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[2016] ZAGPJHC 86
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Soetmelk v Seezing and Others (A3040/2011) [2016] ZAGPJHC 86 (29 April 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3040/2011
DATE:
29 APRIL 2016
In the
matter between:
Soetmelk,
Edward
.....................................................................................................................
Appellant
And
Seezing,
Raymond
Victor
.............................................................................................
First
Respondent
The Housing
Appeals
Tribunal
................................................................................
Second
Respondent
Mulder,
G
.....................................................................................................................
Third
Respondent
Twaise-Ratlou,
G
.......................................................................................................
Fourth
Respondent
Registrar
of Deeds,
Johannesburg
..............................................................................
Fifth
Respondent
JUDGMENT
Van der Linde, J:
Introduction
[1]
This is an appeal under s.3(2) of the
Conversion of Certain Rights into Leasehold or Ownership Act 81 of
1988 (“the Conversion
Act”), read with the Gauteng
Housing Act 6 of 1998 (“the Gauteng Housing Act”) and the
regulations made by the
MEC under s.24C of the latter Act, against a
decision of an appeal adjudication on 15 February 2011 on
appeal to it against
a decision by an adjudicator on 2 June 2010.
[2]
The
appellant’s son Mr Godfrey Soetmelk and his son are current
occupants of the house at [2…….] [A……]
Street, [E…..] Park, and so are the first respondent and his
son. The appellant and the first respondent are related: the
appellant’s father was Mr Mathew Soetmelk; the first
respondent’s mother, Emily, was Mr Mathew Soetmelk’s
sister,
and so the two protagonists in this appeal are direct
cousins.
[3]
The
first tribunal, the adjudicator, after hearing evidence, awarded the
house to the Estate of Late Winnie Soetmelk, the responsible
representative of which is the appellant, but the appeal adjudicators
on appeal to them reversed that decision and awarded the
house to the
first respondent.
[4]
The
appellant seeks an order upholding the appeal against the award of
the appeal adjudicators, and reinstating the award of the
adjudicator, i.e. in favour of the deceased estate. The house will
then, according to the submission, be dealt with in accordance
with
the appropriate laws relating to succession.
[5]
The
first respondent not only opposes the appeal on the basis of its
asserted lack of merits, but has also applied substantively
for an
order setting aside the appeal for lack of prosecution. That
application was supported by a founding affidavit, and the
appellant’s son, Mr Godfrey Soetymelk, who was joined as first
respondent in that application, filed an answering affidavit.
A
replying affidavit followed.
[6]
That application lead to an application by
the appellant for condonation for the late filing of the record of
appeal. It was supported
by a founding affidavit. The condonation
application was opposed by the first respondent who filed an
answering affidavit. There
was no replying affidavit filed. On 13
March 2013 Thulare, AJ recorded an agreement that the first
respondent’s application
to set aside the appeal was deferred
to the hearing of the substantive appeal.
[7]
Against this introduction the two
overarching issues before this court are whether it is the
appellant’s condonation application
or, against that, the first
respondent’s attack on the appeal for lack of prosecution that
should succeed; and, of course,
the merits of the appeal. An
application for condonation of a process step in a matter that lacks
substantive merits cannot succeed.
On the other hand, if the appeal
has good prospects, that is an important factor in favour of granting
an application for condonation.
That being so the merits of the
appeal need first to be considered.
The merits
of the appeal
The facts
[8]
The material facts as these emerged from
the initial adjudication are not in dispute. They are that in 1972
the late Mrs Winnie
Soetmelk and her husband Mr Matthew Soetmelk
applied to the relevant local authority for the right to occupy the
house. Childless
couples were precluded from acquiring such rights
and the appellant, who was Mr Matthew Soetmelk’s nephew,
resolved to assist
them by proposing that they adopt his son Mr
Godfrey Soetmelk, then about four years old, and that he then reside
with them.
[1]
[9]
The proposal was accepted, the Soetmelks
were awarded the rights
[2]
and the young Godfrey went to live with them. In 1984 Mr Matthew
Soetmelk passed away. It would appear that on 14 March 1986 the
local
authority and Mrs Soetmelk entered into a lease agreement. Although
the document itself does not form part of the record,
it was accepted
by all that such a lease agreement in fact came into existence at
that stage.
