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[2016] ZAGPJHC 70
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Khwashaba and Another v Ratshitanga and Others (27632/14) [2016] ZAGPJHC 70 (29 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 27632/14
DATE:
29 FEBRUARY 2016
In
the matter between:
KHWASHABA,
RATSHILUMELA
ROBERT
.................................................................
1
st
Applicant
KHWASHABA,
NELSON
AVHAPFANI
.........................................................................
2
nd
Applicant
And
RATSHITANGA,
TSHILIDZI
........................................................................................
1
st
Respondent
RATSHITANGA,
EVODIA
LUFUNO
..........................................................................
2
nd
Respondent
GOLDEN
TRUST SERVICES (PTY)
LTD
..................................................................
3rd
Respondent
CITY
OF JOBURG METROPOLITAN
MUNICIPALITY
........................................
4th
Respondent
MEC
HOUSING
:
GAUTENG
PROVINCE
................................................................
5th
Respondent
GAUTENG
PROVINCE
DIRECTOR-
GENERAL, HOUSING
PROVINCIAL
................................................
6th
Respondent
GOVERNMENT
GAUTENG
DEEDS
OFFICE,
JOHANNESBURG
..........................................................................
7th
Respondent
JUDGMENT
FRANCIS,
AJ:
[1]
The focus of the dispute is a Family House situated at [6.....] Zone
6 [M..........],
in the Gauteng Province (the property). The
applicants are brothers who dispute the right of claim to the
property by the first
and second respondents. The second respondent
is the ex-spouse of the first applicant, who laid claim to the
property as a joint
owner causing the sale of the property to the
first respondent. The validity of the second respondent’s
right to lay
claim to it as a joint owner and the subsequent sale of
the property is called into question.
Legislation
governing ‘black’ urban areas
[2]
Properties in black urban areas including this property were
subjected to a myriad of apartheid,
patriarchal and colonialist
discriminatory practices pertaining to land ownership and
entitlement. Black land ownership was not
allowed in the urban
township areas. Site permits, residential permits and certificate of
occupation were granted. These were granted
in terms of
Regulations
Governing the Control and Supervision of an Urban Black Residential
Area
which was enacted by
GN R 1036
on 14 June 1968.
The judgment by Jajbhay, J in
Nzimande v Nzimande &
Another
2005 (1) SA 83
(W), contains a useful summary of the
history of legislation governing land ownership in ‘black’
areas. I refer to
this history to place the facts
in casu
in
context.
[3]
In attempts to remedy the discriminatory practices of land ownership
and entitlement,
several legislations were enacted. In 1978 it became
possible to register rights of 99-year leasehold over property in
black urban
areas. The following sections were introduced in the
Blacks Urban Areas Consolidation Act No. 25 of 1945 (BUAC Act), 6A,
6B, 6C,
6D were black persons could acquire a registered real right
in respect of the property owned by the state. However this scheme
was unsatisfactory as it was viewed as an inferior right that
continued unfair discrimination.
[4]
In 1986 the
Black Communities Development Act no 4 of 1984
was
amended to provide for full ownership rights for black persons in
urban areas. To register ownership two requirements were
necessary.
Firstly the land had to be surveyed and a general plan registered.
Secondly a township register had to be opened in
terms of
Section
46(4)
of the
Deeds Registries Act No 47 of 1937
. The opening of a
town register took many years to complete. Since it was not opened in
all areas, at best only leaseholds could
be registered. Leaseholds of
99 years, without payment of lease became attractive but remained an
inadequate solution for black
urban properties.
[5]
The
Conversion of Certain Rights into Leasehold or Ownership Act
81 of 1988
(Conversion Act) was legislated and commenced on 1
January 1989. The intention of this legislation was to formalise and
confer
leasehold or full ownership upon the beneficiaries. This Act
repealed R1036 regulations and made the provinces responsible for the
transfer of the occupational rights granted by regulation 6 and 8
permits into leasehold or ownership. The effect was regulation
7
permits (tenants) were abolished but the rights held by these permits
were retained and protected by statute.
[6]
Ultimately the
Upgrading of Land Tenure Rights Act 112 of 1991
(Upgrading Act) was promulgated to automatically convert all
registered leaseholds into ownership when a Township Register was
opened.
