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[2016] ZAGPJHC 116
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Molata v Lakaje and Others (25181/2014) [2016] ZAGPJHC 116 (26 May 2016)
SAFLII
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 25181/2014
DATE:
26 MAY 2016
In
the matter between:
RAPELO
ALFRED
MOLATA
.................................................................................................
Applicant
(RAMPYAPEDI)
And
SEANETT
LAKAJE
....................................................................................................
First
Respondent
THE
EXECUTOR IN THE ESTATE OF
THE
.....................................................
Second
Respondent
LATE
LABAN LAKAJE
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
......................................
Third
Respondent
OF
HOUSING, GAUTENG PROVINCE
THE
MEC FOR THE DEPARTMENT OF
HOUSING,
.......................................
Fourth
Respondent
GAUTENG
PROVINCE
THE
CITY OF
JOHANNESBURG
............................................................................
Fifth
Respondent
METROPOLITAN
MUNICIPALITY
THE
REGISTRAR OF
DEEDS
..................................................................................
Sixth
Respondent
JOHANNESBURG
JUDGMENT
RATSHIBVUMO
AJ
:
1.
The applicant applies through motion
proceedings for an order in the following terms:
1.
“
An order cancelling Title Deed No.
[T4……..], which deed holds property known as ERF [9……]
[M……]
Township, Soweto (“the property”),
currently in the names of Seanet Lakaje and the late Laban Lakaje;
2.
An order directing the Sixth Respondent
(Registrar of Deeds), to cancel Title Deed No. [T4………],
currently registered
over the property known as ERF [9……]
[M……] Township, Soweto, and currently in the names of
Seanet Lakaje
and the late Laban Lakaje;
3.
An order directing the Sixth Respondent
(Registrar of Deeds), to after cancellation, transfer the property
known as ERF [9……]
[M…….] Township,
Soweto, into the estate of the late Molata William Rampyapedi;
4.
Alternatively to paragraph 3 above, an
order that the ownership of the property should revert to its
original owner, the City of
Johannesburg Municipality;
5.
Simultaneously with an order directing the
Third Respondent, the Director General of Housing, Gauteng to hold a
hearing in terms
of section 2 of the Conversion of Certain Rights
into Leasehold or Ownership Act 81 of 1988 for the purpose of
determining
who the rightful claimant in respect of ERF [9……]
[M……] Township is;
6.
An order for costs against any of the
parties opposing this application;
7.
Further and/or alternative relief.”
At
the hearing, the applicant abandoned the relief sought in respect of
paragraph 3 above. He however requested the court to consider
paragraphs 4 and 5 as prayers on their own, as opposed to being
alternative relief.
2.
Background
:
It is common cause that the Applicant is the son to the late William
Molata Rampyapedi (Rampyapedi). Rampyapedi was the occupant
of the
property who held a Residential Permit to occupy (a Permit) issued by
the Department of Non-European Affairs on 18 August
1964.
[1]
The Applicant’s name appears in the same Permit alongside the
names of his siblings who have since predeceased him. The Conversion
of Certain Rights into Leasehold or Ownership Act, no. 81 of 1988
(the Conversion of Certain Rights into Leasehold or Ownership
Act)
empowers the Director General of the Department of Housing to issue
the right of ownership to permit holders to the land in
the
townships.
[2]
3.
On 29 January 2008, Rampyapedi, armed with
a Permit referred to above, joined the queue like many other permit
holders from the
townships across the country. Sadly, when he died in
2009, he had not yet been issued with a title. Seven years later, the
title
deed has still not been issued and this time it appears the
Director General is not going to issue one unless the court
intervenes.
The reason for this, according to the Applicant, is that
the title deed was erroneously issued to the First Respondent and her
deceased husband who did not even have a Permit for that property.
4.
The Applicant was able to trace and locate
the First Respondent at what he believes to be her residential
address being no. [7……..]
[M…….]
Township, Soweto. This is the address where the Notice of Motion was
served by the Sheriff; prompting her
to serve a notice of the
intention to oppose the application. The Notice of Motion was also
served on all the other respondents
including the Third Respondent
who was served on 18 July 2014. The Third Respondent decided not to
oppose this application. For
that reason, the allegation by the
Applicant to the effect that officers in the Housing Department
erroneously issued ownership
rights to a wrong person who did not
have a Permit remains unchallenged.
5.
