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[2012] ZAGPJHC 275
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Moloi v Moloi and Others, Smith and Another v Mokgedi and Others (20175/2010, 14628/2012) [2012] ZAGPJHC 275 (26 October 2012)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 20175/2010
DATE:26/10/2012
In the
matter between:
PHAKAMISA
MICHAEL MOLOI
...............................
Applicant
and
ELIZABETH
MOLOI
....................................................
First
Respondent
SINDISWE
MOLOI
......................................................
Second
Respondent
REGISTRAR
OF DEEDS
..........................................
Third
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HOUSING AND LOCAL GOVERNMENT:
GAUTENG
PROVINCE
.............................................
Fourth
Respondent
CASE NO: 14628/2012
In the
matter between:
DAVID
SMITH
...............................................................
First
Applicant
CHARLOTTE
MOJABENG SMITH
...........................
Second
Applicant
and
MOTLALEPULA
MARTHA MOKGEDI
........................
First
Respondent
THE
DIRECTOR-GENERAL OF DEPARTMENT
OF
HOUSING, GAUTENG PROVINCE
......................
Second
Respondent
THE MEC
FOR THE DEPARTMENT OF HOUSING,
GAUTENG
PROVINCE
..................................................
Third
Respondent
CITY
OF JOHANNESBURG MUNICIPALITY
............
Fourth
Respondent
REGISTRAR
OF DEEDS (JOHANNESBURG)
........
Fifth
Respondent
JUDGMENT
Dodson AJ:
I
ntroduction
Colonial and apartheid era land laws
discriminated against Africans in various ways. In the cities,
Africans were not only confined
to satellite townships on the
periphery but were also prevented from obtaining title which
guaranteed them security of tenure.
1
The impact of the racially discriminatory spatial
planning of South African cities is a legacy which will take years
to remedy.
Addressing discrimination in relation to title and
security of tenure is complex but, at least in the cities,
potentially capable
of more rapid repair. An early but
unsatisfactory attempt at repair, at least in its original form, was
the Conversion of Certain
Rights to Leasehold Act No. 81 of 1988.
The Act was part of the apartheid government’s attempts to
reform its influx control
policy when it was forced to recognise
that Africans could not perpetually be relegated to the status of
temporary sojourners
in South Africa’s cities.
The Conversion of Certain Rights to Leasehold Act
allowed for rights of occupation under the racially discriminatory
regulations
which controlled the occupation of African townships
2
(“the Urban Area regulations”) to be
converted into 99 year leasehold. The 99 year leasehold was
recognised as a form
of title which was registrable in the Deeds
Registry. It was capable of transfer. However racial discrimination
persisted insofar
as it did not accord recognition of full ownership
to its intended beneficiaries.
3
The determination of who would be entitled to the
leasehold rights would in terms of section 2 of the Act be
determined at an
administrative inquiry.
In 1993 the Act was substantially amended. The
name of the Act was changed to the Conversion of Certain Rights into
Leasehold
or Ownership Act No. 81 of 1988.
4
I will refer to it as the “Conversion Act”.
As the name change suggests, provision was now made for the
conferral
not only of leasehold but also of ownership where the
affected property was situated in a formalised township for which a
township
register had been opened. The procedure for determination
of the person entitled to leasehold or ownership pursuant to an
inquiry
was retained.
By way of Proclamation No. 41 of 1996 dated 26
July 1996
5
the administration of the Conversion Act was
assigned to the provinces in terms of section 235(8) of the
Constitution of the Republic
of South Africa, Act No. 200 of 1993
and
section 2(2)
of the
Land Administration Act No. 2 of 1995
. The
Gauteng Province has effected subsequent amendments to the
Conversion Act
6
which, save to the extent mentioned below, do not
impact on this matter.
Two disputes arising from the implementation of
the provisions of the Conversion Act were heard before me in the
same motion
court week. I deal with both
matters in this judgment.
Factual
background
in the Moloi matter
This
dispute pertains
to Erf 2774A, Zone 2, Pimville, Soweto, Johannesburg. The applicant
apparently resides at Erf 2774B, Zone 2,
Pimville, Soweto,
Johannesburg. Numerically, it would appear to be the neighbouring
property.
The applicant is a pensioner and the
brother-in-law of the first respondent. The first respondent was
married to the applicant’s
late brother, Henry Moloi. The
applicant and Henry’s mother was Mrs Violet Moloi. It is
common cause that Violet Moloi
was granted a residential permit in
terms of the Urban Area regulations in respect of Erf 2774A.
Violet Moloi passed away on 16 May 1991. By this
time the applicant was living at 2774B and his late brother and the
first respondent
were living at 2807A. On 6 June 1991, not long
after their mother’s death, various family members including
the applicant
attended a meeting at the
“
Soweto
Council”
. A brief minute of the
meeting records as follows:
“
All
family members unanimously agree that Henry Moloi be considered for
the tenancy of house 2774A, Zone 2, Pimville, and be regarded
as a
family house.
