
...............................................
Twenty
Fourth Respondent
BONGANI
ZILWA
.........................................................................................
Twenty
Fifth Respondent
THELMA
NOMSANGAPHI
ZILWA
..............................................................
Twenty
Six Respondent
FEZIWE
FELICIA
MPANDE
..................................................................
Twenty
Seventh Respondent
KHAYALETHU
MARWAYI
......................................................................
Twenty
Eighth Respondent
ZWELITSHA
NONTSWABU
......................................................................
Twenty
Ninth Respondent
NOMNANDIPHI
NONTSWABU
........................................................................
Thirtieth
Respondent
RICHARD
WINGET
TSHULISI
...................................................................
Thirty
First Respondent
NONTOMBIZITENI
MAVIS
TSHULISI
..................................................
Thirty
Second Respondent
NOWEKENI
TOZI
NELANI
........................................................................
Thirty
Third Respondent
JOSEPH
NGQABA
......................................................................................
Thirty
Fourth Respondent
NOMTETO
ADELAIDE
NGQABA
...............................................................
Thirty
Fifth Respondent
NOBEJILE
NOTETANGAYE
GONGOTA
..................................................
Thirty
Sixth Respondent
ESTATE
FORTY
KIBI
...............................................................................
Thirty
Seventh Respondent
ESTATE
NOFINISH
KIBI
...........................................................................
Thirty
Eighth Respondent
NOMATHEMBA
ESTHER
MATIWANE
....................................................
Thirty
Ninth Respondent
ESTATE
ZINAKILE JOSEPH
MATIWANE
......................................................
Fortieth
Respondent
NOCOUNTER
MAVIS
MKRWEQANA
.........................................................
Forty
First Respondent
ESTATE
XHAKALEGUSHA MKRWEQANA
..........................................
Forty
Second Respondent
LINCOLIN
THOBILE
GQOLA
.....................................................................
Forty
Third Respondent
CITY
OF CAPE
TOWN
................................................................................
Forty
Fourth Respondent
REGISTRAR
OF DEEDS, CAPE
TOWN
......................................................
Forty
Fifth Respondent
SURVEYOR
GENERAL, CAPE
TOWN
........................................................
Forty
Sixth Respondent
STANDARD
BANK OF SOUTH
AFRICA
................................................
Forty
Seventh Respondent
JUDGMENT
DELIVERED ON 29 OCTOBER 2015
RILEY,
AJ
[1]
This is an application to enable two groups
of property owners and the Western Cape Government (‘the WCG’)
to obtain
the correct title deeds to their respective properties
situated at Philippi in the Municipality of Cape Town.
[2]
The
affected properties are subdivisions of erf [3……]
Philippi and are depicted in the general plan, number 1671/1993,
as
part of the Philippi allotment area in the Municipality of Cape
Town.  A copy of sheets 1, 3, and 4 of the general plan,
an
image map and an orientation map are attached to the applicant’s
founding affidavit with the affected property marked
on the image and
orientation maps (Annexure “
E 1
”).
[3]
Towards the
end of the 1980s the acquisition of undeveloped and unoccupied
property in the Philippi allotment area of greater Cape
Town was part
of a provincial programme aimed at relieving the housing backlog,
especially for occupants of informal settlements
in the Crossroads
area.  During the period 1991 and 2005 this area became part of
a provincial project aimed at providing
an integrated approach to the
development of communities.  The project was known as the
integrated Serviced Land Projects
(‘iSLP’).
[4]
It is
common cause that an error occurred, the exact manner in which it
came about being unknown, which resulted in the incorrect
numbering
of the affected erven on the ground in relation to the erf numbers
reflected on the general plan.  As a result of
the error, the
registration of transfers at the Deeds office was done according to
the incorrect erf numbers.  After the transfers
were registered,
the owners of the affected properties were left with incorrect deeds
for their own properties.
[5]
With
respect to the first group of properties comprising erven with
numbers 3.... to 3..... the person or family originally identified
as
occupants of the service sites (“beneficiaries”) hold the
title deed to their neighbour’s property in a numerical

sequence one less than the number of their own property, example the
beneficiary of erf [3…….] incorrectly holds
the title
deed of erf [3……] and so on.  The beneficiary
earmarked for ownership of erf [3……] does
not have any
title to this property.  The WCG holds incorrect title to two
erven in this group of affected properties, namely,
erf [3……]
and erf [3…..].  The title to erf [3……]
should have been over erf [3….].
Erf [3….] is
occupied by the lawful beneficiaries of this erf who jointly and
incorrectly holds title to erf [3…..].
The WCG hold
title to erf [3…..] instead of erf [3…..].
[6]
There are
two bonds held by Standard Bank (‘the forty seventh
respondent’), incorrectly registered and secured over
an erf in
this group of properties, namely erf [3…..].  The title
deed is incorrectly endorsed as well.  The forty
seventh
respondent made loans to the beneficiary who occupies erf [3……]
but holds title to erf [3…..].
[7]
With regard
to the first group of affected properties, the outcome that the
applicant seeks to achieve would be to:
7.1
place the beneficiaries with the correct title to the erven they
occupy;
7.2
provide the WCG with the title to erven [3…..] and [3…..],
to enable the applicant to pass title
to beneficiaries assigned to
these properties; and to
7.2
provide a solution to the lender and the borrower in the case of the
bonds incorrectly registered and endorsed
over erf [3…..].
[8]
In the
second group of properties comprising erven with numbers [3….]
to [3…..] the beneficiaries of each of the properties
involved
hold the title deeds to their neighbours’ properties in a
numerical sequence one greater than the actual number
of their own
properties, for example, the beneficiary of erf [3……]
holds the title deed to erf 3644.  The WCG
holds incorrect title
to one erf in this group of affected properties, namely erf [3…..]
instead of erf [3…..].
Erf [3…..] has been
assigned to a beneficiary, the latter being unable to obtain title to
the property.
[9]
In this
group of affected properties, two of the original beneficiaries
assigned joint ownership of one residential property occupy
a portion
of erf [3…..] which is zoned as a public open space.
They incorrectly hold the title deed of the neighbouring
erf, namely,
erf [3…..].  As appears later herein, the resolution of
this particular error is subject to other legal
processes and shall
be pursued independently of the orders sought in this application.
[10]
The outcome of this application with regard to the second group of
affected properties would be to:
10.1
Provide the affected beneficiaries with the correct title deeds to
their
properties, and to
10.2
Provide the WCG with the title to erf 3649 and thus enable the
applicant
to pass title to the beneficiary assigned to this property.
[11]
In the main the
applicant seeks orders for either a renumbering of the affected erven
on the general plan 1671/1993 or a rectification
of transfers to
create a situation where the affected parties are placed with the
correct title deeds to their properties.
[12]
The application is unopposed.  At the
outset I must express my gratitude to Mr Bhoopchand, counsel for the
applicant, for his
detailed heads of argument, his submissions and
his efforts in assisting the court in arriving at the conclusion it
ultimately
reached considering the peculiar circumstances of this
matter.  It is further necessary to mention that the nature of
the
final orders sought was dependent on the reports and
recommendations of the Registrar of Deeds (i.e. the forty fifth
respondent)
and the Surveyor General (i.e. the forty sixth
respondent).  This court is indebted to them for the reports
that they submitted
and for their positive and constructive
engagement with the applicant, the State Attorney and counsel for
applicant, in finding
a solution to the problem that the applicant
and the respondents are confronted with.
[13]
The background facts are essentially common
cause, are not in dispute and are set out in the founding affidavit
of Lionel Cornelius
Pieter Esterhuizen (‘Esterhuizen’)
and the heads of argument of Mr Bhoopchand.  For the sake of
convenience I
have taken the liberty of referring extensively to it.
BACKGROUND
TO THIS APPLICATION
[14]
The background
to this application is that Erf [3…..], Philippi, in the
Philippi Allotment area, Municipality of Cape Town,
Western Cape
Province, was approved for subdivision in terms of Section 19(1) of
the Less Formal Township Establishment Act No.
113 of 1991, by the
Department of Community Services, Western Cape, on the 7
th
October 1992.  The parent erf was surveyed in February 1993 and
subdivided into 518 erven and 8 public spaces.  The erven
were
numbered consecutively from erf number [3……] to erf
number [4…..].  General Plan number 1671/1993
of the
subdivisions of erf [3…..] Philippi, as reflected in annexure
“E1”, and the diagram was approved by the
Surveyor
General in terms of the Land Survey Act, Act No 8 of 1997, on 30
April 1993.  The parent erf as subdivided was incorporated
into
the Western Cape integrated Serviced Land Project and the erven were
made available to beneficiaries.
[15]
The beneficiaries were allocated serviced
land and were assisted by building contractors to build their homes.
The national
housing subsidy was accessed on behalf of the
beneficiaries to finance their acquisition of land and the building
of houses.
The overall management of the land and housing
project was outsourced by the WCG to a professional resource team BKS
(Pty) Ltd
(“BKS”), who in turn sub-contracted various
tasks to other entities.  The registration of transfers from the
WCG
to the beneficiaries was entrusted to Gibb Africa who in turn
employed conveyancing attorneys Heunis and Heunis to do the
conveyancing.
The WCG oversaw the project and administered the
applications for subsidies.
[16]
From the information contained in the
copies of the title deeds which forms part of the application, the
bulk of the affected erven
were acquired by the beneficiaries in 1998
and registered in the year 2000.  In and during 2012 an occupant
of one of the
erven in this area was unable to obtain transfer of the
erf he occupied.  He sought help from a non-governmental
organisation,
known only as Level Ground, to assist him to obtain
transfer of the erf allocated to him.  Upon investigation Level
Ground
discovered that a number of beneficiaries in the first group
of properties comprising erven 3747 to 3768 were affected by an error