The Registrar of Deeds endorsed these leaseholds into
ownership free of charge. In other words the registrar would take the
lease
agreement and endorse same to confirm the leaseholder as owner
when the township register is opened. Many of the family houses were
transferred in the name of single individuals. The transfer was
subject to family agreements restricting the rights of owners.
The
holder of leasehold may then apply for a title deed to be issued in
respect of that property in the holder’s name. The
practical
effect was prior to about September 1991 black persons did not
qualify to own property in these areas.
Background
and Facts
[7]
The applicants’ father Samson Mashaba was issued with a
regulation 8 certificate of
occupation of the property on 9 September
1958. After his death in 1981 Vele Mashaba, applicants’ mother
would have become
holder on the certificate of occupation had the
discriminatory practices not persisted. To enable the first applicant
to acquire
a loan from his employer to construct additional
accommodation for the family on the property, his employer had a
condition that
he was to head the occupational certificate. In this
regard his mother Vele Mashaba agreed to the transfer of lease to
enable the
granting of the loan. The first applicant became holder
with his mother as occupant on the certificate of occupation which
was
issued on 31 August 1984 and a lease was registered in the name
of the first applicant which was issued on about 11 October 1988.
The
said registration of title referred to the purchase and sale of
leasehold to be granted in terms of section 6A of (BUAC Act).
[8]
In 1984 the first applicant married the second respondent in
community of property.
During 1985 the second respondent was entered
in the certificate of occupation under the first applicant’s
holdership. The
names of the first applicant Robert, his mother Vele,
the second respondent Evodiah and Faith, appear on the certificate of
occupation
marked Annexure ‘RRK5. Later the marriage between
the first applicant and second respondent was dissolved by a decree
of
divorce on 4 April 1991 wherein the second respondent laid claim
to the property as a joint owner. A liquidator was appointed in
July
2008 to divide the estate. The liquidator invited tenders whereby the
first applicant tendered payment of R10 500.00 to purchase
second
respondent’s half-share interest in the property. The
liquidator ultimately sold the property to the first respondent
for
higher value. The first respondent took transfer of the property by
registration of title deed on 20 December 2012 in the amount
of R37
000. 00 and then sought an eviction order against the second
applicant and those residing on the property.
[9]
The applicants maintain that the property is a family house and were
never intended
to be the exclusive property of the first applicant.
The first applicant was only the
de jure
holder of leasehold
on behalf of his mother and her family. On the housing permit the
applicant replaced his father as the head
of the family and his
mother was reflected as an occupant under him. This marks the
property as a family house and not as his private
personal property
entitling the second respondent to a half share of their joint
estate.
[10]
A deed search conducted indicates registration of property on 3 March
1989 in the names of the first
applicant and second respondent. What
is critical is at that stage the property was still under leasehold
and transfer of ownership
from the state had not taken place. The
right of leasehold in the property was subsequently converted to full
ownership by the
Upgrading of Land Tenure Rights Act No 112 of 1991
(Upgrading Act). This act commenced on 1 September 1991. This
conversion was
called the free transfer system which practically was
possible only about 1 September 1991.
[11]
Section 2 of the Upgrading of Land Tenure Rights Act No 112 of 1991
reads as follows :
2. Conversion
of land tenure rights mentioned in
Schedule
1
.
—
(1) Any
land tenure right mentioned in
Schedule
1
and which was granted in respect of—
(
a
)
any erf or any other piece of land in a formalized township for which
a township register was already opened at the commencement
of this
Act, shall at such commencement be converted into ownership;
(
b
)any
erf or any other piece of land in a formalized township for which a
township register is opened after the commencement of this
Act, shall
at the opening of the township register be converted into ownership;
(
c
)any
piece of land which is surveyed under a provision of any law and does
not form part of a township, shall at the commencement
of this Act be
converted into ownership, and as from such conversion the ownership
of such erf or piece of land shall vest exclusively
in the person
who, according to the register of land rights in which that land
tenure right was registered in terms of a provision
of any law, was
the holder of that land tenure right immediately before the
conversion.
