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[2017] ZAGPJHC 366
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Maimela v Maimela and Others (13282/16) [2017] ZAGPJHC 366 (24 August 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
number: 13282/16
Not
reportable
Not
of interest to other judges
Revised.
24/8/2017
In
the matter between:
MAIMELA,
MOKGADI
ANGELINA
1
st
Applicant
and
MAIMELA,
RICHARD
1
st
Respondent
MAIMELA,
RAISIBE
BETTY
2
nd
Respondent
DIRECTOR-
GENERAL, HUMAN SETTLEMENTS
3rd
Respondent
DEPARTMENT,
GAUTENG PROVINCE
MEC
OF HUMAN SETTLEMENTS DEPARTMENT,
GAUTENG
PROVINCE
4th
Respondent
CITY
OF
JOHANNESBURG
5th
Respondent
METROPOLITAN
MUNICIPALITY
THE
REGISTRAR OF DEEDS,
JOHANNESBURG
6th
Respondent
JUDGMENT
R.
FRANCIS, AJ:
[1]
The applicant seeks a declaratory order to cancel the names
registered in the title deed of the property claimed to be a family
house. The relief is claimed on the basis that the property was
registered into the names of the first and second respondents,
her
brother and his wife, without the required process being followed to
establish ownership and succession rights. As this house
is situated
in a black urban area the process to effect transfer of these
properties from the status of permit holder to leasehold
or ownership
is regulated by the
Conversion
of Certain Rights into Leasehold or Ownership Act 81 of 1988
(Conversion Act) as amended in 1993.
[2]
The applicant’s and first respondent’s mother (the
deceased) was a residential permit holder in the property in
terms of
Regulation 7 of Chapter 2 of the Regulations Governing the Control
and Supervision of Urban Black Residential Area and
Relevant Matters
of GN 1036 dated 14 June 1968. The applicant is also listed as an
occupant on the residential permit dated 2 May
1985. In 1995 the
deceased was invited to apply for ownership of the property. She
filled out the required forms and awaited the
outcome of her
application. On 31 January 1996 she died without knowing the outcome
of her application.
[3]
In 2014 the applicant became aware for the first time that the first
and second respondents hold a title deed of the property
of the
deceased. The applicant maintains that the title deed should never
have been issued to the first and second respondents
as the deceased
died intestate and was still awaiting the outcome of her application
for conversion from permit holder to ownership.
The deceased estate
has not been finally wound up.
[4]
A lodger’s permit was issued in 1995 in the names of the first
and second respondents in terms of the provisions of Regulation
20 of
Chapter 2 of the Governing Regulations. The first and second
respondent enjoyed a right of occupancy on this property for
a period
of 21 years where they lived with their children. The first and
second respondents were married in community of property
and are
currently in the process of a divorce. This application is opposed by
the second respondent only.
[5]
The second respondent alleges that the deceased had intended that the
said property be left to her and the first respondent.
The deceased
had indicated her intention when she instructed the first and second
respondents to come back to live in the property
in question and to
take over ownership. She intended giving ownership of the property in
Modjadjiskloof to the applicant and it
was for that reason that the
applicant was not included in the lodger’s permit. The
entire allegation is disputed by
the applicant as well as by the
first respondent. At the hearing counsel for the second respondent,
Mr Du Plessis, confirmed that
no proof of this allegation can be
submitted by the second respondent.
[6]
In addition the first respondent has attested to an affidavit
confirming that the replying affidavit of the applicant is true
and
correct and that he never applied for the title deed of the house in
question and was surprised when he first saw the title
deed in his
name. He further states that his deceased mother never gave him (the
first respondent) and the second respondent permission
to take over
the ownership of the house. Mr Du Plessis raised technical objections
to the first respondent’s affidavit in
that the commissioner of
oaths dated the affidavit 25
th
July 2016 and date stamped it 21 July 2016. In the interests of
justice the deponent was given the opportunity to provide a
supplementary
affidavit correcting the mistake. A confirmatory
affidavit dated 16
th
August 2017 was duly provided. As a result no dispute remains in this
hearing in respect of the deceased’s intention.