that had occurred during the transfer process of land from the WCG to
the beneficiaries.  The affected beneficiaries held
the title
deeds to their neighbour’s property in a numerical sequence one
less than the number of the erf they occupied.
The occupant of
the first erf in this sequence, i.e. erf [3……], had no
title deed at all.  The beneficiary of
erf number [3…….]
held the title deed to erf [3…..] with the error being
perpetuated sequentially.  According
to Level Ground the error
occurred due to the incorrect numbering of the erven when erf numbers
were painted onto the toilet structures
built on these erven.
They established that the numbers painted onto the toilet structures
differed by one from that reflected
on the general plan.  The
beneficiaries obtained the incorrect title deeds to their properties
as it appears that the registration
of transfers was done in
accordance with the incorrect numbering of the toilet structures on
the erven.
[17]
Level Ground attempted to correct the
problem with the co-operation and agreement of all affected parties
by rectification of the
transfers.  Level Ground was however
unsuccessful due to
inter alia
the following facts and circumstances:
1.
The time period that had elapsed from the
allocation and the registration of transfer of the properties to the
discovery and reporting
of the error;
2.
They were unable to obtain the
documentation required for rectification of transfers;
3.
The various affected parties did not give
their co-operation in the process.
[18]
On 31 July 2012 Level Ground referred the
matter to Alderman Ian Neilson of the forty-fourth respondent (The
City of Cape Town)
on 31
st
July 2012. The forty-fourth respondent in turn referred the matter to
Esterhuizen, a director with the applicant responsible for
land and
asset management.  Esterhuizen caused an investigation to be
conducted in the area to determine the extent of the
problem.
The investigation revealed that in addition to the first group of
properties a second group of erven were also affected.
The
second group comprised erven numbers [3……] to [3…..].
In this group of erven, the beneficiaries
held the title deeds of
their neighbours’ erfs in a numerical sequence one greater than
the erfs they occupied.
[19]
It is common cause that BKS, Gibb Africa
and Heunis and Heunis did not retain any of the documentation
relating to their involvement
in this project and the whereabouts of
Level Ground are unknown.  As the documentation relating to this
project is no longer
available, applicant found himself in a
situation where he could shed no further light on how the errors
occurred.
THE
EXTENT OF THE ERRORS
[20]
In the first group of affected properties
comprising erven [3…..] to [3……] the two erven
situated at the ends
immediately adjacent to this group, i.e. erf
[3…..] and erf [3……], are public open spaces.
The title
deeds to these erven are registered in the name of the WCG
but ownership vests in the forty fourth respondent in terms of the
provisions
of the Less Formal Township Establishment Act.  The
beneficiary of erf [3……] does not have a title deed.
[21]
On the available evidence the title deed to
erf [3…..] is endorsed with two bonds registered in the name
of the forty seventh
respondent.  The twenty seventh respondent
is the recipient of the two loans from the forty seventh respondent.
The
twenty seventh respondent occupies erf [3…..].  The
incorrect title deed to erf [3…..] is held between the twenty

seventh respondent and the forty seventh respondent.  In effect
the twenty seventh respondent has two loan agreements with
the forty
seventh respondent but the latter has no security for the loans that
it has made to the former.
[22]
The WCG holds the title deeds to erven
[3……] and [3….].  The WCG should in fact
hold title to erven [3…..]
and [3……]
respectively.
[23]
In the second group of affected properties
the extent of the problem is slightly more complex.  [Erf 3……]
is
zoned for public use as a public open space.  The WCG holds
title to this property although ownership vests in the forty fourth

respondent in terms of the Less Formal Township Establishment Act.
[24]
It further appears that the thirty first
and the thirty second respondents who jointly and incorrectly hold
the title deed to [erf
3….] occupy a portion of [erf 3…..],
which is public open space.  I pause to mention here that
applicant does
not seek orders in this application to place the
thirty first and thirty second respondents in possession of the
correct title
deed to the property they occupy.  What is clear,
is that applicant seeks to find and provide a solution for the thirty
first
and thirty second respondents, whether it be in the form of the
rezoning of the portion of the public open space or otherwise.
[25]
[Erf 3……] is a 25 square
metre plot.  It houses an overhead light mast.  The title
deed to this property
is registered and held by the WCG.
[26]
The beneficiary of [erf 3……]
does not have a title deed.
[27]
The WCG holds title to [erf 3…..] in
this group of affected erven instead of erf 3649.  The applicant
intends passing
transfer of [erf 3……] to the
beneficiary assigned to this property once the orders in this
application are realised.
PROBLEMS
CAUSED BY THE ERRORS
[28]
The applicant accepts that as long as the
affected respondents do not hold the correct title deeds to their
properties, they will
experience difficulties in raising finances to
improve their properties, selling their properties and passing on
their properties
to their heirs, on death.  The affected
respondents will not be able to access the national housing subsidy
as the subsidies
that they are entitled to have been accessed and
registered in their names and used on their behalf to provide finance
to the project
to provide them with homes.
[29]
The applicant is unable to transfer erven
[3…..], [3…..] and [3…..] to the beneficiaries
who have been allocated
these erven.
THE
APPLICANTS’ ATTEMPTS TO SOLVE THE ERRORS
[30]
In an attempt to remedy the errors, the
applicant appointed Lukhozi, a professional resource team.
Lukhozi attempted to rectify
the incorrect transfers with the
co-operation and the agreement of the beneficiaries affected by the
errors.  They invited
the beneficiaries to two meetings.
The first meeting was held on the 9
th
March 2013.  This meeting was however poorly attended, with just
five of the holders of incorrect title identifiable on the
list of
attendees.  A second meeting which was held on the 14
th
March 2013 was better attended with at least twenty attendees
identifiable from the attendance register as holders of incorrect

title.  The second meeting was addressed by Thobile Gqola, the
ward councillor for the area.  An arrangement was then
made to
collect the necessary documents to effect rectification of transfers
from the affected title holders on the 16
th
March 2013.  However, only seven of the incorrect title deeds
were collected.
[31]
Lukhosi then did house to house visits to
explain the process and collect documents on the 21
st
March 2013 and again on the 26 March 2013.  Their efforts were
met with little further success.  It became apparent to
Lukhozi
that they were unable to secure the co-operation of the affected
respondents and that the rectification of transfers by
agreement
would not succeed.  Lukhozi then returned the title deeds
collected by them to their respective holders in June
2014 and
informed the applicant accordingly.  Since the applicants’
attempt to rectify the registration of transfers
with the
co-operation of the beneficiaries who held incorrect title deeds to
their properties was unsuccessful, Esterhuizen was
then forced to
pursue correction of the errors through other means.
THE
OPTIONS
[32]
In the present matter the applicant seeks
orders for one of three options, or orders based on a combination of
aspects of the three
options, or alternative relief, in its quest to
remedy the problems encountered by the applicant and the affected
respondents.
The options can be summarised as follows:
1.
The first option is an innovative
method of renumbering the erven on the general plan to correspond
with the numbers on the title
deeds. Thus for the benefit of the
First Respondent (in the first group of affected properties) who
occupies erf number [3…..]
and holds a title deed with erf
number [3…..], erf number [3….] on the general plan
shall be changed to erf number
[3…..]. Similarly for the
benefit of the thirty-third respondent (in the second group of
affected properties) who occupies
erf number [3……] and
holds a title deed with erf number [3…..], erf number [3…..]
on the general plan
shall be changed to erf number [3…..]. In
similar vein the numbering of each of the other affected erven shall
proceed.
2.
In the second option the
applicant seeks a court ordered rectification of transfers which in
essence requires the simultaneous co-operation
of all affected
owners.  This will mean that the affected owners will have to
surrender their incorrect title deeds and provide
further
documentation, including identification documents, and sign the
transfer documents. It is envisaged that in the absence
of
co-operation the court is requested to order that the Sheriff of the
Court perform certain functions that would have been completed
by the
uncooperative respondents. In the aforegoing circumstances the court
is required to order the forty-fifth respondent to
waive certain
requirements, for e.g. the production of the incorrect title deeds.
During argument, Mr Bhoopchand, for the applicant,
did not pursue the
orders sought under this option with any vigour given the failure of
the attempts to obtain rectification transfers
by agreement.
3.
The third option is one put forward by the
Registrar of Deeds. The option seeks orders in terms of
section 6
of
the
Deeds Registries Act 47 of 1937
. This method entails a
cancellation of all of the affected title deeds, a reversion of
ownership in the properties to the Applicant
(as previous owner) and
a simultaneous re-transfer of all of the properties to their correct
owners.
[33]
It appears that the applicant has
considered other methods to remedy the problem but has rejected them
due to their impracticality
considering the circumstances that
prevail in this matter. The other methods include an expropriation of
all the affected properties
and re-transfer to the beneficiary
owners.
THE
REPORTS OF THE FORTY-FIFTH AND FORTY-SIXTH RESPONDENTS
[34]
It is common cause that the forty-fifth and
forty-sixth respondents were requested to, and did, provide statutory
reports in which
they provided guidance and recommendations to this
court on the issue to be decided.
[35]
The forty-fifth respondent (The Registrar
of Deeds, Cape Town) was established to deal with, amongst other
functions, the registration
and transfer of immovable property in the
Western Cape region.  The forty-fifth respondent was established
by and acts in
accordance with the provisions of the Deeds Registry
Act 47 of 1937 (“the
Deeds Registries Act&rdquo
;).
[36]
The forty-fifth respondent was in
particular requested to provide guidance and recommendations with
regard to the rectification
of transfers if it recommends this course
of action in the following respects:
1.
Whether the correction of title to the
affected properties should be dealt with by renumbering of the
general plan or by rectification
of transfers;
2.
How the two bonds registered over erf
[3…..] should be dealt with;
3.
The manner wherein the incorrect title deed
to erf [3…..] held by the thirty- first and thirty-second
respondents should
be dealt with.
[37]
The forty-sixth respondent (‘The
Surveyor General, Cape Town’) was established in terms of the
provisions of the Land
Survey Act 8 of 1997 (“the
Land Survey
Act&rdquo
;) to deal with, amongst other functions, the survey of
land, the approval of general plans for land surveyed and for
effecting
amendments to general plans.
[38]
The forty-sixth respondent was requested to
provide guidance and recommendations to this court relating to the
renumbering of the
erven on the general plan in the following
respects:
1.
The feasibility of renumbering the affected
erven to place the affected parties with the correct title deeds to
their properties;
2.
The procedure involved in the renumbering
of the affected erven and any difficulties that may arise in the
renumbering process,
3.
How erf [3…..] should be renumbered,
4.
The consequent adjustments that shall be
required to be effected to the general plan, other survey documents
and the title deeds
relating to the affected properties.
[39]
In a report dated the 19
th
February 2015 the forty-sixth respondent states as follows:
“
1.
The Surveyor General, Cape Town is
listed as the forty-sixth respondent in the above case no. 619/15 in
the matter between The Minister
of Human Settlements, Western Cape
Government and Forty Seven Respondents.
2.
Note is taken of paragraph 1 on pages 3 and 4 of the Notice of
Motion, namely for the court to
order the Surveyor-General Western
Cape, to renumber Erven on general Plan no. 1671/1993 in the Philippi
Allotment Area, Western
Cape according to the table listed, except
for the renumbered to [erf 3…..] instead of [erf 3…..]
listed.
3.
Note is taken of paragraph 2, page 4 of the Notice of Motion, namely
for the court to order the
Surveyor-General Western Cape to make
adjustments and changes to the General Plan no. 1671/1993, Philippi
Allotment Area and any
other survey documents consequent upon the
renumbering of the erven as mentioned.
4.
Note is taken that the Registrar of Deeds, Cape Town is to be ordered
by the court to make any
amendments to the title deeds of any erven
consequent to the renumbering of the erven as mentioned on page 4,
paragraph 3 in the
Notice of Motion.
’
[40]
In his report on renumbering of the erven
on General Plan no. 1671/1993, Philippi  Allotment Area he
states as follows:
‘
1.
Feasibility
The
renumbering of the affected erven by court order in the Surveyor
General’s office may be more feasible than the alternative
as
outlined on page 5 in the Notice of Motion.  For the alternative
the full co-operation of all title holders must be obtained.