1. LM Mdlala
2. Nellie Moage
3. Michael Moloi
4. Johannes Motaung.”
The minute records further that a nephew Matthews
was “
against the decision to
consider Henry for the house”
.
It was then ruled that the Housing Committee would decide as to who
was to assume tenancy of the house. The document does not
indicate
what the ultimate decision of the Housing Committee was, but a later
document referred to below does.
During 1994, the applicant was arrested for armed
robbery and sentenced to 15 years imprisonment at Leeukop Medium C
Prison. He
was released from prison on 13 December 2004 and upon
coming home discovered that Erf 2774A and the house on it had been
transferred
to and registered in the name of his late brother and
the first respondent. He had been excluded.
Living
in the house on Erf 2774A he found the second respondent who is the
disabled daughter of his late brother. She lives there
together with
her brother who is also disabled.
The applicant therefore sought the intervention
of the South African National Civil Organisation (“SANCO”).
Later
he lodged a complaint with the Provincial Department of
Housing. He complains that he was never told about the inquiry
process
under the Conversion Act and could not have known about it
because he was incarcerated in prison.
On 21 August 2008, the applicant received a
response from the Provincial Department of Housing. It reads as
follows:
“
This
letter serves to inform you about the outcome of the investigation
conducted as a result of a complaint lodged on the 18
th
March
2008.
Your complaint was
investigated and the Anti-Fraud and Corruption Unit established that:
Stand No.
2774A was allocated to Ms Violet Moloi and her family on the 24
th
April 1979.
After
Violet Moloi’s death on 16
th
May 1991, the Housing Committee of the Soweto
City Council resolved on 18
th
June 1991 that the tenancy of Stand No. 2774A be
transferred to Thabo Hendry Moloi. This resolution was taken in line
with the
recommendation made by members of the Moloi’s family.
In 1998 an adjudication
hearing was conducted and the dispute was between Thabo Hendry Moloi
and Matthews Moloi. The decision
of the adjudicator was in favour of
Thabo Hendry Moloi.
Please note the following
If the matter has been
adjudicated, the property registered with the Deeds Office, there is
no way in which the Department of
Housing can reverse the verdict.
The only way is for the prejudiced party or the party which is not
satisfied with the verdict
to lodge an appeal with the High Court
because it is the only forum which has jurisdiction to reverse the
verdict.”
It is this which prompted the present
application.
Although this is not alleged
in the founding affidavit, the applicant asks the court to infer
that the first respondent and her
late husband fraudulently omitted
to disclose the existence of the applicant at the time of the
relevant inquiry under the Conversion
Act.
On the above grounds, the applicant seeks an order as follows:
“
1.
That the immovable property situated at Erf No. 2774A Zone 2,
Pimville, should be registered as a family house.
2. That the first respondent
is hereby ordered to do everything in her powers including signing of
necessary documentation to have
the aforementioned property so
registered.
3. That the second respondent
is ordered to give unhindered access to the applicant over the
immovable property situated at Erf
No. 2774A, Zone 2, Pimville.
4. That the third respondent
should as soon as the second respondent has signed all the necessary
documentation register the immovable
property situated at Erf 2774A,
Zone 2, Pimville, as a family house.
5. Condoning the late filing
of this application.”
The first respondent’s answer to the applicant’s claim
is that the process envisaged by the Conversion Act was properly
followed. It was a disputed process and the matter was fully and
finally adjudicated in their favour. Consequent upon that, the
property was transferred into the name of herself and her late
husband.
She points out further that neither the statutory
appeal remedy provided for in section 3 of the Conversion Act nor
any judicial
review proceedings have been pursued by the applicant
or anyone else to upset that decision.
Given
that the present application is not framed as a review, the first
respondent concludes that the applicant has
“
followed
the wrong procedure”
and is
“
hopelessly out of time”
.
She goes on to point out that the applicant is
the owner of the property which he currently occupies, Erf 2774B,
and has no valid
reason to challenge her title to the property. She
also points out that it is her intention at a later stage to
transfer Erf
2774A to the disabled children of her late husband who
currently occupy the property. She accordingly askes that the
application
be dismissed.
Factual background in
the Smith matter
The applicants in this matter are husband and
wife. The first applicant alleges that in 1969 his late parents,
Joseph and Audrey
Smith
“
entered
into an agreement with the late Mr Ernest Mpshe to the effect that
they should move into [Erf 2279, Pimville, Zone 2,
Soweto,
Johannesburg], since he was leaving Johannesburg and going to stay
in Evaton.”
He avers that he and his parents then moved into
the vacant property which, at the time, consisted of a small,
shabby, four-roomed
house. They proceeded to substantially renovate
the property and extend the house. They remained in peaceful and
undisturbed
possession of the house until 1997 when they learned
that the Johannesburg City Council was calling on persons occupying
houses
in the area to lodge claims for the transfer of the houses
into their own names. His mother, Audrey, lodged a claim and upon
doing so learned that the first respondent had lodged a similar
claim in respect of the property. The tribunal then conducted a
hearing where the competing claims were considered and the matter
was decided in favour of his late mother.