[10]On
23 October 1987 the Alberton Town Council sold the property to Mrs
Soetmelk in terms of a written deed of sale. That document
does form
part of the record before us, although one page from it is
missing.
[3]
The parties were not able to supply the missing page from the Bar.
[11]In January 1988 Mr Godfrey
Soetmelk went off to military service for two years, and the first
respondent’s older brother,
Mr Richard Seezing, moved into the
house with Mrs Winnie Soetmelk. That came about because the appellant
had arranged it at the
express request of Mr Richard Seezing’s
mother.
[12]When Mr Godfrey Soetmelk
returned from the Defence Force in December 1989 he moved back into
the house. At that time Mr Richard
Soetmelk, and his wife, and their
two children, were staying there with Mrs Soetmelk. In 1991 Mrs
Soetmelk left the house and so
did Mr Godfrey Soetmelk; at the end of
that year Mrs Soetmelk passed away. In that year Ms Maria Soetmelk,
the appellant’s
daughter, moved into the house to assist with
the care-taking of Mr Ricard Seezing’s baby, Erel. She stayed
there until early
1997.
[13]In late 1998 Mr Godfrey
Soetmelk again moved back into the house, where Mr Richard Seezing
was still staying. In May or June
2006, the first respondent also
moved into the house, at his brother’s, Mr Richard Seezing’s,
invitation. In November
2007 Mr Richard Seezing passed away.
[14]
In this time-frame differences of opinion within
the family arose. This led to the appellant approaching the Master’s
office,
and him being issued with Letters of Authority on 29 August
2006.
[4]
In terms of this document, the appellant was authorised to collect
the assets of the deceased estate of Mrs Winnie Soetmelk, pay
the
debts of the estate, and transfer the net residue to the heirs of the
deceased.
[15]The
hearing before Mr RS Malatji, the adjudicator, followed on 6 May
2010, and his award in favour of the appellant followed
on 2 June
2010. There was a right of appeal to be exercised within 30 days of
that award. The first respondent appealed, leading
to the award of
the appeal adjudicators in favour of the first respondent, on 15
February 2011. Thereafter, in accordance with
the appeal award, the
house was transferred to and registered in the name of the first
respondent. The first respondent therefore
now holds the title
deed to the property.
[5]
[16]The appellant then filed an
appeal to this court on 31 May 2011 against the award of the appeal
tribunal. The appellant’s
attorneys thereafter made regular
enquiries for the transcript of the proceedings, on 2 June 2011, 13
August 2011, 13 September
2011, 8 November 2011, 24 February 2012, 20
April 2012, and 23 August 2012. Eventually, on 10 September 2012 they
were called to
say that the transcript was ready for collection. The
appeal record was then submitted, and the hearing date of 13 April
2013 was
awarded. The notice of appeal was then filed.
[17]The record before us includes
a set-down of the appeal hearing for 9 October 2013, and a letter
dated 26 September 2013 by the
first respondent’s attorney
withdrawing as attorney of record.
The legal
framework: in particular, the appeal function of this court
[18]
The starting point is the Conversion Act which
provides for the conversion of certain rights of occupation into
leasehold or ownership.
Under s.2 of that Act the D-G is empowered to
conduct an enquiry in respect of an “
affected
site”
to determine who shall be
declared to have been granted, in the case where the site is within a
formalized township
[6]
for which a township register had been opened, ownership with regard
to the site. This is the enquiry which the adjudicator, acting
under
ss. 24A and 24B of the Gauteng Housing Act, and the regulations, had
embarked on in the present matter.
[19]
The
powers of the adjudicator are set out in s.2(3)(a) to (d) of the
Conversion Act. They are wide, because they enable him or her
to
determine whom he or she intends to declare to have been granted
ownership of the site concerned; and, importantly, the paragraphs
referred to make it plain that the adjudicator has a discretion
(“
may”
)
not to follow strict law in doing so. This much is clear when regard
is had to the qualification at the end of s.2(3).
[20]
Despite that broad conferment of powers, there is
an important jurisdictional prerequisite for the exercise of those.
It is
that only an “
affected site”
can be the subject-matter of the enquiry in respect of which the
adjudicator can exercise his powers.
[7]
That is a defined concept; and at its very lowest, it refers to a
site purporting to be occupied by virtue of a permit issued by
the
local authority conferring rights which in the opinion of the
“
secretary concerned”
[8]
are similar to the rights which are held by the holder of a site
permit, certificate, or trading permit.