(2)
(
a
) In
order to give effect to
subsection
(1)
,
the registrar of deeds concerned shall make the necessary entries and
endorsements in respect of his registers and other documents,
as well
as in respect of any relevant documents produced to him.
(
b
) No
transfer duty, stamp duty or other fees shall be payable in respect
of any such entries and endorsements.
(3)
For the purposes of
subsection
(2)
,
the registrar of deeds may supplement the township register of the
township concerned in accordance with the entries in any relevant
register of land rights: Provided that if he is satisfied that any
relevant register of land rights is suitable for use as part
of the
township register of the township concerned and he has endorsed the
register of land rights on the obverse with words to
that effect and
so dated it, such register of land rights shall be deemed to form
part of the township register of the township.
(4)
For the purposes of
subsection
(1) (
c
)
and
section
6
,
any piece of land in respect of which a land tenure right referred to
in
item
2
of
Schedule
1
has been granted, shall be deemed not to form part of a township
irrespective of its position.
[12]
Transfer of ownership was possible after the township register was
opened. At the dissolution
of the marriage of first applicant and the
second respondent on 4 April 1991 what existed was a leasehold and
not ownership. By
virtue of their marriage in community of property
the lease could qualify as an asset in their common estate with the
consequence
that the first applicant and second respondent had been
in the position of joint lessees until their divorce. See
Toho v
Diepmeadow City Council & Another
1993 (3) SA 679
(W) and
Msila v Msila
1999 JDR 0135 (SE) were this was followed. In
the case of
Moremi v Moremi & Another
2000 (1) SA 936
(W),
all the lessee’s rights which derived from the lease
undoubtedly became part of the joint estate. And both parties were
entitled to occupy the premises as their matrimonial home during the
subsistence of the marriage. The lease continued to operate
upon
their divorce. However from then on it ceased to provide a
matrimonial home for the parties and neither of them could insist
upon exclusive possession and occupation.
[13]
The first applicant alleges that he was unaware of the registration
of the property into his
and the second respondent’s name as he
did not apply for such registration. In a similar matter in
Shai V
Makena Family
2013 JDR 0608 (GNP), the court found that after
assessing evidence, legislation and the authorities, that Paulos was
only the
de jure
holder of occupation on behalf of his
mother and her family. Further, the court held that the officials had
used section
2 of the Upgrading of Land Tenure Rights Act dizzily to
transfer ownership to Paulos and Molly. Since the conversion took
place
without the knowledge of the other family members, the court
found that neither Paulos nor Molly had acquired any rights of
ownership.
Therefore, neither of them had the authority to dispose of
the property.
[14]
In casu
the first applicant maintains being a
de jure
holder of leasehold on behalf of his mother and her family. Upon the
divorce of the first applicant and the second respondent there
were
no ownership rights that could be transferred. The registered lease
held in the name of the first applicant did not confer
ownership
rights and the authority to dispose of the property. The owner of the
property was the state. The second respondent could
therefore not lay
claim to the property as a joint-owner but possibly as a
joint-lessee. If the second respondent became a joint
lessee with the
first applicant it cannot in my view be to the exclusion of all
others entitled to the rights flowing from the
leasehold of the
family house. It cannot be ignored that the name of the applicants’
mother was listed on the certificate
of occupation and thereby gives
rise to a possible claim in succession.
[15]
Regardless if the upgrading from leasehold to ownership took place
automatically, the basis of the transfer
in the names of the first
applicant and the second respondent occurred without a lawful basis
and in the interests of justice it
therefore cannot be ignored. See
Shai
supra. It follows that the division of the joint estate
could not include ownership of the property, and the subsequent sale
of
the property by the liquidators, the third respondent became
ultra
vires
. The seventh respondent who transferred the house in terms
of the sale agreement entered into between first and third
respondent,
which agreement was vitiated by irregularities, stands to
be set aside.
[16]
The first, second and third respondents contend that the first
applicant is estopped from maintaining
that the property did not form
part of the joint estate because he had expressly accepted and
recognized that the property was
validly and legally owned by himself
and the second respondent in equal and undivided shares. They counter
that there is no merit
in the applicants claim that ownership of the
property was irregularly registered in his and the second
respondent’s names.