The first respondent then appealed but later withdrew her appeal and
the matter was struck off the roll. The family then awaited
implementation of the tribunal’s decision and continued in
occupation of the property. To the family’s surprise,
in 2002
they learned that a title deed had been issued two years earlier in
2000 in favour of the first respondent, despite the
outcome of the
tribunal hearing in Audrey’s favour.
They duly lodged a complaint with the provincial
department of
housing. The provincial
department of housing took years to deal with the complaint. On 11
July 2011, they eventually received
the following response:
“
The
property was allocated to Ernest Mpshe and Mr Smith alleges that
there was an agreement between Mpshe and his family in terms
of which
the Smith family took occupation of the property from 1969. Mpshe
moved out of the property and stayed in Evaton.
The permit
remained in his name. Ernest Mpshe enumerated his sister and nephews
on the permit. They did not stay in the property
as it was occupied
by Smith’s family. Martha Mpshe lodged a claim in respect of
the property. Mrs Smith also lodged a claim.
The matter was
adjudicated and Adjudicator Elliot gave a ruling in terms of which he
pronounced that the Smith family has an indefinite
lease over the
property. An appeal was lodged by Martha Mpshe. The matter was struck
off the roll and the appeal withdrawn. There
is no clear basis for
this decision.
Martha Mokgedi could not
legitimately benefit on this house as she has already benefitted in
that she has been allocated property
No. 3245 Chiawelo Ext. 2. I am
of the view that she has benefitted twice and this is not
permissible.
ACTION
Cancel title deed in respect
of house No. 2279 Zone 2 Pimville and refer matter back to
adjudication.
There is likelihood that Ms
Mokgedi would not cooperate and if that is the case the attorney
instructed on this matter should
approach the court.
Ms Mokgedi is not young so it
is important to take action urgently as she is also in the process
of evicting the Smith’s
family.”
On this basis, the applicant seeks an order directing the Registrar
of Deeds to cancel the relevant title deed in favour of the
first
respondent and directing the second respondent, the Director-General
of the Department of Housing in the Gauteng Province,
to convene an
inquiry in terms of section 2 of the Conversion Act.
The first respondent avers that she is the sister
of the Late Ernest Mpshe and that she and her brother were raised in
the house
by their late father. She avers that she took
responsibility for the property at the request of her late brother
when he moved
to Evaton. Because she was not living in the property
at the time, she asked the first applicant’s late mother to
keep
an eye on the property. She approached her because the families
knew each other well and had been neighbours and their children
had
grown up together. She denies any agreement having been entered into
between the applicant’s late parents and her late
brother. She
further alleges that the improvements to the property were effected
without her consent. She points to the permit
issued under
regulation 1036 of 14 June 1968 where Ernest is reflected as the
“
holder”
in
respect of the property and she and her children are listed as his
dependants.
In regard to the tribunal hearing she says the following:
“
It
is common cause that the matter was referred to the tribunal and it
ruled in favour of the applicant’s mother hence the
appeal that
I lodged (sic). The adjudicator only listened to one side of the
evidence. It was presented by the applicant’s
mother without
hearing my side. I withdrew my appeal on the basis that the
adjudicator appeared biased and the matter was later
struck off the
roll.”
She gives no explanation as to how, notwithstanding the tribunal
proceedings having been resolved against her, the property was
nonetheless registered in her name in the year 2000.
Statutory
Background
The adjudications referred to in both the Moloi
and Smith matters appear to have taken place before the amendments
brought about
by the Gauteng provincial legislature
7
(although nothing would turn on this).
Section 2 of the Conversion Act would, without
the amendments effected by the Gauteng provincial legislature, have
read as follows:
“
2
Inquiry as to rights of leasehold
(1) The
Director-General shall conduct an inquiry in the prescribed manner in
respect of affected sites within his province in order
to determine
who shall be declared to have been granted a right of leasehold or,
in the case where the affected sites are situate
in a formalised
township for which a township register has been opened, ownership
with regard to such sites.
(2) Before the commencement of
such inquiry the Director-General shall, after satisfying himself as
to the identity of the affected
site and of the person appearing from
the records of the local authority concerned to be the occupier of
that site, and, in respect
of premises referred to in section 52 (5)
of the principal Act, is in possession of an aerial photograph or
plan of the premises
concerned, certified as provided in section 52
(5) (a) of that Act, publish a notice indicating that such inquiry is
to be conducted.