[21]The
record contains no examination of this issue; but I propose assuming
that in fact the site here concerned was so qualified.
If it were not
so qualified, the entire process may be nullity, and in turn that
would elicit an enquiry as to the consequences
particularly of the
transfer of the property to the first respondent. It may be that that
transfer remains unaffected, but also
unimpeachable.
[9]
[22]Reverting
then to the discretion: Satchwell, J in Phasha touched on it,
[10]
and the way the learned judge described it, is akin I suggest to a
discretion of the second type discussed by the full court in
this
division in Bookworks (Pty) Ltd v Greater Johannesburg Transitional
Metropolitan Council and Another,
[11]
and referred to as a “
discretion
loosely so called”
.
[23]The relevance of this
observation for present purposes is that the power of the appeal body
is not limited to interference only
when the lower body will have
committed a misdirection. If the appeal body considers that it would
have come to a different conclusion
that that of the lower body, it
is entitled to substitute its decision for that of the lower body.
[24]That conclusion fits the
express conference of power upon the appeal adjudicators and the high
court, respectively in s.3(1)
and s.3(6) of the Conversion Act, read
with regulation 5(2)(c).
Reasoning
[25]
Having
set out the factual background, and having identified the legal
framework within which we are to function, it is time now
to apply
our attention to the facts, so as to arrive at the conclusion that we
believe ought to have been arrived at by the appeal
adjudicators.
[26]We start from the vantage
point that neither of the two cousins, not the appellant nor the
first respondent, was the holder
of any site permit or a
certificate, or any permit which conferred rights to them that could
be considered as similar to
the rights that may have been held by the
holder of a site permit or certificate, as envisaged in the
Conversion Act. We have already
recorded that we assume that, on the
other hand, the property concerned here qualified as an “
affected
site”
.
[27]That implies that, at least
so far as our assumption goes, Mrs Winnie Soetmelk was, if not by
reason of the lease agreement
then by virtue of the sale agreement,
the holder of a permit which conferred on her rights similar to the
rights that were held
by the holder of a site permit or a certificate
holder.
[28]But
her position, in life, was in fact and in law considerably stronger
than that. She was the purchaser under an agreement
whereby she was
entitled to demand transfer of ownership against payment of the
purchase price. That agreement also expressly
conferred on her
the right to possession and occupation of the property with effect
from 1 October 1987.
[12]
[29]Next, we reason that when Mrs
Soetmelk died four years later at the end of 1991, the entitlement to
claim transfer of the house
against appropriate tender of
counter-performance formed part of her estate. This conclusion is
different from that of the appeal
adjudicators, who concluded that
the sale agreement was no longer in effect when Mrs Soetmelk died.
They did so on the basis
that she was in material breach of the
agreement for not having paid the purchase price instalments due
under the agreement, and
also for having breached clause 11 whereby
she was oblige to have stayed in the property until the full purchase
price will have
been paid.
[30]But of course the record does
not inform one as to whether Mrs Soetmelk had in fact not paid the
purchase price. It does not
speak of steps taken by the local
authority to cancel the agreement for breach; and there is also no
record of a decision to cancel
and
a
fortiori
no record of a written
communication of such a decision to cancel to Mrs Soetmelk.
[31]One accepts that on so sparse
a record as this it is difficult to draw reliable inferences. But
that difficulty applies to both
sides. And we cannot accept
that the probable inference, there being no facts, is that Mrs
Soetmelk breached the sale agreement;
and even if she had breached
the sale agreement, that the seller had actually resolved to cancel
the agreement, and had actually
conveyed the decision to cancel to
Mrs Soetmelk. After all, while she was alive, one knows that she was
not actually evicted from
the house.
[32]This conclusion then takes
one to the next pillar, which is that the person who is legally
charged with the collection of the
assets of the estate, being the
appellant by virtue of the Letters of Authority, has claimed before
the initial adjudicator that
the house be transferred to the estate.
[33]One obviously accepts that a
substantial passage of time has lapsed between end 1991 when Mrs
Soetmelk passed away, and 29 August
2006, when the Letters of
Authority were issued to the appellant. But weighed against the first
respondent’s position, who
had only been living in the house
for some four years when the enquiry before the adjudicator took
place, all the while during
which Mr Godfrey Soetmelk had also lived
there, it seems that that passage of time is really a neutral factor.
