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2015
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[2015] ZAGPJHC 123
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Ntshalintshali and Others v Sekano and Others (2014/31317) [2015] ZAGPJHC 123 (12 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
JUDGMENT
CASE NUMBER: 2014/31317
DATE: 12 JUNE 2015
In the matter between:-
NTSHALINTSHALI,
SIPHO
.........................................................................................
First
Applicant
NTSHALINTSHALI,
CORNELIUS
..........................................................................
Second
Applicant
NTSHALINTSHALI, NCINELENI
OLGA
.................................................................
Third
Applicant
And
SEKANO, TSHEPO
EUGENE
...................................................................................
First
Respondent
NTSHALINTSHALI, DINEO
EVELYN
................................................................
Second
Respondent
THE EXECUTOR IN THE ESTATE
LATE
............................................................
Third
Respondent
SHOSHOZILE ANDREW NTSHALINTSHALI
THE DIRECTOR GENERAL OF THE
DEPARTMENT OF HOUSING, GAUTENG
PROVINCE
...............................................................................................................
Fourth
Respondent
THE MEC OF THE DEPARTMENT OF
HOUSING,
….........................................
Fifth
Respondent
GAUTENG PROVINCE
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
....................
Sixth
Respondent
THE REGISTRAR OF DEEDS
(JOHANNESBURG)
........................................
Seventh
Respondent
JUDGMENT
HEARD: 8 JUNE 2015
DELIVERED: 12 JUNE 2015
HERTENBERGER, AJ:
[1] This is an application by the
applicants to request this court to cancel a Title Deed number
T22913/2012 in terms of which the
immovable property known as Erf
768, Orlando East Township (“the property”) is held by
the first respondent, and simultaneously
therewith to cancel
certificate of registered grant of leasehold number TL42572/04.
Further the fourth respondent is then requested
to hold an
investigation and a hearing in terms of section 2 of The Conversion
of Certain Rights into Leasehold or Ownership Act
81 of 1988 in order
to determine who the rightful claimant to the property is. In
considering this matter, the court was specifically
asked to consider
the terms of the Family House Rights Agreement (“the
agreement”), which the members of the family
had concluded in
respect of the property.
[2] It is common cause that the parties
are before court as the second respondent, who was married in
community of property to the
applicants’ brother, who has since
passed away sold the property to the first respondent. The
applicant’s aver that
the second respondent’s husband
held the property merely as a custodian for the family and that no
right by the second respondent
(both in her capacity as spouse
married in community of property to the applicant’s brother and
in her capacity as the executor
of his estate) existed to sell the
property to any third party. The property at all times vested in the
family, held by the custodian
for the benefit of the entire family.
[3] The application is opposed by the
second respondent only, who avers that both she and her late husband
where recorded on the
certificate of leasehold and that this
certificate bore no endorsement of any nature that might have limited
their rights to deal
with the property. Despite the fact that she
had signed the Family House Rights Agreement, she says that she did
so without knowledge
of the content thereof and that she signed it
simply because her husband asked her to.
[4] The parties in their respective
papers are at great pains to set out how the second respondent and
her husband came to be the
holders in respect of the certificate of
leasehold. The bad blood between the family members is evident. The
court must however
leave aside the emotive elements contained in the
papers and expressed in argument, as they do not take the matter
further. What
is of importance however is the intention of the
family when they entered into the family rights agreement. The
second respondent’s
husband at the time was the eldest
surviving son and it was on this basis that he was nominated by the
others as the custodian
of the property on behalf of the family. The
inclusion of the second respondent as co-custodian came into being by
operation of
the civil marriage in community of property.
[5] The applicants attach an affidavit
by Ronald Stevens who is the Deputy Director in the Asset Disposal
and Regularization Directorate
to their replying papers in which the
deponent states:
“The title deed in respect of the
property, being erf 768 Orlando East, was registered in 2004 in the
names of Second and
Third Respondents. The Second and Third
Respondents were custodians of the property on behalf of the family.
They were also aware
of the family rights agreement but the Second
Respondent still sold the property to the First Respondent without
the consent of
the family members. When the title deed was
registered, the Housing Department should have, simultaneously with
such registration,
have endorsed the family rights agreement against
the title deed.”
And
“The administrative error on the
part of the Housing Department is the cause of the current dispute
between the family members
and the first respondent.”
[6] It appears that the error in the
offices of the Housing Department gave the second respondent an
opportunity to sell a property
that she was not entitled to sell.
Had the family rights agreement been endorsed against the relevant
deed, there would have been
a restriction on the rights of the
persons appearing on the deed to further deal with the property. The
second respondent, who
was no doubt fully aware of the existence of
the family rights agreement, took advantage of the error and sold the
property. The
Conversion of Certain Rights into Leasehold or
Ownership Act 81 of 1988 was amended in 1993 to provide for the
conversion of rights
to land into ownership. Given the manner in
which the tights to land had been dealt with in the past, the act
required the Director
General for the Department of Housing to
conduct an inquiry into the affected site and to identify the
occupier of the relevant
site. In this matter such an inquiry did
not take place, thus implying that the historical facts of how it
came to be that the
property was registered in the name of the second
respondent and her late husband was never investigated. This must
necessarily
lead to the conclusion that the registration of the
property in the name of the first respondent is null and void. See
Khuzwayo
v Representatives of the Executor in the Estate of the late
Masilela
2011 (2) ALL SA 599
SCA and also Nzimande v Nzimande &
Another
2005 (1) SA 83.
In this respect I align myself with the
sentiments expresses in Nzimande above by Jajbhay J who in turn
adopts the approach of
Satchwell J in Phasha v Southern Metropolitan
Local Council of the Greater Johannesburg Metropolitan Council 2000
(2) SA 455 (W)
that the Director General is given a wide discretion
in order “to guarantee a fair and impartial enquiry into the
contentions
of the contending parties, as to who would ultimately
qualify to acquire ownership of the house”. In doing so the
parties
who lay claim to the property are afforded an opportunity to
be heard.
[8] Despite the best attempts by the
applicant to illustrate that the second respondent had a malicious
motive in her sale of the
property, it appears that both the
applicants and the second respondent still have an equal opportunity
of arguing the matter before
the Director General and thus it is
equitable that each party bears its own costs in the matter.
In the result the following order is
made:
(1) The Registrar of Deeds,
Johannesburg is ordered to cancel in terms of
section 6
(1) of the
Deeds Registries Act 47 of 1937
, the title deed T22913/2012 over the
immovable property known as Erf 768, Orlando East Township currently
held by the first respondent;
(2) An order cancelling the certificate
of leasehold TL42572/2004 over Erf 768, Orlando East Township held by
the second and third
respondent;
(3) As a result of orders (1) and (2),
the property known as Erf 768 Orlando East Township revert to its
original owner The City
of Johannesburg Metropolitan Municipality;
(4) The fourth respondent shall as soon
as possible after orders (1), (2) and (3) have been effected, hold a
hearing in terms of
section 2
of the Conversion of Certain Rights
into Leasehold or Ownership Act 81 of 1988 as amended in 1993 for the
purposes of determining
who the rightful claimant in respect of Erf
768 Orlando East Township is;
(5) Each party shall pay its own costs.
R HERTENBERGER
ACTING JUDGE OF THE HIGH COURT
1. Representation of Applicant :
Gwensa Attorneys
2. Representation of Respondent:
Madhlopa Incorporated
3. Date Heard : 08 June 2015
4. Date Judgment delivered : 12 June
2015