(3) For the purposes of the
declaration under subsection (1) the Director-General may-
(a) give effect to any
agreement or transaction in relation to the rights of a holder
contemplated in subsection (4) (a) or
(b) in respect of the site
concerned, between such holder and any other person;
(b) give effect to any such
agreement or transaction, or to any settlement or testamentary
disposition in respect of such rights,
entered into or made before
the death of the last such holder;
(c) consider any intestate
heir of the last such holder to have been granted a right of
leasehold or, in the case where that site
is situate in a formalised
township for which a township register has been opened, ownership in
respect of the site concerned;
(d) give effect to any court
order or sale in execution in relation to the site concerned,
notwithstanding that such agreement,
transaction, settlement,
testamentary disposition or intestate succession could not by virtue
only of the provisions of the regulations
have been entered into or
made or was entered into or made without the approval of any person
whose approval would have been required
under the regulations, and
notwithstanding that the site permit, certificate or trading site
permit concerned had lapsed upon the
death of such holder.
(4) At the conclusion of the
inquiry and after having considered any relevant claim or objection,
the Director-General shall, if
he is satisfied that the person
concerned is, subject to the provisions of subsection (3), in respect
of the site concerned-
(a) the holder of a site
permit, certificate or trading site permit; or
(b) the holder of rights which
in the opinion of the Director-General are similar to the rights of
the holder of a site permit,
certificate or trading site permit,
determine whom he intends to
declare to have been granted a right of leasehold or, in the case
where that site is situate in a formalised
township for which a
township register has been opened, ownership in respect of the site
concerned.
(5) Whenever he has made a
determination as contemplated in subsection (4), the Director-General
shall publish a notice stating-
(a) that such a determination
has been made in respect of the site stated in the notice;
(b) that the prescribed
particulars of that determination are open to inspection for a period
of 14 days as from the date of the
publication of the notice at the
prescribed place;
(c) that that determination
shall be subject to appeal to the Administrator concerned in the
prescribed manner; and
(d) that, subject to any
decision of the Administrator concerned on appeal, the person
concerned shall be declared to have been
granted a right of leasehold
or, in the case where that site is situate in a formalised township
for which a township register
has been opened, ownership in respect
of the site concerned.”
Section 3 dealing with appeals then provides as follows:
“
3
Appeals
(1) Any person who considers
himself aggrieved by any determination contemplated in section 2 (4)
may, within such period and in
such manner as may be prescribed,
appeal against that determination to the Administrator concerned, who
may, after investigation
of the appeal and with due regard to the
provisions of section 2 (3) and (4), confirm, set aside or vary the
determination or make
such other determination as in his opinion
should have been made.
(2) Any person who feels
aggrieved by a decision of the Administrator under subsection (1),
may within a period of 30 days from
the date upon which he has been
informed of the Administrator's decision, appeal to a competent court
against that decision by
lodging with the registrar of that court a
notice of appeal setting out in full his grounds of appeal.
(3) Any person who appeals in
terms of subsection (2) shall, when lodging such notice of appeal,
deposit with the registrar concerned
an amount of R200 as security
for the costs of the appeal and shall on the same day deliver or send
to the Director-General a copy
of the notice of appeal.
(4) The Director-General
shall, within a period of 30 days from the date upon which he has
received the notice of appeal referred
to in subsection (2), send to
the registrar referred to in that subsection in respect of the
inquiry concerned-
(a) the documentary evidence
admitted at the inquiry;
(b) a statement of the
decision of the Administrator and the reasons for such decision;
(c) any observations which the
Administrator may wish to make.
(5) An appeal in terms of
subsection (2) shall be prosecuted as if it were an appeal from a
judgment of a magistrate's court in
a civil matter, and all rules
applicable to the hearing of such appeal shall mutatis mutandis apply
to an appeal under this section.
(6) The court hearing an
appeal under this section may confirm or set aside the decision or
make such other determination as in
its opinion should have been made
by the Administrator.
(7) The registrar shall
without delay furnish the Director-General with a copy of the order
of the court.”
Sections 4 and 5 then provide for the
implementation of the decision taken in the inquiry process as
follows:
“
4
Granting of leasehold or ownership
(1) The Director-General shall
upon the expiry of the period specified for appeal under section 3
(1) or, in the case of such appeal,
on the confirmation, variation or
substitution of the determination referred to in section 2 (4), in
the prescribed manner declare
the person concerned to have been
granted-
(a) a right of leasehold in
respect of the affected site concerned under section 52 (1) of the
principal Act, whereupon that person
shall be deemed for all purposes
to have been granted a right of leasehold under the said section 52
(1); or
(b) in the case where the
affected site is situate in a formalised township for which a
township register has been opened, ownership
in respect of the
affected site concerned.
(2) The provisions of section
52 (4) of the principal Act shall not apply in respect of any
leasehold contemplated in subsection
(1).