[34]Importantly,
the first respondent did not contend that the fact that he had been
living in the house had conferred on him any
right that was
recognised in the Conversion Act, or any other relevant legislation
or principle of law. To the contrary, it is
the estate of Mrs
Soetmelk that might have relied on the principle expressed in the
adage,
qui prior est tempore potior est
iure
.
[13]
The
provisions of the Conversion Act, specifically s.2(1) and s.2(3), are
in our view more compatible with the notion of the recognition,
obviously in the new form envisaged by the Act, of rights that had
already accrued to a claimant under previous legislative structures.
[35]In their reasoning the appeal
adjudicators accepted that no payments at all had been made in
respect of the purchase price.
This conclusion was the foothold for
their conclusion that Mrs Soetmelk and after her, her executor, had
repudiated the sale agreement.
They then went on to record that it
was common cause that the first respondent had lived in the property
since 2001, has maintained
the property, and has had a consistent,
stable and long association with the property. Juxtaposing these two
positions, they then
conclude that in equity the house should be
awarded to the first respondent.
[36]The
difficulty we have with this reasoning is that, certainly as far as
our record is concerned, there is no warrant for the
conclusion that
no payments on account of the purchase price had been made. The
repudiation conclusion is then unwarranted. It
is true that the
respondent maintained the property, but he was living in it.
[14]
The one person who had in any event outstripped the first
respondent’s tenure in the property by far, was of course Mr
Edward
Soetmelk.
[37]It is true that Mr Edward
Soetmelk is not a claimant for the property, but the principle which
his much longer association with
the property shows up, is that mere
presence in the property does not found an entitlement under the
principles recognised in the
Conversion Act. In our approach
above we have not accepted that the power of the adjudicator under
the Conversion Act, and
similarly the powers of the appeal
adjudicators on appeal to them, was to award houses to people whom in
his or her opinion was
most deserving, thereby applying some
undefined sense of equity.
[38]We have rather approached the
matter on the basis that the power of the adjudicator was to award
houses to people who claimed
an entitlement in law to them, even if
the entitlement in law might not have passed muster, were the law
applied strictly. Put
differently, we have not approached the matter
on the basis that either the adjudicator, or the appeal adjudicators,
or this court,
had a power in equity. We do not believe
the Conversion Act, properly construed, affords such a power.
[39]It follows from the foregoing
that in our view the appellant’s prospects of success on appeal
are good.
Condonation
[40]
The
first respondent made heavy weather of the delays that had been
occasioned by the appellant in the prosecution of the appeal.
There
is of course also the factor that registration of transfer of the
property to the first respondent had already been effected,
and that
that fact ought to have brought some legal certainty. We deal with
this latter aspect first.
[41]The record does not tell when
precisely transfer had taken place. From the affidavit supporting the
first respondent’s
application to set aside the appeal, it
appears that it will have occurred between 15 February 2011 and June
2011. Since the notice
of appeal had to be lodged within 30 days of
knowledge of the appeal adjudicators’ decision, the first
respondent was on
risk at least until mid-March 2011.
[42]Nor
was it argued before us
[15]
that in view of the transfer having taken place, the property can no
longer be transferred to the estate of Mrs Soetmelk. It seems
to us
that if the property ought in the first place to have been
transferred to the estate of Mrs Soetmelk, as the adjudicator
had
found, and if we have the power to direct that that is what the
appeal adjudicators ought to have held, then the subsequent
transfer
to the first respondent is liable to be set aside.
[43]
Two
aspects concerning condonation have been raised on the papers. The
first is the first respondent’s application to set
aside the
appeal, and the second is the appellant’s application for
condonation for the late filing of the record of the
appeal. The
first application was brought on 16 August 2012, based on a founding
affidavit that had been testified to on 20 July
2012. The answering
affidavit came on 10 September 2012, explaining that the record had
since become available. The replying affidavit
was filed on 12
October 2012, and the application to set aside the appeal was then
set down for hearing on 13 March 2013. On that
day it was postponed
for hearing with the substantive appeal. Two weeks later the
appellant’s application for condonation
followed.