The renumbering of the General Plan shall not require the
co-operation of the affected respondents;
2.
Procedure involved in the
renumbering of the affected erven
The
Surveyor General does not have the statutory power or discretion to
renumber the affected erven on the General Plan except by
an order of
the court.
The
provisions of
sections 36
and
37
of the
Land Survey Act allow
in
principle for the alteration, amendments to and correction of the
numbering of erven on a general plan.
Following
the court order a note will be added to sheet 1 of the General Plan
listing the renumbered erven.
The
erf numbers of the affected erven on sheets 3 and 4 of the General
Plan to be deleted and to be amended in this office according
to the
court order.
Caution
must be exercised when the erven are renumbered to provide for the
discrepancies in the areas of the affected erven.
On
sheet 1 of the General Plan, the Area Column must be amended to
correspond to the renumbered erf.  The erf numbers of the

affected erven are to be deleted and be replaced by the renumbered
erf number on sheet 1.  This will result in the renumbered
erven
reflecting the area as presently occupied by the occupiers of the
erf.
3.
Renumbering of Erf 3651
Erf
number [3……] should be renumbered erf [3….].
The erf number [3…..] cannot be allocated to
erf [3…..]
as the Approved General Plan does not provide for the number [3……].
(Remark:
Erf 3……] is an erf on approved General
Plan no. 8006/1991).
4.
Consequent Adjustments to be done in this office
The
applicable noting sheets to be amended to reflect the renumbered
erven as per court order.
The
GIS noting section to update Map guide to reflect the renumbered
erven as per court order.
Date
Capture to amend erf numbers in accordance with the renumbered erven
on General Plan to reflect the correct area.
The
Deeds office to amend the title deeds of the affected erven as per
court order, consequent to the renumbering of the erven on
the
General Plan by this office.
5.
Other aspects arising
The
Deeds office is cautioned to identity the correct owner of an erf
after renumbering especially in the case where a third party’s

right is at stake e.g. a bondholder.
’
[41]
In
a report dated 9 March 2015 the forty-fifth respondent states the
following:
‘
3.
Considering the order sought in the Notice of Motion, I will deal
with the alternatives in the Notice of Motion as well
as a third
option.
Amendment
of the General Plan by the Surveyor General
4.
The relief sought in paragraph 1 of the Notice of Motion deals with
how the Surveyor General
may solve the problem which is the subject
of this application.  Whilst it appears on the face of it to be
the easiest and
the most practical solution given the complex
procedures necessary for an alternative such as rectification
transfers in each case,
this office cannot easily cause such
amendments to be made on the relevant title deeds registered in this
office.
As
we understand the source of these errors is the conveyance of the
wrong properties to the respective transferees and not the
allocation
of wrong numbers to the respective properties.  In other words
this situation is not a surveying error but a conveyancing
error.
5.
A title deed deals with many aspects in respect of the property
transfer it represents.
The property identification, more
commonly referred to as the erf number, is but one of such aspects.
6.
There are further components of a title deed which are unique to that
deed, such as the extent
(size) of the property and the title deed
conditions under which a particular property is being transferred.
7.
From that if follows that should this office agree to an order to
amend the erf number pursuant
to an amendment of the general plan,
such action might cause an incorrect extent (size) and registered
conditional clauses.
8.
A mere amendment of a general plan changing erf numbers on an already
registered title deed
does not take this into consideration.
9.
There is no mechanism in the
Deeds Registries Act 47/1937 to
effect a
change to the erf number, extent as well as conditional clauses in a
single act of registration on a single deed.
Doing that would
in effect change everything in the title deed except the vesting
clause (the clause containing the registered
owner’s
particulars).
10.
Rectification (substitution) of the vesting clauses (names of the
occupants) by way of an endorsement
in the registered  deeds of
each of the affected properties would have been an easy solution to
this problem if it were not
tantamount to a transfer of rights and
this is
ultra vires
the said
Deeds Registries Act.
11.
It
needs also to be pointed out that if the general plan is amended
by the office of the Surveyor General then this may be tantamount,

given the arguments raised above, to a transfer of rights.
12.
Rectification of any mortgage bond registered on a property in
the above circumstances cannot
take place because there is no
mechanism in the
Deeds Registries Act allowing
for this.  The
court’s attention is respectfully drawn to the provisions of
section 31(1)
of the said
Deeds Registries Act which
gives a clear
indication that an amendment to the mortgaged security cannot be
registered.
Rectification
Transfers
13.
Since this matter concerns itself with the situation where multiple
owners have obtained registered
title to properties which do not
correspond with the
de facto
situation, one of the remedies
available would be for each affected registered owner to follow the
route of rectification transfers
supported by the necessary
documentation required for this type of act of registration.
14.
Should the route of rectification transfers be followed, any
registered mortgage bond will have to be
cancelled by agreement and a
fresh mortgage bond registered against the correct title of the
relevant owner.
15.
However, this particular matter deals with multiple rectifications,
and given the circumstances as set
out in copious detail in the
supporting affidavit, following this route would create immense
problems and will delay the achievement
of a solution to this matter
to the detriment of all concerned.
Cancellation
of transfers
16.
Section 6
of the
Deeds Registries Act, 47/1937 provides
a mechanism
by which a registered deed of transfer may be cancelled upon an order
of court.
17.
It is submitted that given the problems associated with the procedure
described in paragraphs 15 –
17 above, that this might be a
less cumbersome route in that such procedure does not require
participation by respondents 1 –
42.
18.
If all the incorrect transfers are cancelled then the situation
reverts back to what it was before the
incorrect transfers were
registered.  See
section 6(2)
of the said
Deeds Registries Act.
19.
If
this option is preferred an order to simultaneously with the
cancellation of the incorrect title deeds in terms of the said
section 6
, registration of transfers to the correct transferees, (as
per the original allocation of properties) providing them with a
title
deed with the correct property particulars, extent and title
deeds conditions, will ensure that they are not prejudiced by this

option.
20.
In respect of certain the present occupiers of properties (those that
are deceased or cannot be located),
the issues raised in this matter
should be dealt with separately.  I might mention that their
title rights should be dealt
with bearing
section 14
of the
Deeds
Registries Act, 47/1937 in
mind.
21.
Furthermore, if this option is ordered by the court, then the office
of the Surveyor General need not
amend the general plan as pleaded in
paragraph 1 of the Notice of Motion.
22.
Section 6
of the
Deeds Registries Act, 47/1937 does
not prohibit the
Registrar of Deeds to cancel a mortgage bond per
se
, but the
question remains how to deal with a mortgage bond, which has been
registered against a title deed which is being cancelled
in terms of
the said section.  In Ex parte Raulstone NO (4) SA 606(N) the
court decided it also has the power to cancel a
bond in terms of
Section 6
of the Act.  The annual conference of Registrars of
Deeds confirmed the situation.  In terms of Registrar’s
Conference
Resolution for 1/2009, in a situation where the title
deed, against which a mortgage bond is registered, is cancelled, the
issues
surrounding the disposal of the bond must be referred to the
court for an order to state the manner in which the bond must be
dealt
with.
Conclusion
23.
From the above in our opinion that there are only two practical
options available to resolve the situation, that of:
23.1
The renumbering of the properties on the relevant general plan by the
office of the Surveyor
General and the consequent amendment of the
relevant title deeds; or
23.2
The cancellation of the existing title deeds as contemplated in
section 6 of the said
Deeds Registries Act, restoring
the
status
quo ante
.
24.
The option mentioned in paragraph 23.1 would require, with respect,
the court to evaluate if this procedure is indeed tantamount
to the
transferring of property rights.
25.
The option mentioned in paragraph 23.2 would be a clinical way of
restoring the situation to what it was before the incorrect