By their conduct, they have confirmed and
acquiesced to the validity of the transfer by entering into an
agreement to purchase
the joint half share of the 2
nd
respondent for R10 500, 00. And therefore he be estopped from
alleging any invalidity of the transfer of the property to the first
respondent.
[17]
The first applicant’s response is that he always maintained
that the property never belonged
to him and therefore it did not form
part of his and the second respondent’s joint estate. This is
acknowledged by the second
respondent in her affidavit of 18 October
1993 at para 8.1. in her papers in case no B2005/90 by referring the
court to the first
applicant’s resistance to divide the joint
estate in respect of the property on the basis that property never
belonged to
him. It is common cause that there were attempts to
settle this matter. The first applicant submits that in his attempt
to settle
the matter he paid R10 500, 00 to the third respondent to
retain the property as a family home for his mother’s family.
However
it is evident, that at the time of the dissolution of the
marriage neither first applicant nor the second respondent could pass
ownership because neither of them were owners.
[18]
In view of the upgrading taking place without the knowledge of the
first applicant and any other
family members the first applicant and
second respondent could not acquire any rights of ownership. The
occupants of the property,
who lived there and still live there,
ought to have been considered for ownership. In taking this into
consideration it is evident
that many of the family houses were
transferred in the name of single individuals however the transfer
was subject to family agreements
restricting the rights of owners.
In
casu
neither the first applicant nor the second respondent had
the authority to dispose of the property. It follows that the defence
of estoppel cannot succeed and further it cannot be a defence to the
second applicant’s claim.
[19]
The title deed registration of the leasehold was governed by
government notice R1036 of 14 June
1968 Regulations governing the
control and supervision of an Urban Black Residential area and
related matters. Government Notice
R1036 was repealed as at 31
December 1988 by the Conversion Act.
[20]
The Conversion Act was assigned to the provinces with effect from 26
July 1996. In terms of a
resolution signed by the Premier of the
Gauteng Provincial Government on 28 August 1996, the member of the
Executive Council: Housing
and Land Affairs was designated as a
competent authority for the administration of the Conversion Act in
terms of s235 (c ) (ii)
of the Interim Constitution. This ultimately
had the effect that the transfer of state residential properties to
their rightful
occupiers and adjudication of housing disputes in the
transfer of residential properties project, including the property in
question,
will be managed by the Housing Bureaux falling under the
supervision of the fourth, fifth and sixth respondents. It is an
administrative
function to carry out a transparent enquiry process
for the resolution of housing disputes similar to that envisaged in
section
2 of the Conversion Act.
[21]
Section 2 of the Conversion Act reads as follows:-
Inquiry
as to rights of leasehold
2.
(1) Any secretary shall conduct an inquiry in the prescribed manner
in respect
of
affected sites within development areas situated within his province,
in order to
determine
who shall be declared to have been granted a right of leasehold with
regard
to such sites
'
. .
.
(2) Before the
commencement of such inquiry the secretary 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.
[22]
The conversion Act must be further read with sections 24A and 24B of
the Gauteng Housing Act
No 6 of 1998. Section 24 A provides that:-
(1)
the Department is authorized 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,
(2)
that the MEC shall ensure the transfer of residential properties to
individuals determined
to be lawful beneficiaries in terms of this
Act.
[23]
The 1
st
and 2
nd
respondents contend that
Section 2 of the Conversion Act is not applicable because the
property is not a ‘affected site’
as defined in the
Conversion Act.
“
Affected
site” means a site which is or purports to be occupied by
virtue of a site permit, a certificate, a trading site
permit or a
permit issued by the local authority concerned conferring upon the
holder thereof rights which in the opinion of the
Director-General
concerned are similar to the rights which are held by the holder of a
site permit, certificate or trading site
permit.’
[24]
They maintain that the property was no longer held by a site permit,
certificate or trading site
permit. Instead the registered leasehold
was already held by the 1
st
applicant when the Conversion
Act came into operation on 1 January 1989. It is however not in
dispute that the property was previously
occupied in terms of a
regulation 8 certificate which falls within the scope of section 2 of
the Conversion Act.