[44]In the appellant’s
application an explanation is furnished about the inordinate delays
caused by the fact that the record
had to be obtained not from the
usual Department of Justice contracted sources, but from the Housing
Department. There was
little that the appellant could do short
of obtaining a court order to expedite that process.
[45]There is no doubt that the
appellant could have been more adept in securing the appeal record
and prosecuting the appeal, but
a balance has to be struck between
the first respondent’s prejudice, and the prejudice to be
suffered by the intestate heirs
of the estate of Mrs Winnie
Soetmelk. On consideration, the first respondent’s
position has, at a practical level,
changed little. He was
staying in the house before the appeal process started, and is still
staying there. On the other hand,
there are potential heirs who ought
to inherit the property and their rights will have been prejudiced
without them having been
to blame for any delay.
[46]We would refuse the first
respondent’s application, and grant the appellant’s
application, in each case with an
appropriate costs order. An
appropriate order dealing with the reinstatement of the appeal should
also issue, in view of our reasoning.
Conclusion
[47]In the result, in our view,
the appeal must succeed. We make to following order:
(a)
The
first respondent’s application to set aside the appeal is
dismissed, and the appellant is directed to pay the costs of
that
application.
(b)
The
appellant’s appeal is reinstated.
(c)
The
appellant’s application for condonation for the late filing of
the record of appeal is granted, and the appellant is directed
to pay
the costs of that application.
(d)
The
decision on 15 February 2011 of the appeal adjudication panel
comprising Messrs AY Bhayat, GS Mulder and G Twaise, is set aside,
and there is substituted for that decision the following: ‘The
appeal against the award of adjudicator Mr S.R. Malatji dated
2 June
2010, is dismissed’.
(e)
The
registration of transfer of the immovable property situate at 214
Austin Street, Eden Park, is set aside; and registration of
transfer
of the said property is to be effected to the estate of the late Mrs
Winnie Soetmelk.
WHG van der
Linde
Judge, High
Court
Johannesburg
I
agree.
A Mayet
Acting
Judge, High Court
Johannesburg
For the
appellant: Attorney MD Hlatshwayo
(0724075875)
Hlatshwayo-Mhayise
Inc
15
th
floor Schreiner Chambers
94 Pritchard
Street
Johannesburg
011-3337303
For the first
respondent: Adv. T Steyn
Instructed by Klopper
Jonker Inc
c/o The Document
Exchange
Docex 216
Johannesburg
Ref. Mr E
Ungerer/S1000386
Date argued: 18 April,
2016
Date of judgment:
29 April, 2016
[1]
In the cross-examination of the appellant it was
suggested that this was a fraud, since the boy Godfrey was never
legally adopted.
That was an unfortunate description of what had
transpired. First, the relevant regulatory framework was not before
the tribunal,
and so one does not know whether a biological or
legally adopted child was essential, or whether a child that was
simply in fact
being cared for by the adult applicants for the
housing rights was sufficient. Second, whatever the regulation, one
does not
know what the witness’ bona fide understanding of its
requirement was.
[2]
Precisely what rights were awarded to them was
never examined in the transcript.
[3]
Internal pagination, p5.
[4]
The document itself is not part of the transcript
before us, but was often referred to in the evidence.
[5]
It was not argued on behalf of the first
respondent that registration of transfer immutably rendered him
owner of the property,
and that aspect, particularly the effect of
the fact that in Legator McKenna Inc and Another v Shea and Others
2010 (1) SA 35
(SCA) the Supreme Court of Appeal held that, in our
law, the abstract theory of transfer applies to immovable property,
was not
investigated.
[6]
I have assumed that Eden Park was at all times
such a township.
[7]
Cf. Phasa v Southern Metropolitan Council of
Johannesburg, 2000(2) SA 455 (WLD) at 476C.
[8]
Probably now a reference to the relevant
Provincial MEC.
[9]
This aspect obviously was not argued before us,
the parties assuming no doubt that the jurisdictional issues were
beyond reproach.
[10]
Op cit, 478 C to F.
[11]
1999(4)SA799(W) at 804, 805 per Cloete, J (as he
then was).
[12]
Clause 7, p130.
[13]
Priority in time gives priority in law.
[14]
However, likely not for the period of time
assumed by the appeal adjudicators; see the exposition of the facts
earlier in this
judgment.
[15]
As we have pointed out in a footnote above.