conveyancing took place, yet it creates the obstacle of seeking an
order of court to deal with any mortgage bond which is registered

against an affected title deed.
26.
This office will abide by the order of court.’
[42]
In his further report dated the 10
th
March 2015 the forty-sixth respondent states as follows:
1.
Further to the telephonic discussion
with Advocate Bhoopchand and myself concerning the renumbering of erf
[3….] and referring
to paragraph 2 of the Surveyor-General’s
letter dated 19
th
February 2015, reference Nyanga 495, the following for your attention
please:
2.
Instead of renumbering erf [3……]1 to erf [3…..]
as mentioned in paragraph 2 of the Surveyor-General’s
previous
letter dated 19
th
February 2015, the court is respectfully
asked to order that erf [3…..] be renumbered to erf [2…..]
on General Plan
no. 1671/1993.
3.
The court is also respectfully asked to order the layout by survey of
erf [3…..] Public Place on General Plan no. 1671/1993
into two
portions, being a Public Place and registered erf [3…..] to
deal with the existing overlap
.’
[43]
On
13 April 2015 the forty-fifth respondent prepared a report in which
he states the following:
“
3.
Considering the orders sought in the amended Notice of Motion, I will
deal with the alternatives dealt with
in the Notice of Motion as well
as a third option.  This report, whilst being in essence similar
to my report date 9 March
2015, will also deal with paragraph 3 on
page 5 of the amended Notice of Motion.  (dealing with the
survey of public open
space, erf [3…..] Philippi) and will add
details to clarify my previous report and to address issues raised in
the amended
Notice of Motion which are underlined ease of reference.
A.
Amendment of the General Plan by
the Surveyor General
4.
The relief sought in paragraph 1 of the Notice of Motion deals with
how the Surveyor General may solve the problem
with is the subject of
the application.  Whilst it appears on the face of it to be the
easiest and the most practical solution
given the complex procedures
necessary for an alternative such as rectification transfers in each
separate
case, this office cannot easily cause such amendments to be made on
the relevant title deeds already registered in this office
by
an endorsement pursuant to a change in respect of the erf number, and
where applicable, also the extent (size) of the property
as well, as
the
Deeds Registries Act 37/1947 does
not provide for such a
procedure which leaves an application to Court as the only way to
achieve the prayer described in paragraph
2 on page 3 of the amended
Notice of Motion
.
(emphasis
provided)
5.
The source of these errors is the conveyance of the wrong properties
to the respective transferees and
not the allocation of wrong numbers
to the perspective properties,
although
in practical terms this is what indeed has happened during the
physical allocation process in situ
.
In other words this situation is
tantamount
to not dealing with a surveying
error but a
bona fide unintended
conveyancing error. (
emphasis provided)
6.
The effect of the present situation is that each
of the affected transferees in possession of a title deed
for the
wrong property through a conveyancing error.
7.
A title deed deals with many aspects in respect of the property
transfer it represents.  The property
identification, more
commonly referred to as the erf number, is but one of such aspects.
8.
There are further components of a title deed which are unique to that
deed, such as the extent (size)
of the property and the title deed
conditions under which a particular property is being transferred.
9.
From that it follows that should this office agree to an order to
amend the erf number pursuant to an
amendment of the general plan,
such action might cause a different extent (size) and registered
conditional clauses to affect such
property.
10.
A mere amendment of a general plan changing erf numbers on an already
registered title deed does not take this into
consideration.
11.
There is no mechanism in the
Deeds Registries Act 47/1937 to
effect a
change to the erf number, extent as well as conditional clauses in a
single act of registration on a single deed.
Doing that would
in effect change everything in the title deed except the vesting
clause (the clause containing the registered
owner’s
particulars).
12.
Rectification (substitution) of the vesting clauses (names of the
occupants) by way of an endorsement in the registered
deeds of each
of the affected properties (
and
leaving the erf number and extent intact
)
would have been an easy solution to this problem) if it were not
tantamount to a transfer of rights and this is ultra vires the
said
Deeds Registries Act.&nbsp
; (
See
section 16
of the said Deed Registries Act
).
(emphasis provided)
13.
It needs also to be pointed out that if the general plan is amended
by the office of the Surveyor General then this
is tantamount, given
the arguments raised above, to a transfer of rights and this, with
respect, cannot take place.
However,
the court may find differently, and should this happen, then we will
abide by such finding
.
(emphasis
provided)
14.
Rectification of any mortgage bond registered on a property in the
above circumstances cannot take place because
there is no mechanism
in the
Deeds Registries Act allowing
for this.  The court’s
attention is respectfully drawn to the provisions of
section 3(1)s
of
the said
Deeds Registries Act which
gives a clear indication that an
amendment to the mortgaged security cannot be registered.
15.
Since this matter concerns itself with the situation where multiple
owners have obtained registered title to properties
which do not
correspond with the de facto situation, one of the remedies available
would be for each affected registered owner
to follow the route of
rectification transfers supported by the necessary documentation
required for this type of act of registration.
16.
Should the route of rectification transfers be followed, any
registered mortgage bond will have to be cancelled
by agreement and a
fresh mortgage bond registered against the correct title of the
relevant owner.
17.
However, this particular matter deals with multiple rectifications,
and given the circumstances as set out in copious
detail in the
supporting affidavit to the original Notice of Motion, , following
this route would create immense problems and will
delay the
achievement of a solution to this matter to the detriment of all
concerned.
C.
Cancellation of transfer
18.
Section 6
of the
Deeds Registries Act, 47/1937 provides
a mechanism
by which a registered deed of transfer may be cancelled upon an Order
of Court.  The principle is that “
as
soon as the registrar has attested or executed deeds or signed the
registration endorsement such a registrar cannot go back and
cancel
his or her action even, for example, if property has been transferred
to the wrong person
”
(see
page 1 -203 et seg of “The Consolidated Practice Manuals of the
Deeds Office of South Africa, Juta & Co, ISBN
978-0-7021-7416-2).
In these cases it is submitted that the
properties have indeed been transferred to the wrong persons
.
(emphasis provided)
19.
It is submitted that given the problems associated with the procedure
described in paragraphs 15 – 17 above,
that this
option
might be a less cumbersome route to that of
registering
rectification transfers
in that
such procedure does not require participation by respondents 1 –
43, (
as listed in the amended
Notice of Motion
).
(emphasis provided)
20.
If all the incorrect transfers are cancelled then the situation
reverts back to what it was before the incorrect
transfers were
registered.  See
section 6(2)
of the said
Deeds Registries Act.
21.
If this option is preferred an order to simultaneously with the
cancellation of the incorrect title deeds in terms
of the said
section 6
, registration of transfers to the correct transferees, (as
per the original allocation of properties) providing them with a
title
deed with the correct property particulars, extent and title
deeds, will ensure that they are not prejudiced by this option.
22.
In respect of certain of the present occupiers of properties (those
that are deceased or cannot be located), the
issues raised in this
matter should be dealt with separately.  I might mention that
their title rights should be dealt with
bearing
Section 14
of the
Deeds Registries Act, 47/1937 in
mind.
23.
Furthermore, if this option is ordered, then the office of the
Surveyor General need not amend the general plan
as pleaded in
paragraph 1 of the Notice of Motion.
24.
Section 6
of the
Deeds Registries Act, 47/1937 does
not prohibit the
Registrar of Deeds to cancel a mortgage bond per se, but the question
remains as to how to deal with a mortgage
bond, which has been
registered against a title deed which is being cancelled in terms of
the said section.  In Ex parte Raulstone
NO (4) SA 606 (N) the
court decided it also has the power to cancel a bond in terms of
section 6 of the Act.  The annual conference
of Registrars of
Deeds confirmed the situation.  In terms of Registrar’s
Conference Resolution for 1/2009, in a situation
where the title
deed, against which a mortgage bond is registered, is cancelled, the
issues surrounding the disposal of the bond
must be referred to the
court for an order to state the manner in which the bond must be
dealt with.
D.
In summary: Options A, B and C
25.
From the above it is clear that there are only two practical options
available to resolve the situation, that of:
25.1
Renumbering of the properties on the relevant general plan by the
office of the Surveyor
General and the consequent amendment of the
relevant title deeds; or
25.2
The cancellation of the existing title deeds as contemplated in
section 6 of the
said
Deeds Registries Act, restoring
the status quo
ante.
26.
The option mentioned in paragraph 25.1 would require, with respect,
the court to evaluate if this procedure
is indeed tantamount to the
transferring of property rights.
27.
The option mentioned in paragraph 25.2 would be a clinical way of
restoring the situation to what it was before
the incorrect
conveyancing took place, yet it creates the obstacle of seeking an
Order of Court to deal with any mortgage bond
which is registered
against affected title deed.
D.
Amendment of General Plan 1671/1993
28.
This office has no objection to implementing prayer number 3 on page
5 of the amended Notice of Motion.
Procedures exist for this
office to note changes effected by the Surveyor General on general
plans on the relevant title deed which
in this case would be the deed
under which the property on which the general plan was laid out, is
held.
E.
Conclusion
29.
This office will abide by an order of any of the alternatives
mentioned in paragraph 25 supra.
Thereafter
the necessary administration acts as mentioned in paragraph 28 supra
can be effected.
”
(emphasis
provided)
[44]
In his final report dated 10 June 2015 the
forty-fifth respondent states that:
“
1.
The Registrar of Deeds has been briefed
by Counsel for the Applicant on Monday 8
th
June 2015 on aspects of the two previous reports requiring
clarification by the court hearing this matter.  The reports
submitted
by the Registrar were dated 9
th
March 2015 and 13 April 2015.
2.
The Registrar of Deeds has taken the circumstances underpinning this
matter and recommends the renumbering process to remedy
the errors
identified in this application.  To this end it is recommended
that it is not necessary for the court to dwell
on the
section 6
process alluded to earlier.
3.
The Registrar of Deeds has been advised that no amendments to the erf
numbers will be required on the title deeds of the affected

properties and that the only amendments sought from the Deeds office
are to the erf size (extent) on the ten affected properties.

