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[2015] ZAGPJHC 17
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Medupe and Others v Sithole and Others (42116/2013) [2015] ZAGPJHC 17 (3 February 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO. 42116/2013
DATE:
03 FEBRUARY 2015
In
the matter between:
FILI
PHILEMON
MEDUPE
..........................................................................................
First
Applicant
MAPISO
ESME
MEDUPE
.........................................................................................
Second
Applicant
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
HOUSING, GAUTENG
PROVINCE
....................................................................
Third
Applicant
And
EPHRAIM
MKHITSHWA
SITHOLE
.......................................................................
First
Respondent
DUDUZILE
ELIZABETH
SITHOLE
....................................................................
Second
Respondent
THE
REGISTRAR OF
DEEDS
.................................................................................
Third
Respondent
JUDGMENT
REDMAN
AJ
[1]
The first and second respondents are the
registered title holders of the property described as erf 3......
R......... Extension
2 Township M........ City (
'the
property
") which they hold in
terms of a title deed registered in their names (being title deed no.
T.........).
[2]
The applicants seek an order directing the
Registrar of Deeds to cancel the aforesaid title deed and re-transfer
the property to
the Provincial Government of the Province of Gauteng
being the original owner thereof.
[3]
It is common cause that during December
1997 the first and second applicants took occupation of a portion of
the property and erected
a shack thereon. At that stage the property
was a vacant stand and the first respondent was elderly, unemployed
and of ill health.
Around the time of taking occupation of the
property, the first applicant had made application to the Mogale City
Municipality
for an RDP house.
[4]
Some years later, in 2003, the first and
second respondents moved onto a portion of the property. During
the period 2003 to
2006, the first and second applicants and the
first and second respondents lived alongside each other on the
property and it transpires
that both the first and second applicants
and the first and second respondents had made application to the
local authorities to
acquire greater rights in the property. Both the
first and second respondents and the first and second applicants
asserted an entitlement
to the property.
[5]
From the correspondence addressed by the
Mogale City Local Municipality ("
the
Municipality
") it emerges that on
3 November 2005 the adjudication committee of the Municipality had
resolved the dispute between the parties
and allocated the property
to the first and second applicants. Upon allocating the property to
the first and second applicants,
the municipal authorities directed
the first and second respondents to relocate to a property situated
in R...... E....... 3.......
This direction followed upon an
investigation having been conducted and a report having prepared by
the municipal authorities in
respect of the dispute.
[6]
In December 2007, a meeting was held
between the first and second applicants, the first and second
respondents, a member of the
mayoral committee (Housing), the ward
councillor and housing officials of the Municipality. At the meeting
it was determined that
the first and second respondents should vacate
the property and relocate to erf 5...... R...... E........ 3A (a
property which
had purportedly been allocated to the first and second
respondents). Pursuant to this meeting a letter was addressed by the
Municipality
to the first and second respondents requesting them to
relocate to the new site. Despite the aforesaid requests, the
first
and second respondents remained on the property.
[7]
On 9 March 2009 the MMC for Housing of the
Municipality addressed a letter to the Manager of Housing confirming
that the decision
to allocate the property to the first and second
respondents still stood and directing the Housing Department to
implement the
allocation as a matter of urgency.
[8]
During 2010 the first applicant completed
documentation prepared by the Housing Transfer Bureau to facilitate
the transfer of the
property into his name. In addition, during the
course of 2011 and 2012 the applicant lodged further documentation
with the Department
of Local Government and Housing of the Gauteng
Province.
[9]
An
adjudication process was thereupon commenced by the Department of
Housing Gauteng (presumably under section 24A of the Gauteng
Housing
Act, 6 of 1998)
[1]
.
During the course of the adjudication process it was discovered that
the property had already erroneously been transferred to
the first
and second respondents.
[10]
It is the applicants' case that the
transfer of the property into the names of the first and second
respondents was made in error
and prior to the conclusion of the
adjudication process. The transfer of the property had taken place
without any reference to,
or consideration of, the representations
and submissions which had been made by the first and second
applicants and the decisions
which had been made by the Municipality.
[11]
The application is brought not only by the
first and second applicants but also by the Director-General of the
Department of Housing,
Gauteng Province who is described as the
"officer responsible for housing matters in terms of the
Conversion of Certain Rights
into Leasehold or Ownership Act, 81 of
1988 or under the Gauteng Housing Act, 6 of 1998".
[12]
Sibusiso Raymond Dube, who is described as
the Director of the Assets Disposal and Regularisation Directorate of
the Department
of Housing Gauteng Province, confirms in an affidavit
that an error occurred in the registration of the property into the
names
of the first and second respondents. He confirms that
there were two conflicting claims and accordingly the matter should
have been referred to adjudication. Dube also confirms that the
resolution and recommendations of the Municipality should have
been
taken into account before transfer of the property. The first and
second respondents are unable to gainsay the allegations
made by Dube
and the fact that the transfer was effected in error.
[13]
I am satisfied that the applicants have
established that the transfer of the property to the first and second
respondents was made
in error and that the procedure prescribed in
section 24A of the Gauteng Housing Act was not followed. I
accordingly make an order
in the following terms:
1.
Title Deed No. T....... in respect of erf
3..... R..... E........ 2 Township M...... City in the names of
Ephraim Mkhitshwa Sithole
and Duduzile Elizabeth Sithole is hereby
cancelled.
2.
The Registrar of Deeds, Johannesburg is
directed to cancel Title Deed No. T4851/2012 in respect of erf
3........ R.......... E......
2 Township M...... City;
3.
The Registrar of Deeds, Johannesburg, after
cancellation of the aforesaid Title Deed is directed to transfer the
property known
as erf 3..... R..... E....... 2 Township M...... City
to the Provincial Government of the Province of Gauteng;
4.
The first and second respondents are
directed to pay the costs of this application.
N
P G REDMAN
Acting
Judge of the High Court
Heard:
29 August 2014
Judgment
delivered: 03 February 2015
Appearances:
For
Applicants: Adv L Memela
Attorneys:
Gcwensa Attorneys
For
Respondents:
Attorneys
Langa Incorporated
[1]
Section
24A of the Gauteng Housing Act provides as follows:
"(1)
The Department is authorised to adjudicate on disputed cases that
emerge from housing bureaus established for the transfer
of
residential properties, by Premier's Directive in terms of section
171 of the Local Government Ordinance, 1939 (Ordinance
17 of 1939)
and disputed cases that emerged from the transfer of residential
properties in terms of the Conversion of Certain
Rights in Leasehold
or Ownership Act, 1988 (Act 81 of 1988).
(2)
The MEC shall ensure that 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.
…"