5 Registration of
leasehold or transfer of ownership
(1) Whenever the
Director-General has made a declaration-
(a) in terms of section 4 (1)
(a), he shall lodge such declaration and every deed and other
document necessary for the registration
of the right of leasehold
concerned with the registrar concerned, who shall-
(i) for the purposes of
registration, accept that the particulars contained in the
declaration are correct; and
(ii) without the production of
any certificate to the effect that the levies or charges in respect
of the affected site concerned
have been paid to the local authority,
register the right of leasehold in favour of the person mentioned in
the declaration;
(b) in terms of section
4 (1) (b), he shall lodge such declaration and a deed of transfer, on
the form prescribed for that
purpose under the Deeds Registries Act,
1937 (Act 47 of 1937), and made out in the name of the person
mentioned in the declaration,
with the registrar concerned.
(1A) (a) A deed of transfer
referred to in subsection (1) (b) shall be prepared by-
(i)
a conveyancer; or
(ii) if the owner of the
affected site is the State or any local government body, any officer
in the public service or person in
the employ of such local
government body, as the case may be, who has been designated for the
purpose by the Minister of Land Affairs,
a Premier or a local
government body, as the case may be.
(b) A deed of transfer
referred to in subsection (1) (b) shall be in the form prescribed
under the
Deeds Registries Act, 1937
, and shall be signed by the
owner of the affected site or his or her duly authorised agent in the
presence of a conveyancer referred
to in paragraph (a) (i) or officer
or person referred to in paragraph (a) (ii) in the manner prescribed
under that Act.
(c) An officer or person
referred to in paragraph (a) (ii)-
(i) shall disclose the fact
that the deed of transfer referred to in subsection (1) (b), or any
power of attorney, application or
consent, which may be required by
the registrar for the purposes of the registration of the transfer
was prepared by him or her,
by signing an endorsement to that effect
on the deed of transfer, power of attorney, application or consent,
as the case may be,
and by virtue of such signing accepts, mutatis
mutandis, in terms of
section 15A
(1) and (2) of the
Deeds Registries
Act, 1937
, responsibility for the correctness of the facts stated in
any such document; and
(ii) may, despite anything to
the contrary contained in any other law, perform all of the functions
of a conveyancer in relation
to the registration of a deed of
transfer as contemplated in this section.
(d) A conveyancer, officer or
person referred to in paragraph (a) shall lodge the deed of transfer
together with the necessary supporting
documents at a deeds registry
in the manner prescribed under the Deeds Registries Act, 1937.
(e) The registrar shall deal
with a deed of transfer and the other documents referred to in
paragraph (d) as if such deed of transfer
were executed in the
presence of the registrar in terms of section 20 of the Deeds
Registries Act, 1937.
(f) Ownership of the affected
site shall be deemed to have been transferred on the date of
registration by the registrar of a deed
of transfer referred to in
subsection (1) (b).
(g)
Section 17
(1) and (2) of
the
Deeds Registries Act, 1937
, shall not apply to and no transfer
duty or stamp duty shall by[sic] payable in respect of the transfer
of ownership of the affected
site in terms of this section.
(h)
Sections 4
(2) and
5
(1)
(a) (ii) shall mutatis mutandis apply in respect of a deed of
transfer referred to in subsection (1) (b).
(2) If the occupier of a site
is not the holder of the right of leasehold or the owner in respect
of it, the Director-General shall
not act in terms of subsection (1)
unless he is satisfied that the amount of any bona fide improvements
on the site that have been
effected by that occupier has been
assessed in the prescribed manner and paid to that occupier, or that
security to the satisfaction
of the Director-General has been
furnished for the payment of that amount.
(3)(a)
Sections 10
(1) (q) and
16A
of the
Deeds Registries Act, 1937
, shall apply in respect of the
said right of leasehold as if it were a right of leasehold referred
to in those sections.
(b) ......
(4) The Director-General shall
for the purposes of any registration in terms of this section be
deemed to be the duly authorized
representative of the local
authority concerned.”
The administration of the Conversion Act having been assigned to the
provinces, these provisions would however have to be read
with
sections 24A and 24B of the Gauteng Housing Act No. 6 of 1998 which
provided as follows:
“
24A Transfer of residential
properties
(1) The Department is authorised to adjudicate
on … disputed cases that emerged from the transfer of
residential properties
in terms of the Conversion of Certain Rights
into Leasehold or Ownership Act, 1988 (Act 81 of 1988).
(2) The MEC shall ensure the transfer of residential properties
to individuals determined to be lawful beneficiaries in terms of
this Act.
(3) The Department shall deal with disputed cases through
adjudication and appeal panels established in terms of section 24B.
(4) The adjudication and appeal panels shall be abolished once
all disputed cases have been disposed of.
24B Establishment and composition of adjudication and appeal
panels
(1)
There are
hereby established an adjudication panel and an appeal panel.
(2) The MEC appoints so many adjudicators as the MEC deems
necessary to adjudicate on disputed cases in order to determine the
lawful beneficiary to whom a residential property must be
transferred.