The applicant must set out clearly the ten properties and the amended
extent of each.
4.
The amendments to the title deeds as to the change in the erf size
will be recorded upon receipt of confirmation by the Surveyor
General
of having amended his records in accordance with the court order.
He will do so upon receiving the court order to
amend his records.
It is also advised that the court also order the deeds office to note
caveats in its records to record
the change in the extents of the ten
properties and to further endorse the title deeds of the affected
properties when the property
is next dealt with in the deeds office.
5.
No specific orders are required to be made with regard to the twelve
owners who have died.
6.
With regard to title deed [3…..] and the two bonds registered
over that property: Provided that there is no difference
in the erf
size between erf [3…..] and erf [3….] there will be in
our opinion no change in the security relating
to the mortgage bond
registered over property [3…..] after the renumbering
process.  It is submitted that the court
need not make any
specific order with regard to this property
.”
[45]
It is necessary to highlight the following
points as they appear from the reports of the forty-fifth and
forty-sixth respondents:
45.1
The forty sixth respondent indicates that the provisions of
ss 36
and
37
of the
Land Survey Act in
principle allow for the alteration,
amendments to and correction of the numbering of erven (and other
data) on a general plan.
45.2
The forty-sixth respondent does however not have the statutory powers
or the discretion to renumber the affected
erven on the general plan
except by an order of court. The forty-sixth respondent has outlined
the procedure to be followed in
the renumbering exercise including
how the data captured on the first sheet of the general plan needs be
changed.
45.3
There are ten erven that have different sizes. The forty-sixth
respondent has cautioned that the renumbering
procedure should
provide for the discrepancies in the areas of the affected erven.
45.4
The forty-sixth respondent has recommended that in the first group of
affected erven the last erf in the
sequence, namely erf number
[3…..], shall be renumbered to erf number [3….]. If
this is done, the number 3768 then
becomes available for use in
renumbering the first erf in this affected sequence. The forty-sixth
respondent has recommended that
erf [3…..] is renumbered to
erf [3…..]. The current erf [3…..] shall be renumbered
to erf number [3….].
45.5
In the second group of affected erven the option of using the first
number in the sequence of affected properties
to renumber the last
erf that will be left without a number is not available. The last erf
in the affected sequence is the erf
with number [3…..]. As the
owner/beneficiary of this erf does not have a title deed to his
property it is recommended that
erf [3…..] shall be the number
assigned to the erf that is currently reflected as erf [3…..]
on the general plan.
Erf [3…..] does not form part of
this application and its title is correct. If the exercise in
renumbering in the first
group of affected properties is followed
then the last erf in this group would have been renumbered erf number
[3…..].
45.6
In regard to the thirty-first and thirty-second respondents who
jointly hold the title deed to erf number [3…..]
and occupy a
portion of the public open space with erf number [3……],
it is recommended that the erf number [3…..]
is better
utilised. The forty-sixth respondent has proposed that the erf with
number [3…..] should be renumbered to erf
[2….], a
number that does not have a duplicate erf with the same number in the
township.
45.7
The forty-sixth respondent recommends that the forty-fourth
respondent is ordered by the Court to subdivide,
by survey, the
public open space, i.e. erf number [3…..], into two erven
namely erf [3….] and erf [3…..].
This would follow that
the size of this erf would be 165 square metres which would
correspond with the size reflected on the title
deed held jointly by
the thirty-first and thirty-second respondents. It is necessary to
note that the erf size of the new erf [3…..]
on the public
open space may require determination by the forty-fourth respondent
to accord with the size of the formal buildings
erected on this erf.
The erf size of the new erf [3…..] should thus be left open
for determination between the Applicant
and the forty-fourth
Respondent.
45.8
The forty-sixth respondent has noted that the deeds office will be
required to amend the title deeds
of the affected erven consequent to
the issue of the court order. It bears noting that the only
amendments consequent to the renumbering
exercise that need be
effected on the title deeds in the deeds office relate to the changed
sizes of ten of the affected erven.
45.9
The forty-fifth respondent produced two reports, the content of which
are essentially similar. In the first
report the forty-fifth
respondent acknowledges that the renumbering method may be the
easiest and most practical solution for rectifying
the errors given
the complex procedures that are necessary for an alternative such as
rectification of transfers in each case.
The forty-fifth respondent
qualifies the aforegoing by stating that the deeds office cannot
easily cause such amendments to be
made on the relevant title deeds
already registered in the deeds office.
45.10
The forty-fifth respondent characterises the error as a conveyancing
error and not an error involving the allocation of wrong
numbers to
the respective properties, i.e. it is not a surveying error. Mr
Bhoopchand contended that the forty-fifth respondent
incorrectly
assumes that the renumbering process will require the deeds office to
amend the erf number on the title deeds.
45.11
The forty-fifth respondent also expressed caution against any
amendment to the title deeds that may amount to a transfer of
rights
which would be “ultra vires” the
Deeds Registries Act.
The
forty-fifth respondent initially seemed to have the view that any
amendment to the general plan would also be tantamount to a transfer

of rights. Mr Bhoopchand disagreed with this view and pointed out
that the forty-fifth respondent was also under the mistaken
impression that a rectification of the mortgage bond registered over
one of the erven referred to above was required considering
that in
terms of
section 3(1)
(s) of the
Deeds Registries Act an
amendment to
mortgaged security cannot be registered.
45.12
The forty-fifth respondent however concedes that if a rectification
of transfers is pursued, it would create immense problems
as there
are multiple rectifications involved in this matter. He concedes that
in light of the circumstances detailed in applicant’s

supplementary affidavit (which inter alia emphasises the peculiar
circumstances of this matter, including lack of the poor co-operation

of the affected Respondents), the process of rectification of
transfers would delay the achievement of a solution to this