[25]
In considering the intention in the Conversion Act read with the
Upgrading Act, Jajbhay, J in
Nzimande supra
fittingly held
that ‘it was not intended to automatically convert rights held
under the R1036 regulations to more effective
common law rights of
leasehold or ownership without considering the availability, or lack
thereof of new houses in the area,
the need for family members’
occupation rights to be recognized and protected
and the need not
to increase homelessness but to decrease it in the defined area.’
(
my emphasis
). The Upgrading Act came about and gave effect to
improving the precarious position in which land tenure for black
persons had
been forced and therefore this Act should be read
together with the Conversion Act to give contextual meaning to its
proposed intention
to consider the occupational rights of occupiers.
Therefore it follows as the MEC is entrusted with the transfer of
residential
properties to individuals it will have to determine who
the lawful beneficiaries are by using appropriate mechanisms in
making
its determination. The mechanisms provided by section 2 of the
Conversion Act suitably address the precarious position of land
tenure relating to leasehold and ownership.
[26]
The supreme court of appeal in
Kuzwayo v Estate Late Masilela
[2010] ZASCA 167
held that a holder of a site permit and occupier of
a site is entitled to ask that the Director-General of Housing in the
Province
hold an enquiry in terms of Section 2 of the Conversion Act
in order to determine to whom ownership should be granted. ‘T
he
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.’
I agree
with the above view of
Dobson, AJ in
Moloi v Moloi and
Others, Smith and Another v Mokgedi and Others
[2012] ZAGPJHC 275
on the relevance of the legislation applicable to the prevailing
contextual issues. It is therefore most appropriate
in the
circumstances of this case that an enquiry in terms of section 2 of
the Conversion Act is carried out.
[27]
I turn to the last issue for consideration
that pertains to the delay in bringing this application.
It is
evident in this matter that the first applicant has been consistently
challenging what was happening since the divorce proceedings.
The
second applicant has been forced to bring this application in light
of the eviction order brought against him and those who
reside on the
property. The on-going litigation between the parties has persisted.
Although the first, second and third respondents
have set the matter
down to expedite it, the basis being the first respondent’s
urgency to effect the eviction order against
the 2
nd
applicant and those who reside on the property. I find that there is
no delay in bringing this application, it is within reasonable
time
in terms of its particular circumstances and it therefore does not
impair the application of the applicants.
[28]
No order for costs is sought and as such no order for costs is made.
[29]
In the result the following orders are made:-
29.1
The first respondent is interdicted from executing the eviction order
against the second applicant and those
occupying the house with and
under him, pending the finalization of this matter.
29.2
The sale agreement entered into between first respondent and third
respondent be declared void and invalid
and is accordingly set aside.
29.3
The second respondent’s appointment of the third respondent is
hereby declared void and invalid and
is accordingly set aside.
29.4
The appointment of the third respondent as receiver and liquidator in
the joint estate of first applicant
and second respondent is
cancelled and set aside.
29.5
The third respondent returns the R10 800.00 paid by the first
applicant in pursuance of the settlement agreement
between the first
applicant and the second respondent.
29.6
The transfer by the Transvaal provincial Administration and the
Meadowlands Township Office as well as the
West Rand Administration
Board – forerunners to and of which fourth respondent is
successor in title, is declared void and
invalid and accordingly set
aside.
29.7
The fifth and sixth respondents ensure that an enquiry is conducted
in respect of the House on Stand Number
682B Zone 6, Meadowlands
Township in accordance with and in terms of Section 2 of Act 81 of
1988 or in terms of the procedures
adopted for the resolution of
housing disputes in the transfer of residential properties.
29.8
The seventh respondent revert the ownership of the house on Stand
Number 682B Zone 6, Meadowlands Township
to the Gauteng Provincial
Department of Housing pending the decision in accordance with the
enquiry as envisaged in 29.7 above.
R.
FRANCIS, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for the Applicant: Mr L. M Biyana
Instructed
by: Ludwemabasa Biyana Attorneys
Counsel
for the Respondent: Mr D E Nkabinde
Instructed
by: D Nkabinde Attorneys
Date
of Hearing: 9 February 2016
Date
of Judgment: 29 February 2016