(3) The adjudication panel comprises of persons drawn from the
following categories:
(a) practicing advocates and attorneys; and
(b) other legal professionals (lecturers, legal advisors, etc.)
(4) …
(5) The appeal adjudicators shall be selected by the MEC from the
panel of adjudicators, and shall only deal with appeal
adjudications.”
The effect of all these provisions was and still
is that an inquiry is held in which the history of, and
documentation pertaining
to, each affected site or property is
considered, along with competing claims (and objections to claims)
for the conferral of
title. The effect of the Gauteng Housing Act of
1998 is that, instead of the director-general, an adjudicator from a
panel presides
over the hearing. Although sections 24A and 24B of
that Act were only introduced into the Gauteng Housing Act in 2000,
the fact
that they were made retrospective to 1 September 1998 and
the reference in the official documentation in the Moloi case to
“adjudicators”,
suggests that the adjudicative and
appeal powers in sections 2 and 3 of the Conversion Act had been
delegated to such adjudicators
at an earlier stage. (Whether the
adjudicative powers in the two matters before me were exercised by
the director-general, or
an adjudicator with delegated powers or
statutorily-conferred powers to do so, I will for the sake of
consistency refer to the
decision-maker under section 2 as “the
adjudicator”.)
After enquiring into the facts, considering the
claims and objections and applying the criteria in sections 2(3)(a)
to (d) and
2(4)(a) and (b) of the Conversion Act, the adjudicator
“
determines whom he [or she]
intends to declare to have been granted a right of leasehold or …
ownership”
in terms of section
2(1) and (4). That decision-making process is plainly administrative
action as contemplated in section 33
of the Constitution and, from
30 November 2000, administrative action as defined in
section 1
of
the
Promotion of Administrative Justice Act No. 3 of 2000
.
In terms of
section 2(5)
a notice must then be
published announcing the determination, stating that it is open for
inspection and that it is subject to
appeal in the prescribed manner
of appeal.
Section 3
then provides an administrative appeal
to any party who is aggrieved by the decision of the adjudicator. In
terms of the Gauteng
Housing Act of 1998 the appeal is considered by
appeal adjudicators from the appeal panel. That appellate
decision-making process
is also administrative action.
The
prescribed period for the bringing of an appeal
8
is 30 days.
Any party aggrieved by the outcome of the
administrative appeal then has a further 30 days within which to
bring an appeal to
a “competent court”. “Competent
court” refers to a high court with jurisdiction, having regard
to the
reference to “the registrar” and the requirement
that the appeal be prosecuted as if it is an appeal from a
magistrate’s
court in a civil matter.
Once the adjudicative and appeal processes have
run their course, the official who has been assigned the powers and
duties of
the director-general, is obliged to declare the person who
was successful in the inquiry to have been granted leasehold or
ownership,
as the case may be. Section 5 then requires him or her to
ensure that a deed of transfer is prepared and, together with the
declaration,
lodged at a deeds registry. The registrar of deeds is
then required to execute the transfer.
Application
of the law in the Moloi case
There are a number of difficulties with the case
sought to be made out by the applicant.
The
transfer of the property to his late brother and his sister-in-law
was consequent upon an inquiry and an administrative decision
taken
by an adjudicator in terms of section 2 of the Conversion Act. No
attempt was made by the applicant to follow the administrative
or
the court appeal processes in respect of that decision and the time
periods for doing so have long since passed. The adjudicator
who
presided over the inquiry is
functus
officio
and the decision must be taken
as valid until it is set aside on review.
9
The application before court is certainly not
cast in the form of a review application. The consequence of this is
that the decision-maker
has not been provided with any opportunity
to provide the record of the decision-making process or the full
reasons for the decision.
This creates an immediate and obvious
impediment to undoing the outcome of the administrative
decision-making process.
Even if I assume in favour of the applicant that the application is
to be treated as a review there are further difficulties.
The
failure to exhaust internal remedies can be overlooked on account of
the applicant’s having been incarcerated at the
time of the
relevant decision.
However, a review must still be brought within a
reasonable time.
10
In this regard, the applicant has included a
“
founding affidavit condoning the
late filing of the notice of motion”
.
In it he ascribes his delay in bringing the application to his
incarceration and his attempts to resolve the matter through
seeking
the intervention of SANCO and thereafter by lodging a complaint with
the provincial Department of Housing. The delay
occasioned by his
incarceration is understandable. However, he was released from jail
on 13 December 2004. On his own version
he waited for more than a
year until 30 February 2006 before seeking the intervention of the
civic body. Their endeavour to resolve
the matter appears to have
ended around 30 May 2007. There was then a delay of more than a year
until August 2008 before the
applicant lodged a complaint with the
Department of Housing.
The Department of Housing responded promptly on 21 August 2008. They
pointed out the need for court action if the decision of
the
adjudicator was to be disturbed. Yet the applicant waited for almost
two years until June 2010 before launching his application.