matter which will be to the detriment of all concerned.
45.13The
forty-fifth respondent is of the view that when regard is had to
section 6
of the
Deeds Registries Act that
it is clear that a
mechanism is available by which a registered deed of transfer may be
cancelled upon an order of court and that
this process does not
require the participation of the affected respondents and it may be a
less cumbersome route to follow.
45.14Accordingly
the forty-fifth respondent is of the view that if all the incorrect
transfers are cancelled then the situation
reverts to what it was
before the incorrect transfers were registered. An order to
simultaneously register transfers to the correct
transferees must
then be made. The position of the deceased owners should be dealt
with separately. The forty-fifth respondent
does however not indicate
how the position of deceased owners should be dealt with except to
say that the provisions of
section 14
of the
Deeds Registries Act
should
be heeded.
45.15In
dealing with the bonds registered on an erven in the first group of
affected properties the forty-fifth respondent recommends
that the
two bonds are to be cancelled. In this regard reliance is placed on
Ex Parte Raulstone, NO
1959 (4) SA 606
(NPD) in support of the
contention that the Court has inherent power to cancel a bond in
terms of
section 6
of the
Deeds Registries Act. The
issues
surrounding the disposal of the bonds must then be determined by the
Court. The forty-fifth respondent does however not
provide any
guidance on how the mortgage bond should be disposed of.
[46]
In the supplementary affidavit deposed to
by Esterhuizen the applicant levels a series of criticisms at the
first report of the
forty-fifth respondent. These included the
following:
46.1
The forty-fifth respondent had misconstrued the extent of the
amendments required to be effected by the deeds office
in the
renumbering option. According to applicant all that was required of
the deeds office was for it to amend the size of ten
of the erven on
their respective title deeds. These amendments would follow the
renumbering process.
46.2
The renumbering option did not require the deeds office to change the
erf numbers on any of the title deeds as the renumbering
process
would result in the title deeds held by the owners now having the
correct erf numbers on them.
46.3
The characterisation of the error as a conveyancing error based on
the reason provided by the non-governmental organisation
as to how
the errors could have happened did not take into account that the
reason was speculative, and that in the absence of
accurate
information as to how the errors occurred, it would be incorrect to
direct the outcome of this matter on speculation.
46.4
The forty-fifth respondent had raised the issue of differing title
deed conditions from property to property without
indicating whether
there were differing conditions attached to each of the affected
title deeds.
46.5
The forty-fifth respondent characterised the renumbering option as a
transfer of rights without explaining how this conclusion
was arrived
at.
46.6
The forty-fifth respondent recommended that the deeds of the
mortgaged property should be cancelled and left it to the
court to
determine how the cancelled bonds should be dealt with. No guidance
was given in this regard.
46.7
The position of the thirty-first and thirty-second respondent would
not be addressed in the
section 6
procedure.
46.8
The procedure recommended by the forty-fifth respondent would involve
a protracted clerical process which would require
some form of
co-operation of the affected respondents which co-operation was
already illustrated as being severely lacking.
[47]
It is important to note that in his final
report the forty-fifth respondent, in response to the criticisms
levelled against the
first report, acknowledges that he would abide
by the court’s decision and that the deeds office had no
objection to implementing
the consequential actions required by it if
the court ordered the renumbering option.
[48]
The forty-fifth respondent withdrew his
misgivings against the renumbering option and supports it as the
option to solve the errors.
In his view, amendments to the erf sizes
would be addressed with a caveat for further action if a future
transfer arose or with
an endorsement of the title deed in its
possession.  In this regard the deeds office would be required
to note a caveat against
a property as a reminder to itself and
interested parties that some other action is required when next the
property is dealt with
in any way. For example, in the event that a
property is re-surveyed the property details may change as a result.
In this
event the forty-fifth respondent will then note a caveat
against the property so that when next the property is dealt with,
the
amended details are noted in the titled deed and deeds office
database.  According to the forty-fifth respondent the two
mortgaged
bonds registered over erf [3…..] could remain
undisturbed and the renumbering process would not result in a change
in security
provided the erf sizes of erven [3…..] and [3…..]
were the same (i.e. 160 m
2
).
No court orders were necessary to deal with the mortgaged property.
The position of the twelve respondents who had died did not
require
any special orders to be made on the title deeds.
[49]
The
change in the stance of the forty-fifth respondent is welcomed as it
takes into account the peculiar circumstances confronting
the
affected respondents and the applicant and illustrates an
appreciation for the need for a composite solution to the errors
and
the problems identified in this application.
THE
LEGAL POSITION
[50]
It is
necessary to consider the law and the provisions of the applicable
legislation to arrive at a solution to the problems applicant
and the
affected respondents are confronted with.  The transfer of
ownership and registration of land is dealt with in terms
of the
provisions of the
Deeds Registries Act 47 of 1937
.  In some
instances the establishment of certain townships like the one
referred to in the present matter came about in terms
of the Less
Formal Township Establishment Act.  The survey of townships and
the division of tracts of land into numbered erven
is determined by
the provisions of the
Land Survey Act 8 of 1997
.  Considering
the issue to be decided, I have decided to limit reference to
particular sections of the
Deeds Registries Act and
the
Land Survey
Act.
[51
]
Section
3(1)(v)
of the
Deeds Registries Act provides
that the Registrar
shall, subject to the provisions of this Act-
‘
make,
in connection with the registration of any deed or other document, or
in compliance with the requirements of any law, such
endorsements on
any registered deed or other document as may be necessary to give
effect to such registration or to the objects
of such law
.’
[52]
Section
4, which deals with the powers of the registrar of deeds, provides
that
‘
(1) Each registrar
shall have power –
(a) to require
the production of proof upon affidavit or otherwise of any fact
necessary to be established in connection with any
matter or thing
bought to be performed or effected in his registry;
(b) whenever it
is in his opinion necessary or desirable to rectify in any deed or
other document, registered or filed in his registry,
an error in the
name or the description of any person or property mentioned therein,
or in the conditions affecting any such property
to rectify the
error: Provided that -
(i)
every person appearing from the deed or other document to be
interested  in the rectification has consented
thereto in
writing;
(ii) if any such
person refuse to consent thereto the rectification may
be
made on the authority of an order of Court;
(iii)
if the error is common to two or more deeds or other documents,
including any register in his or her registry, the error shall
be
rectified in all those deeds or other documents, unless the
registrar, on good cause shown, directs otherwise;
(iv)no
such rectification shall be made if it would have the effect of
transferring any right;
(v)
……….”
(c)
to issue, under conditions prescribed by regulation, certified copies
of deeds or other documents registered or filed in his
registry;
(d)
if in his opinion any deed or other document submitted to him has
become illegible or unserviceable, to require that a certified
copy
thereof be obtained to take its place.
(2)
……….”
[53]
Section
6
of the
Deeds Registries Act provides
that:
“
(1)
Save as is otherwise provided in this Act or in any other law no
registered
deed of grant,
deed of transfer, certificate of title or other deed conferring or
conveying title to land, or any real right in
land other than a
mortgage bond, and no cession of any registered bond not made as
security, shall be cancelled by a registrar
except upon an order of
Court.
(2)
Upon the cancellation of any deed conferring or conveying title to
land or any real right
in land other than a mortgage bond as provided
for in subsection (1), the deed under which the land or such real
right in land
was held immediately prior to the registration of the
deed which is cancelled, shall be revived to the extent of such
cancellation,
and the registrar shall cancel the relevant endorsement
thereon evidencing the registration of the cancelled deed.”
[54]
Section 14
of
the
Deeds Registries Act provides
that “
(1)
Save as otherwise provided in this Act or in any other law or as
directed by the court –
(a)
transfers
of land and cessions of real rights therein shall follow the sequence
of the successive transactions in pursuance of which
they are made,
and if made in pursuance of testamentary disposition or intestate
succession they shall follow the sequence in which
the right to
ownership or other real right in the land accrued to the persons
successively becoming vested with such right;
(b)
it shall not be lawful to depart from any such sequence in recording
in any deeds registry any change in the ownership in such
land or of
such real right: Provided that -
(i)
if the property has passed in terms of a will or through intestate
succession from a deceased person to his descendants, and
one or
other of these descendants has died a minor and intestate and no
executor has been appointed in his estate, transfer or
cession of the
property which has vested in that descendant may be passed by the
executor in the estate of the deceased person
direct to the heirs ab
intestato of the descendant;
(ii)
if the registrar is satisfied that the value of the immovable
property which has vested in any heir or legatee in terms of
a will
or through intestate succession would be equalled or exceeded by the
costs involved in transferring or ceding it to the
heir or legatee,
and the heir or legatee has sold the property, transfer or cession
thereof may, with the consent in writing of
the heir or legatee, be
passed by the executor in the estate of the deceased person direct to
the purchaser;
(iii)
if in the administration of the estate of a deceased person
(including a fiduciary) any redistribution of the whole or any

portion of the assets in such estate takes place among the heirs and
legatees (including ascertained fideicommissary heirs and
legatees)
of the deceased, or between such heirs and legatees and the surviving
spouse, the executor or trustee of such estate
may transfer the land
or cede the real rights therein direct to the persons entitled
thereto in terms of such redistribution;
(iv)
in a redistribution mentioned in proviso (iii) it shall be lawful to
introduce movable property not forming part of the
estate for the
purpose of equalizing the division;
(v)
the provisions of proviso (iii) shall apply mutatis mutandis with
reference to a redistribution of assets of the joint estate
of
spouses who were married in community of property and have been
divorced or judicially separated, and with reference to a
redistribution
of assets of a partnership on dissolution of the
partnership;
(vi)
if a fiduciary interest in land or in a real right terminates before
transfer of the land or cession of the real right has
been registered
in favour of the fiduciary, it shall be competent to transfer the
land or cede the real right direct to the fideicommissary;
(vii)
if the right of any person to claim transfer of such land or cession
of such real right from any other person has been vested
in any third
person in terms of any judgment or order of any court (including a
magistrate’s court), or in terms of a sale
in execution held
pursuant to any such judgment or order, transfer of such land or
cession of such real right may be passed direct
to such third person
by the person against whom such right was exercisable.
(2)
In any transfer or cession in terms of any proviso to subsection
(1)(b), there shall be paid the transfer duty which would have
been
payable had the property concerned been transferred or ceded to each
person successively becoming entitled thereto.”
[55]
Section
36
of the
Land Survey Act
(
supra
)
provides that “
The
Surveyor-General may correct any error in the numerical data, figure
or wording of a diagram registered in a deeds registry:
Provided that
if the correction affects the extent or designation of the land
represented by the diagram, the Surveyor-General
shall notify the
Registrar of the correction, and that Registrar shall thereupon amend
the relevant title deed and registers in
his or her deeds registry in
accordance with the corrected diagram and before effecting any
further registration of that land or
any portion thereof or share
therein shall likewise amend the relevant duplicate title deed
belonging to the owner of that land.”
[56]
Section
37(1)(a)
of the
Land Survey Act
(
supra
)
provides that “
Any general plan
which is filed in a Surveyor-General's office or is registered in a
deeds registry may be altered or amended by
the Surveyor-General for
the purposes of rectifying errors in the numerical data, figure or
wording: Provided that if the correction
affects the extent or
designation of erven, the Surveyor-General and the Registrar shall
act in the prescribed manner.
(b)
The Surveyor-General may, in order to make a correction contemplated
in paragraph (a), require that a land surveyor submit in
the
prescribed manner a correction sheet of the whole or part of the
general plan for examination and approval.
(2)
Any general plan referred to in subsection (1) which represents
the subdivision of land in accordance with or under
any other law,
or which represents a township established prior to the existence
of any laws relating to the establishment
of townships, may, with
the consent of the Premier concerned, or by an order of the court,
and subject to such conditions
as the Premier or the court may
deem necessary, be altered, amended or partially or totally
cancelled by the Surveyor-General:
Provided that where the
alteration, amendment or partial or total cancellation affects a
public place, the Surveyor-General,
prior to such alteration,
amendment or partial or total cancellation, shall be advised by
the Premier that the provisions
of the laws relating to the
permanent closing of any public place or part thereof have been
complied with.
(3)
The Premier may, in respect of any alteration, amendment or
partial or total cancellation of a general plan, contemplated
in
subsection (2), delegate his or her powers to an officer in the
service of the provincial administration or to a local
authority,
and the local authority may, with the concurrence of the Premier,
further delegate the delegated powers to an
officer in the service
of that local authority.
(4)
When a general plan is altered, amended or partially or totally
cancelled in terms of this section the Surveyor-General
shall
inform the Registrar, who shall make the necessary alterations,
amendments or endorsements to or on the relevant title
deeds and
registers in his or her deeds registry.”
[57]
In
Weinerlein
v Goch Buildings Limited
1925 AD 282
at
293 the court held that “
The Roman
Law did not know of the transfer of property by registration:
That is an innovation of the Roman Dutch Law.
The object of our
law of registration of transfer is that a person shall hold his title
in accordance with what is found upon the
register … The
policy of our registration laws with regard to fixed property
requires the true contract under which land
is held to be reflected
on the register.
”
[58]
It is commonly accepted that the
identification of land ownership in South Africa is founded on two
bases, namely, a cadastral system
of surveying that identifies the
boundaries of the properties and collates data relating to those
properties and a registration
system of title deeds to the
properties.  The information contained in the title deeds must
correspond with the cadastral
data (i.e. a depiction of the land and
the associated data on an approved surveyed and/or general plan).
[59]
It is now accepted law that the abstract
theory of transfer applies to immovable property. See
Legator
McKenna Inc v Shea and Others
2010(1)
SA 35 (SCA) para 21.  According to Legator Mckenna (
supra
),
the requirements for the passing of ownership in the case of
immovable property are twofold, namely: delivery, which is effected