While
the Conversion of Certain Rights into Leasehold or Ownership Act
empowers the Director General to award the right of ownership,
his
powers are limited in that once awarded, he cannot cancel the title
deed even in circumstances where it may have been awarded
to a wrong
person by error. This is because according to the
Deeds Registries
Act, no. 47 of 1937
, a title deed can only be cancelled by a court
order.
[3]
Once cancelled, the
title deed cannot just be awarded to the Applicant, unless he was the
previous holder of the same. This is
because
sec 6
(2) of the
Deeds
Registries Act provides
,
“
Upon
the cancellation of any deed conferring or conveying title to land or
any real right in land other than a mortgage bond as
provided for in
subsection (1), the deed under which the land or such real right in
land was held immediately prior to the registration
of the deed which
is cancelled, shall be revived to the extent of such cancellation,
and the registrar shall cancel the relevant
endorsement thereon
evidencing the registration of the cancelled deed.”
This
may explain why the Applicant abandoned the relief sought in
paragraph no. 3 of the Notice of Motion.
6.
The First Respondent’s version:
The position adopted by the First Respondent is
rather bizarre. Viewed from the totality of her answering affidavit,
it appears
she is not opposed to the Applicant’s claim to the
right of ownership to the property. All that she avers is that she
may
have a reason to oppose the application depending on information
she may have from the Department of Housing. For now she does not
have such reasons and she is not even certain if she would have them
once she gets access to the information as stipulated above.
It would
appear from her approach that this application prompted her into an
investigation. While the First Respondent does not
lay any claim to
the property ownership, she avers that she resides at no. [9…..]
[M……], Soweto. I will revert
to this allegation later.
7.
As
far back as July 2014, the First Respondent was well aware of this
application after the Sheriff served her with the Notice of
Motion.
She however only initiated her court application aimed at obtaining
all the documentation held by the Department of Housing
pertaining to
the property on 30 September 2015.
[4]
There is no explanation why this was delayed given the fact that a
letter from her attorney dated 19 November 2014 indicated that
she
had plans to request access to these records.
[5]
It however appears as though her initiatives will not help this case
at all given the delay in approaching the courts for
this relief.
Moreover, an order giving the First Respondent access to requested
records was given on 13 October 2015. However the
court order which
was authorised on a Draft Order prepared by the First Respondent
refers to documents in respect of a different
property, to wit, House
no. [4…..] [O……] [E…….],
Johannesburg. Counsel for the First Respondent
conceded that this was
an error. As of the date of hearing, nothing had been done to correct
this error by the First Respondent.
As a result, the court was not
surprised to learn that the First Respondent is yet to receive the
said records.
8.
It is however surprising that while the
Applicant opted to be patient and wait for all the First Respondent’s
errors to be
corrected despite the passage of time the First
Respondent opted not to make use of this patience. The First
Respondent went on
to set down this application for hearing, well
knowing that she is yet to receive the records that may or may not
give her a reason
to oppose the application. The court can only
interpret this as a concession on her part that the court should
decide this application
based only on the documents provided by the
Applicant and that she should not be expected to furnish any.
Otherwise the court fails
to understand why she would set this
application for hearing. To summon an enemy army to battle while one
is not prepared for it
may well be interpreted as an act of suicide.
9.
Disputed
fact
:
The Applicant claims to be residing at no. [9….] [M…..]
Soweto which is the physical address where the property
is located.
The First Respondent also claims that she resides there, a fact
denied by the Applicant. This appears to be the only
fact in dispute.
Given the Plascon-Evans test, I am convinced that the court can still
find for the Applicant since the nature
of a dispute does not affect
the case for the Applicant.
[6]
Where in proceedings on notice of motion disputes of fact have arisen
on the affidavits, a final order, whether it be an interdict
or some
other form of relief may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such
an order. In certain instances the denial by respondent
of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona
fide
dispute
of fact. Residing at a particular address does not grant any person
right of ownership to property. It is not even
an aspect the
Director-General is empowered to consider when awarding such rights
in terms of the Conversion of Certain Rights
into Leasehold or
Ownership Act; but being holder of a Permit.
10.
One would have expected that the First
Respondent would claim her entitlement to the ownership of the
property or the title deed,
and maybe ask for documentation from the
Third Respondent to substantiate her claim if she does not have them,
but she does not.
Even if hypothetically speaking, the First
Respondent had a reason to lay a claim to the property, the court
would have to consider
the prejudice she could suffer if the
application is granted. If the application is granted, the door would
not be closed to the
First Respondent since she would still have a
right to submit her claim with the Third Respondent when an inquiry
is conducted.