He
ascribes this delay to the Legal Aid Board’s refusal to give
legal aid for civil matters. However he provides no detail
in this
regard about when he approached the Legal Aid Board and why he was
ultimately able to bring proceedings in June 2010,
but not before
then.
In the circumstances, I find that the applicant failed to bring his
application within a reasonable time.
Even if the delay is overlooked, there are
further difficulties. The applicant asks this Court to infer that
there was a fraudulent
non-disclosure by the first respondent and
his late brother at the inquiry. The applicant asserts the
non-disclosure on the basis
that if his family members had mentioned
his existence at the inquiry, the decision to award the house to the
applicant’s
late brother as the sole intestate heir, would not
have been made
.
However, this reasoning is based on a
misconception of the decision-making process envisaged by section 2
of the Conversion Act.
Section 2 does not simply create a right to
take ownership or leasehold on the basis of the law of succession.
It interposes
the exercise of an administrative discretion by an
adjudicator. That discretion is a broad one in which criteria are
provided
for consideration by the adjudicator to determine who
should be awarded title. These are criteria, not fixed rules.
The most important criterion appears from
sections 2(4) and 2(2) to be the determination of who the holder of
a site permit (or
rights equivalent to those held under a site
permit) under the Urban Area regulations was in respect of the
property. In this
regard, the family including the applicant (but
excluding the nephew, Matthews) agreed at the meeting on 6 June 1991
at the Soweto
Council that the applicant’s late brother should
be the holder of the site permit and this was confirmed by the
Council
when it resolved on 19 June 1991, pursuant to the family’s
recommendation, to recognise the applicant’s late brother
as
the holder of the site permit and associated tenancy.
However, section 2(3) expressly allows for
consideration to be given to awarding the leasehold or ownership to
a party other than
the site permit holder, on the basis of any of
the criteria mentioned there. These include agreements which might
have been concluded
between the site permit holder and other parties
and testamentary dispositions of a deceased site permit holder.
Section 2(3)(c) provides, by way of another
discretionary alternative, that the adjudicator
“
may
…
consider
any
intestate heir of the last such holder to have
been granted a right of leasehold or … ownership.”
(emphasis added) Clearly this does not
contemplate an obligatory transfer to all the intestate heirs. It
may, in the adjudicator’s
discretion, be any one of them or it
may be none of them.
In any event, the “last such holder”
was on the applicant’s own version his brother and not his
mother, following
the meeting at the Soweto Council on 6 June 1991.
His late brother’s heirs on intestacy are his children (who
currently
occupy the property) and his wife, not the applicant.
The brief reasons for the adjudicator’s decision which the
applicant attaches to his papers bear out the discretionary
nature
of the decision-making process. They read as follows:
“
The
claim of Henry Moloi succeeds:
Has a legal permit granted by
the council.
In terms of intestate
succession he inherits the rights belonging to his parents and his
mother was the permit holder to the property.”
This in my view represents an entirely legitimate
exercise of the discretionary decision-making power in sections 2(3)
and 2(4)
of the Conversion Act.
In the circumstances, there is no room for
inferring the fraudulent non-disclosure or misrepresentation
alleged. Indeed, it is
likely that if regard is had to the presence
of the applicant’s name on one of the old site permits as a
dependant, his
existence was disclosed and discussed at the inquiry.
In those circumstances, I am not satisfied that
the applicant in the Moloi matter has made out a case for the relief
which he
seeks and the application stands to be dismissed
with costs.
Application
of the law in
the Smith case
In the Smith case, it is common cause that the
inquiry conducted in terms of section 2 of the Conversion Act was
decided in favour
of the first applicant’s mother. It is also
common cause that the first respondent abandoned her appeal against
the decision.
Once again, the administrative decision-making process
was complete and the adjudicator was
functus
officio
.
Once that had taken place, the transfer of
ownership of the property to the first applicant’s mother
ought to have followed
automatically in terms of sections 4 and 5 of
the Conversion Act. Once she died, the property ought to have formed
part of her
deceased estate and dealt with accordingly.
Instead, the property was transferred to the
first respondent. In this instance it is indeed possible to infer
that there was,
at the very least, a clerical or administrative
error when the property was transferred to the first respondent in
direct conflict
with the decision of the adjudicator in terms of
section 2
of the Conversion Act.
11
No other evidence has been put up by the first
respondent to suggest any lawful basis for the transfer of the
property into her
name.
The question which then arises is what the
appropriate relief is. The provincial Department of Housing in a
letter dated 15 July
2011 “instructed” the applicants to
apply to Court for an order setting aside the title deed in favour
of the first
respondent. They stipulated further that once the title
deed had been set aside
“
the
matter must be sent back to adjudication”
.
The applicant’s relief is formulated accordingly. This was
also the form which the relief took in
Kuzwayo
v Representative of the Executor in the Estate of the late
Masilela
.