by registration in the deeds office, coupled with a so-called real
agreement (“
saaklike
ooreenkoms
”).  The essential
elements of the real agreement are an intention on the part of the
transferor to transfer ownership
and the intention of the transferee
to become the owner of the property.  See Legator McKenna
(
supra
) at
para 22.
[60]
Brand
JA held in Legator McKenna (
supra
)
at para 22 that, ‘
Although the
abstract theory does not require a valid underlying contract, e.g.
sale, ownership will not pass – despite
registration
of transfer – if there is a defect in the real agreement.
’
The main purpose of registration of ownership is to comply with the
publication requirement. In an abstract system
there is no need for a
formally valid underlying transaction provided that the parties are
ad idem
regarding the passing of ownership.  See
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others
2011(2) SA 508 (SCA) at paragraph [12
[61]
In
the present matter the ownership of the affected properties or at
least the initial allocation and ownership of the affected
properties
is not disputed by the 43 affected respondents. On the authority of
Legator McKenna (
supra
)
and the abstract theory I must therefore accept that there is no
defect in the ‘
real agreement
’
between the applicant and the affected respondents with regard to the
ownership of the land occupied by the affected respondents.
[62]
As
the affected respondents are owners of the erven they occupy it must
therefore follow that they are entitled to hold title deeds
to such
properties and the deeds office records must therefore properly
reflect the true ownership of their properties.
[63]
Our
SCA has held that the record of title deeds in the deeds office needs
to be accurate.  There is no guarantee of title and
the record
is subject to correction when the need arises.  See
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others
(
supra
)
at
paragraph 13.
DISCUSSION
[64]
On
a consideration of the papers before me it is clear that it was the
intention of the WCG, as transferor, to transfer ownership
of land to
the transferees who are the affected respondents in this matter.
It is further clear that the common intention
between the WCG and the
affected respondents was to pass ownership of property.  The
written expression of their intention
went awry.  The exact
manner wherein the error occurred is not easily discernible from the
information that is available.
There is however no defect in the real
agreement between the WCG and the affected respondents with regard to
the passing of ownership
of the erven occupied by the respondents.
The error is in the recordal of that agreement.  The object of
the correction
of the errors in this application is to enable the
affected beneficiaries and the WCG to obtain the correct title deeds
to their
respective erven as the deeds register should correctly
reflect the true ownership of the respective properties.
[65]
It is clear that the applicant had hoped to
achieve a situation where the affected parties would co-operate and
agree to a rectification
of transfers to correct the errors.
The nature of the errors in both groups of properties however
required the holders of
the title deeds to surrender their incorrect
title deeds, to provide the other necessary documents and to provide
written consent
to the rectification of transfers, and this had to be
done simultaneously as the rectification of transfers in each of the
two
affected groups could only be completed together as a batch.
It is clear that the full co-operation of all title holders concerned

could not be obtained and rectification of transfers by agreement was
not feasible in the circumstances.
[66]
In the present matter the court is required
to find a legal solution to the errors identified hereinbefore, with
the ultimate aim
of creating a situation where the respective owners
of the erven are left with their correct title deeds.
[67]
It
is so that Section 4 of the Deeds Registry Act (
supra
)
provides for the rectification of errors that are discovered in title
deeds. It permits rectification of an error in the name
or the
description of any person or property or the conditions attaching to
a title deed, provided that there is no transfer of
rights during the
rectification process.
[68]
Section
6
of the
Deeds Registries Act
(
supra
)
on the other hand prohibits a Registrar of Deeds from cancelling a
registered title deed unless the cancellation is ordered by
a Court
or as may otherwise be provided in the
Deeds Registries Act or
in any
other law. Laws that contained provisions for the cancellation of
registered title deeds included some of the laws under
apartheid,
like the Black Administration Act 38 of 1927. The effect of the
cancellation under this section is that the title then
reverts to the
previous owner. See section 6 (2).  The SCA has held that
section 6 is not an empowering provision.
See
Kuzwayo
v Representative of the Executor in the Estate of the late Masilela
[2011] 2 All SA 599
(SCA) at paragraph 25.
[69]
The
Courts have interpreted the provisions of section 6 to mean that
courts are empowered to cancel the registration of a bond.
It
does however appear that section 6 empowers a Registrar of Deeds to
cancel the registration of certain mortgage bonds.
See Ex parte
Raulstone NO (
supra
).
[70]
Section
6
of the
Deeds Registries Act finds
application where deeds are
lodged in batches for, amongst other reasons, linking of deeds for
registration as well as for registration
of bonds simultaneously. In
the absence of any indication the Registrar of Deeds is entitled to
register them. In this instance
section 6
prohibits any subsequent
cancellation of registration by the Registrar of Deeds.  See
Jones, Conveyancing in South Africa,
4
th
ed, H S Nel p. 18 – 19.
[71]
The
provisions of
section 6
thus relate to deeds office registration
errors. In recommending a
section 6
procedure, it was more likely
that the forty-fifth respondent was recommending a procedure akin to
a
section 6
procedure where the Court would order a cancellation of
all the last registrations on the title deeds and the bonds
registered
over one property. The effect of the court order would be
that title would then revert to the applicant who was the previous
owner.
The Court would then order the registration of transfer to the
correct owners.
[72]
In
my view there may be some merit in the criticisms levelled by the
applicant against adopting the procedure provided for in
section 6
considering that there are additional factors that weigh against
pursuing this option. The procedure would entail a double
conveyancing
process with the attendant costs and it further does not
deal with the mortgaged property, the cases of the owners who are
deceased
and the case of the respondents who occupy a portion of the
public open space.
[73]
Section
3(1)
(v) of the
Deeds Registries Act empowers
the forty-fifth
respondent, in connection with the registration of any deed or other
document, or in compliance with the requirements
of any law, to make
such endorsements on any registered deed or other document as may be
necessary to give effect to such registration
or to the objects of
such law.
[74]
According
to our law, once rectification of a title deed is granted, it
operates from the outset. In
Milner
Street Properties (Pty) Ltd v Eckstein Properties (Pty) Ltd
2001 (4) SA 1315
(SCA) at paragraph 33 the court held that,
“
Rectification does not alter the
terms of the agreement; it perfects the written memorial so as to
accord with what the parties
actually had in mind… Having been
rectified with retroactive effect the agreement is deemed to have so
provided at the time
of its conclusion
”.
In
Intercontinental Exports (Pty) Ltd v
Fowles
1999 (2) SA 1045
(SCA) the SCA
held at para. 11 that [Rectification] ‘
enables
effect to be given to the parties actual agreement
.’
[75]
In
my view the means available to correct or rectify transfers in terms
of the
Deeds Registries Act are
in the main geared to correct errors
on single title deeds. The errors on multiple title deeds relating to
properties that lie
adjacent to each other require simultaneous
correction and the co-operation of all the affected respondents,
making correction
utilising this method virtually impossible.
[76]
Aspects
of the new land law and the on-going discussion of land reform
accords enhanced standing to the circumstances of possession
and make
significant inroads into the security of what appear ex facie the
deeds office records.  I am satisfied that this
court has
inherent jurisdiction in matters pertaining to land registration and
matters ancillary thereto.  See Ex parte Millsite
Investment Co
(Pty) Ltd
1965 (2) SA 582
(T).  There is thus room for this
court to exercise its inherent jurisdiction in property matters such
as the present, beyond
the constraints of the provisions of the
Deeds
Registries Act or
any practice that has been followed by the deeds
office, in circumstances that require a departure.  This is of
course not
to say that wholesale circumventions or departures from
the provisions of the Deed Registries Act should be allowed.
The
peculiar facts of this case however require that this court give
careful consideration to what remedy is best suited to the problems