If she is the rightful claimant, the ownership may
still be awarded to her.
11.
The
Third Respondent’s authority to award ownership of the property
in terms of the Conversion of Certain Rights into Leasehold
or
Ownership Act is subject to him conducting an inquiry.
[7]
In conducting an inquiry, the Third Respondent is obliged to consider
all the claims lodged against the property and also notify
the
occupants thereof. Any award that may have been done without an
inquiry that takes into consideration all the claims and without
a
notification to the occupants of the property would not be an inquiry
as envisaged by sec 2 of the Conversion of Certain Rights
into
Leasehold or Ownership Act, and it would have to be set aside.
[8]
12.
Making a false statement under oath:
One last aspect deserves the court’s
attention. Whereas the disputed fact does not take the matter any
further in respect
of this application, the court is concerned over
the two statements made under oath, one by the Applicant and another
by the First
Respondent. They both claim they reside at no. [9…….]
[M……], Soweto. The Applicant disputes that the
First
Respondent resides at that address. Obviously, one of them is not
telling the truth. The court finds it shocking that the
deponent to
an affidavit would have very little regard to the import of giving
evidence under oath to the extent of lying about
his or her
residential address, something that can be easily disproved. This is
a deliberate move to mislead the court and it borders
along defeating
the ends of justice. Unless punitive steps are taken when a crime of
perjury is committed, this practice may continue
unabated.
13.
For the reasons stated above, the following
order is made:
13.1
The
Registrar of Deeds (Johannesburg) is ordered to cancel Title Deed No.
[T4………], which deed holds property
known as ERF
[9…..] [M…….] Township, Soweto, and cancel all
rights accorded to the First Respondent by virtue
of the Title Deed;
13.2
The
Director-General for the Department of Housing, Gauteng Province, is
directed to hold an inquiry in respect of Erf [9……],
[M……] Township, Soweto, in terms of section 2 of the
Conversion of Certain Rights into Leasehold or Ownership Act
81 of
1988, for purposes of determining who the rightful claimant in
respect of Erf [9……], [M…….] Township,
Soweto is.
13.3
The
First Respondent is ordered to pay the costs of application.
13.4
The
Registrar of this court is requested to make the copy of this
judgment and the affidavits presented by the Applicant and by
the
First Respondent to the Station Commissioner – Johannesburg
Central Police Station;
(i)
for investigations if a crime may have been
committed in deposing the said affidavits by the respective
deponents;
(ii)
to report to the Director of Public
Prosecutions – South Gauteng of the outcome of the said
investigations within the period
of six months from the date of this
order;
(iii)
and for the Director of Public Prosecutions
– South Gauteng to decide if anyone should therefore be
prosecuted for the crime
of perjury or any other crime that the said
investigations may uncover.
13.5
Copies
of this judgment should also be sent to the Director of Public
Prosecutions – South Gauteng, the Director-General of
the
Department of Housing – Gauteng and the Registrar of Deeds –
Johannesburg.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard: 16 May 2016
Judgment
Delivered: 26 May 2016
For the
Applicant: Adv. L Memela
Instructed by:
Gcwensa Attorneys
Johannesburg
For
the Respondent: Adv. RG Cohen
Instructed
by: Glynnis Cohen Attorneys
Johannesburg
[1]
See
Annexure D, p. 23 of the Bundle.
[2]
Sec
2 (4) of the
Conversion
of Certain Rights into Leasehold or Ownership Act
was
amended by Act 108 of 1993 to provide:
(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
formalized township for which a township
register has been opened, ownership in respect of the site
concerned.
[3]
Sec
6 (1) of Act 47 of 1937 provides,
“
Save
as is otherwise provided in this Act or in any other law no
registered deed of grant, deed of transfer, certificate of title
or
other deed conferring or conveying title to land, or any real right
in land other than a mortgage bond, and no cession of
any registered
bond not made as security, shall be cancelled by a registrar except
upon an order of Court.”
[4]
See
case no. 2015/34306 of the Gauteng Local Division –
Johannesburg.
[5]
See
a letter from her attorneys marked B, p. 83 of the Bundle.
[6]
Plascon-Evans
Paints LTD v Van Rebeeck Paints (PTY) LTD
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at p. 634H.
[7]
See
section 2 (
supra
)
[8]
Ndzimande
and Another v Ndzimande and Others
(24490/12)
[2012] ZAGPJHC 223 (11 September 2012) and
Khuzwayo
v Estate of the late Masilela
(28/10)
[2010]
ZASCA 167
(1 December 2010).