12
The difficulty with this proposal is that the
adjudication process is complete and no review proceedings have been
brought to
upset it. It is therefore not open to this Court or the
provincial Department of Housing to order a fresh inquiry in terms
of
section 2.
In
Kuzwayo
,
there was no evidence that any inquiry in terms of section 2 of the
Conversion Act had taken place and accordingly it was open
to the
Court to order that such an inquiry be convened.
13
This suggests that I should rather set aside the transfer to the
first respondent and order the transfer of the property to the
applicants, because transfer ought to have followed automatically
upon the adjudicator’s decision in favour of their family
member. Although the applicants did not seek to amend the notice of
motion, they urged the grant of such relief when the matter
was
argued. The first respondent, on the other hand, argued that because
of the failure to seek transfer into the applicants’
names,
the entire relief was incompetent and the application ought to be
dismissed. The latter argument cannot be correct as
the applicants
have at least shown that the transfer of the property to the first
respondent was fundamentally flawed.
Apart from the fact that relief in the form of transfer of the
property in their favour was not expressly sought, the further
difficulty with doing so is that the executor of the first
applicant’s late mother’s estate was not joined and we
have no information in regard to the administration of that estate.
It is the first applicant’s late mother who was the
successful
party in the inquiry. That suggests that transfer, at least
initially, should be in favour of her estate.
In the circumstances, I am of the view that I
must order the cancellation of the title deed in favour of the first
respondent
and allow the matter to be dealt with further by the
authorities on the basis of the steps dictated by sections 4 and 5
of the Conversion Act. The executor of the
deceased estate of the first applicant’s late mother will have
to be involved
in that process. If there is no executor, one will
have to be appointed.
Neither party pressed for a costs order
in
the Smith matter.
Orders
I make the following order in the Moloi case,
case no. 20175/2010:
The application is dismissed with costs.
I make the following order in the Smith case,
case no. 14628/2012:
The Registrar of Deeds (Johannesburg) is ordered to cancel deed of
transfer no T11155/2000 dated 2 February 2000 in respect of
Erf
2279, Pimville Zone 2 Township, Registration Division IQ and to
cancel all the rights accorded to the first respondent by
virtue of
the deed.
______________________
AC DODSON AJ
CASE NO:20175/2010
Heard: 11
October 2012
Judgment
Delivered: 26/10/12
Appearances:
For the
applicant: K Lengane
Instructed
by:
Ngcebetsha
Madlanga Attorneys
120 Fourth
Street, Parkmore, Sandton
For
the 1
st
and
2
nd
respondents:
FR Memani
Instructed
by: Nozuko Nxusani Inc
1
st
Floor Forum 3, 33 Hoofd Street, Braam Park
Braamfontein
CASE NO:
14628/2012
Heard: 12
October 2012
Judgment
Delivered: 26/10/12
For the
applicants: L Memela
Instructed
by:
Gcwensa
Atrorneys
229
Columbine Avenue, Mondeor, Johannesburg
For
the 1
st
respondent:
R R Nthambeleni
Instructed
by:
AG
Mulaudzi Attorneys
17
th
Floor, Marble Towers, Cnr Pritchard and Von
Weilligh Streets, Johannesburg
.
1
Murray
and O’Regan (eds)
No Place to
Rest: Forced Removals and the Law in SA
1990
(Oxford Universtiy Press) and the chapter by M Robertson
An
Introduction to Apartheid Land Law
p122ff;
AJ Christopher
Atlas of Apartheid
1994.
2
Government
Notice R1036 of 14 June 1968 Regulations Governing the Control and
Supervision of an Urban Black Residential Area and
Relevant Matters
as amended on numerous occasions, the last such amendment having
been effected by Government Notice 2733 of
17 December 1982.
3
Section
17
,
18
,
19
and
20
of the
General Law Second Amendment Act No. 108 of
1993
.
4
Section
24
of the
General Law Second Amendment Act No. 108 of 1993
.
5
Government
Gazette No. 17320.
6
Gauteng
Conversion of Certain Rights into Leasehold or Ownership Amendment
Act No. 7 of 2000; Gauteng General Law Amendment Act
No 4 of 2005.
7
See
footnote 6 above.
8
In
terms of regulation 5 of the regulations promulgated in terms of the
Conversion Act in Government Notice R1109 of 25 May 1990
contained
in
Govt Gazette
No.
12484.
9
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) (Also reported at
[2004] 3 All SA 1)
at para [27].
10
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A). As the adjudicator’s decision was taken in 1998, PAJA and
the time limits for review contained in it do not apply.
11
See
Kuzwayo v Representative of the Executor in the Estate of the
late Masilela
[2011] 2 All SA 599
(SCA). Here the Court inferred
an error when the property was transferred into the name of the
appellant despite the fact that
it was proven that she had foregone
her site permit on account of non-payment of rent and had agreed in
writing that she was
handing the site back to the relevant council.
12
Above
at para 33.
13
Above
at para 29.