that the parties are confronted with in this matter.
[77]
In
the first group of twenty three properties and the second group of
nine plus one properties the owners of the properties have
in their
possession title deeds that correctly reflect their names but not the
erf numbers they occupy. None of the respondents
or any third parties
have come forward to dispute the ownership of any of the affected
properties. As I have already stated, I
am satisfied that valid real
agreements existed between the owners and the seller at the time of
the sale regardless of how each
owner came to be in possession of
title deeds with incorrect erf numbers.
[78]
I
am further satisfied that the owners, whether singularly or jointly,
do hold title deeds which were secured through a conveyancing
and
registration process involving a conveyancer and the deeds office. I
agree with Mr Bhoopchand that it would be an exercise
in futility to
try and construct from the dearth of information, the accuracy of
which is blurred with the passage of time, how
the errors occurred.
The case involves a number of properties and requires a simultaneous
correction. The original documents relating
to the development of the
township are lost or unavailable. The manner wherein the errors
occurred is subject to speculation. A
considerable period of time has
passed from the initial allocation of properties to the time that the
errors were discovered to
the time that this application was made.
There has been minimal co-operation of the affected owners in
circumstances where universal
co-operation is required if
rectification of the errors is to be obtained by agreement. Some of
the property owners have died.
The affected properties are situated
next to each other in two groups and this lends itself to a
renumbering process. The conditions
of title are the same. The sizes
of the erven do not pose a difficulty and are amenable to amendment
by the forty-fifth and the
forty sixth-respondents. The renumbering
option is supported by both the forty-fifth and forty-sixth
respondents. There is no objection
to this process from the
Respondents.  The process is intended to retain ownership of the
affected properties in the names
of the original beneficiaries as and
per the initial allocation and sale of the properties. The rights of
third parties are also
protected in the process.  In my view, a
common sense and practical approach must be adopted in deciding what
the most appropriate
relief should be considering the circumstances
of this case.
[79]
The
options presented to this court include renumbering the general plan,
rectification of transfers by court order, a process akin
to
section
6
of the
Deeds Registries Act to
correct the initial transfers and a
combination of the elements of the aforegoing three options.
[80]
In
my view this court is required to grant relief which will have the
effect that the affected respondents are matched with the
correct
title deeds to their respective properties. In effect a correction
procedure is called for rather than a re-enactment of
a transfer of
ownership fraught with the difficulties referred to hereinbefore.
After careful consideration of all the options
presented to the
court, I am of the view that the renumbering option as recommended by
the forty-sixth respondent is the most appropriate
mechanism of
achieving the desired outcome.
[81]
I
am fortified by my finding that the correction sought in this
application will not constitute any delivery, symbolic or otherwise,

of the properties, nor will it change the rights and obligations of
the parties. It will simply correct the erroneous reflection
of those
rights.  See
Bester NO and Others v
Schmidt Bou Ontwikkelings
CC
2013 (1)
SA 125
(SCA) at paragraph 11.  In addition, I am satisfied that
the amendments to a general plan are in principle permissible and
are
expressly permitted in terms of the provisions of the
Land Survey Act
(
supra
).
[82]
In
the first group of properties erf 3746 and erf 3769 are the erven
adjoining the affected properties on the extreme ends of the

sequence. They are public spaces.  I am satisfied that the title
deeds are correct for the purposes of this application. The
owner is
reflected as the applicant but in law it is the City of Cape Town
that is deemed to be the owner of public spaces in this
township in
terms of the Less Formal Township Development Act. No order is sought
to change the position as it appears on the title
deeds.  In
accordance with the recommendations of the forty-sixth respondent,
erf 3747 the first erf, will be renumbered to
erf 3768, the last of
the affected erven.
[83]
In
the second group of affected properties, the first erf in the
sequence must be subdivided to cater for the respondents that occupy

a portion of the public space. The erf adjoining the last of the
affected erven in the sequence is erf 2652. Erf 3652 is a tiny
piece
of land on which a mast with an overhead light is erected. This erf
is considered to be correctly numbered and is not part
of this
application.
[84]
The
position of the thirty-first and thirty-second respondents who occupy
a portion of the public open space must be dealt with
by this court
by the making of orders for the forty-fourth respondent to act upon.
[85]
In
accordance with the recommendations of the forty-sixth respondent,
the mortgage bonds registered over an erf will be rendered
correct by
the renumbering option. The forty-sixth respondent holds the view
that no orders beyond the orders to renumber need
be made with regard
to this erf as the renumbering option renders the position correct as
was intended by the owner and the mortgagor.
There is
accordingly   no prejudice to the forty-seventh respondent.
[86]
Should
the renumbering option by the forty-sixth respondent be followed by
this court the procedure would include the renumbering
of the
affected erven and the consequent adjustments that are to be made to
the data reflected on the general plan with regard
to each of the
affected properties. The differences in erf sizes are to be recorded
against the erven where the erf sizes differ.
All that is required of
the deeds office is the amendment of the title deeds where the erf
sizes will change.
[87]
I
am satisfied that the renumbering option still provides an accurate
and correct reflection of the sequence of the events and the
history
of the transfers. They will be corrected and would be capable of
being ascertained and researched if required.
[88]
Most
importantly, the title deeds held by the affected respondents and the
title deeds in the Deeds office relating to the affected
erven would
correspond to the identification of the erven on the general plan.
The title deeds can once again be regarded as legal
instruments
evincing ownership and the affected erven can be legally disposed of,
encumbered and/or devolve to the heirs where
the original owners have
passed on.
CONCLUSION
[89]
I
must stress that the decision to adopt the renumbering option in the
present matter should not be seen as setting a precedent
for the
correction of errors occurring in the registration process and the
production of title deeds. There are recognised methods
of correcting
errors in the transfer process as provided in the Deeds Registry Act
and other applicable legislation.
[90]
I am accordingly satisfied that the
peculiar circumstances of this matter is such that the renumbering
option as recommended by
the forty-sixth respondent and endorsed by
the forty-fifth respondent is the legal solution for the applicant
and the affected
respondents.
[91]
In the result I make the following order:
1.
(a) That the Surveyor General, Cape Town,
is ordered to renumber erven on general plan 1671/1993 in the
Philippi Allotment area,
Western Cape Province and amend the erf
sizes as identified according to the following table:
Erf number on
general plan:
Renumbered to:
Renumbered erven
requiring amendment of erf size in square metres
3…..
3……
160
3……
3…….
3…….
3………
3…….
3……….
3………
3………..
3………
3……….
3………..
3…………
3……..
3…………
3…………
3………..
3……….
3…………
3……
3…………
3……….
3………….
3…………
3…………
3……..
3……….
3………
3………….
3…………
3………
3……
3…………
3…………
3…………
3…………
3………..
3…………
3………….
3…………
3…………
3………..
3………….
180
3……….
3……….
165
3………….
3…………..
3…………..
3…………..
150
3…………..
3………….
156
3…………..
3………..
159
3……..
3………….
185
3…………
3………….
185
3………..
3………….
159
3………….
2…………
206
2.
That the Surveyor General, Cape Town, is
ordered to make any adjustments and changes to the general plan
1671/1993, Philippi Allotment
Area, and any other survey documents
consequent upon the renumbering of the erven. For reference purposes
the report of the Surveyor
General with two notes thereto and sheets
1, 3 and 4 of general plan 1671/1993 of subdivisions of erf 3378
Philippi in the Philippi
Allotment areas are attached to this order.
3.
That the City of Cape Town is ordered to
subdivide by survey, public open space erf 3642 on general plan
1671/1993 into two erven
namely erf 3642 and erf 3643.
4.
That the Registrar of Deeds, Cape Town, is
ordered to make any amendments to the title deeds of any erven
consequent to the renumbering
of the erven including the noting of
caveats in its records relating to the properties where the
renumbering on the general plan
has resulted in a change in the size
(extent) of the erven and to further endorse the title deeds when the
property is next dealt
with in the deeds office. The third column in
the table under order 1 above lists the properties requiring
amendments to the erf
size on the title deeds.
5.
It is declared that once the orders in 1, 2
and 4 are complied with the owners of the erven are as indicated in
the following table:
Erf
number:
OWNER
IDENTITY NUMBER
3…..
Koliswa Rose
Bamba
6…………
3………
Nomonde Patience
Luwaca
6………….
3……..
Matiwana Tom
4…………….
3……
Silumko Maqoqa
Nontsomi Maqoqa
5……………….
5…………………..
3……
*Ntombothini
Sazinge
6………….
3………
Mzwandile Michael
Konisani
Sindiswa Lynette
Konisani
6…………..
6…………….
3……
*Wani Mthethi
*Nomahomba
Mthethi
4……………….
5……………..
3……..
Primrose Homvume
Tyali
5……………….
3…….
Nontuthuzelo
Mavis Manquphu
6……………….
3……..
Sizwe Jongile
Sindiswa Margaret
Jongile
6……………….
6……………
3……..
Lamla
Welcome Nteta
*Nomathamsanqa
Janet Nteta
5……………..
6……………..
3…….
Nomandlokwenyani
Matusela
4………………..
3………
*Jeliat
Germs Gqozongwane
*Nobayeza Vonolia
Gqozongwane
5…………….
5………………
3…….
Nikiwe
Marie Manyefane
*Drummond
Zola Manyefane
5…………….
5……………
3……
*Nokaya Mahlombe
3…………
3…….
Zilandile Mxatule
Ntomboxolo
Mirriam Mxatule
5……………….
6……………….
3……..
Bongani Zilwa
Thelma
Nomsangaphi Zilwa
6……………
6…………..
3…….
Feziwe Felicia
Mpande
6…………
3………
Western Cape
Government
3……..
Khayalethu
Marwayi
7…………..
3……..
Zwelitsha
Nontswabu
Nomnandiphi
Nontswabu
5……………
5…………..
3………
Nowekeni Tozi
Nelani
3………….
3………
Joseph Ngqaba
Nomteto Adelaide
Ngqaba
4………………
4……………
3………
Nobejile
Notetangaye Gongota
4………………
3……….
*Forty Kibi
*Nofinish Kibi
5…………..
5…………..
3……………
Nomathemba Esther
Matiwane
*Zinakile Joseph
Matiwane
4………..
4………….
3…………….
Nocounter Mavis
Mkrweqana
*Xhakalegusha
Mkrweqana
4…………..
4………….
3………..
Western Cape
Government
3………….
Lincolin Thobile
Gqola
6…………..
2…………
Western Cape
Government
*deceased
6.
It is declared that once the
order in 3 is complied with then the owners of erf 3643
are:
3…….
Richard Winget Tshulisi
Nontombiziteni Mavis Tshulisi
4…………….
6………….
RILEY,
AJ