[7]
I had occasion to serve on an almost identical matter
in
Khwashaba v Ratshitanga
2016
JDR 0776 (GJ), the only difference being that the property, a family
house was sold after being transferred into the names
of the holders
of occupation. Since then I have not changed my views on the
upgrading of the property from permit holder to ownership
which is
governed in this instance by the Conversion Act.
[8] The intention of the
Conversion Act was to formalise and confer leasehold or full
ownership upon the beneficiaries. In terms
of Section 2 of this Act
an inquiry had to be conducted prior to the rights of leasehold or
ownership was granted.
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.
[9] The conversion Act
must be further read with sections 24A and 24B of the Gauteng Housing
Act No 6 of 1998. (Gauteng Housing
Act) 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.
[10]
The Gauteng Housing Act further places a duty upon the MEC to conduct
an enquiry in disputed cases to determine lawful beneficiaries.
If
the upgrading from residential permit holder rights to ownership took
place automatically, the basis of the transfer in the
names of the
first and the second respondents occurred without a lawful basis and
in the interests of justice it therefore cannot
be ignored and it
should be set aside.
[11]
In reference to 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 112 of 1991(Upgrading 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.
[12]
In considering the intention in the Conversion Act read with the
Upgrading Act, Jajbhay, J in
Nzimande
v Nzimande & Another
2005
(1) SA 83
(W), 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
).
[13]
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 permit hold and ownership.
[14]
In the present matter as well the first respondent 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. It is not in dispute that the first respondent’s
and applicant’s mother (the deceased) had applied for ownership
in 1995. As a result no enquiry was held to establish the
beneficiaries of the property in question and it should be done to
resolve the arising dispute.
[15]
The only issue left relates to costs. The applicant requests costs in
the event that the application is opposed. Counsel for
the second
respondent submitted that on the basis that the applicant abandoned
her claim on prayer 3 her application for costs
on this aspect should
not succeed. It is acknowledged by both parties that prayer 3 from
the commencement of the matter prayed
for in the alternative. I
therefore see no reason why costs should not follow the cause. The
successful party should be entitled
to the costs of this application.
[16] In the result it is
hereby ordered as follows:
16.1
The Title Deed No: T 70021/ 1998, which deed holds property known as
ERF […] Meadowland Township, Soweto, Gauteng, which
is
currently in the names of both First and Second Respondents, RICHARD
MAIMELA and RAISIBE BETTY MAIMELA, is hereby cancelled.
16.2
The Sixth Respondent (Registrar of Deeds, Johannesburg) is ordered to
cancel Title Deed No: T 70021/1998 which deed holds property
known as
ERF […], Meadowlands Township, Soweto, Gauteng which is
currently in the names of the First and Second Respondents,
RICHARD
MAIMELA and RAISIBE BETTY MAIMELA.
16.3
The Third and Fourth Respondents are ordered to ensure that an
enquiry is conducted in respect of the property known as ERF
[…]
Meadowlands Township, Soweto, Gauteng in accordance with and in terms
of Section 2 of Act 81 or in terms of the procedures
adopted for the
resolution of housing disputes in the transfer of residential
properties.
16.4
The Sixth respondent revert the ownership of the house known as ERF
[…], Meadowlands Township, Soweto, Gauteng to the
Gauteng
Provincial Department of Housing pending the decision in accordance
with the enquiry as envisaged in 16.3 above.
16.5
The respondent is to pay the costs of this application.
-------------------------------
R.
FRANCIS, AJ
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Counsel
for the Applicant: Adv L Memela 011 333 7800
Instructed
by: Attorneys
Counsel
for the 2
nd
Respondent: Adv C. A Du Plessis 011 775
5800
Instructed
by: Attorneys
Date
of Hearing: 15 August 2017
Date
of Judgment: 24 August 2017