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[2019] ZAGPJHC 192
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Tshabalala and Others v Tshabalala and Others (38827/2016) [2019] ZAGPJHC 192 (28 June 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 38827/2016
In
the matter between:
MARTHA
AZLINAH TSHABALALA
First
Applicant
MOSA
EMILY TSHABALALA
Second
Applicant
THANDI
EMILY TSHABALALA
Third
Applicant
SONTO
THANDIWE TSHABALALA
Fourth
Applicant
ESTHER
RAMANANTSO
Fifth
Applicant
EDWARD
RAMANANTSO
Sixth
Applicant
JULIA
RAMANANTSO
Seventh
Applicant
MICHAEL
RAMANANTSO
Eighth
Applicant
DOROTHY
NKOSINGIPHILE RAMANANTSO
Ninth
Applicant
NOMPUMELELO
THANGO
Tenth
Applicant
and
DUMAZILE
RACHEL TSHABALALA
First
Respondent
DUMAZILE
RACHEL TSHABALALA N.O.
Second
Respondent
THE
MASTER OF THE HIGH COURT,
JOHANNESBURG
Third
Respondent
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
HOUSING, GAUTENG PROVINCE
Fourth
Respondent
THE
MEC FOR THE DEPARTMENT OF HOUSING,
GAUTENG
PROVINCE
Fifth
Respondent
THE
DEPARTMENT OF HOUSING
Sixth
Respondent
THE
REGISTRAR OF DEEDS, JOHANNESBURG
Seventh
Respondent
JUDGMENT
MATOJANE J
Introduction
[1]
The applicants in this
matter seek an order cancelling Title Deed Number TL1146/1998 in
terms of which the immovable property known
as Erf […] Mofolo
South Township (the ‘property’) is held by the first
respondent and her late husband, Mr Fana
Daniel Tshabalala. Further,
the applicants seek the following relief: that the decision of the
fourth to
sixth
respondents in allocating the property to the first respondent and
the late Fana Daniel Tshabalala be reviewed and set aside;
for an
order that the matter be referred back to the fourth and sixth
respondents for adjudication in terms of section 2 of the
Conversion
of Certain Rights into Leasehold or Ownership Act 81 of 1988 (‘the
Act’) in order to determine the rightful
claimant to the
property;
The
parties
[2]
The first respondent
was married in community of property to late Fana Daniel Tshabalala.
The first and second applicants are the
sisters of the late Fana
Daniel Tshabalala. The fourth to the eighth applicants are the
children of the late Tshimakatso Ramanantso
who was the sister of the
first and second applicant. The ninth and tenth applicants are the
children of the other two siblings
of the first and second
applicants.
[3]
The application is
opposed by the first respondent, who avers that the property was
lawfully transferred into her name and that
of her late husband in
terms of the provisions of section 5 of the Act. The first respondent
currently resides on the property
and has improved the property by
building two additional rooms and a garage.
Background
facts
[4]
Richard Tshabalala, the
late father of the first and second applicants, was issued with a
regulation 8 certificate of occupation
of the property by the then
West Rand Administration Board (‘Board’). He had seven
children, all of whom were named
on the residential permit. In 1980,
Richard Tshabalala passed away intestate. His rights of occupation of
the property was ceded
to his wife, Manana Paulina Tshabalala.
[5]
Manana Paulina
Tshabalala was mother to the first and second applicants and the
grandmother of the other applicants. She accepted
the cession and
transfer of the deceased’s rights, title and interest in the
Certificate of Occupation on 2 October 1985.
The Board consented to
her substitution as holder of the Certificate of Occupation in
respect of the property on the same day.
The Certificate of
Occupation was issued to her by the Soweto City Council on 3 October
1985.
[6]
On 30 July 1996, the
late Manana Paulina Tshabalala ceded all her rights and interest in
the property to her son, the late Fana
Daniel Tshabalala, who was
married to the first respondent in community of property. Her eldest
son, Elias Tshabalala, the father
of the third applicant, signed the
deed of cession as a witness, as did the second applicant, Emily
Tshabalala.
[7]
The property was
registered in the names of the first respondent and the late Fana
Daniel Tshabalala on 9 January 1998 in terms
of s 5 of the Act.
[8]
The applicants aver
that Manana Paulina Tshabalala never ceded her rights and interest in
the property to the late Fana Daniel Tshabalala.
They state that
Manana Paulina Tshabalala executed a will in which she bequeathed the
property to all her children in equal shares.
They state that the
first respondent and her husband obtained ownership of the property
without the knowledge of the applicants,
who are the testate
heirs of the estate of Manana Paulina Tshabalala.
[9]
The applicants have
attached to the founding affidavit a copy of a document which
purports to be the Last Will and Testament of
Manana Paulina
Tshabalala, dated 1 August 1999, The deponent to the founding
affidavit, who is the first applicant, states that
the will was in
the possession of their late brother, Elias Tshabalala, who did not
deliver it to the Master of the High Court.
The applicants are unable
to show that the estate of Manana Paulina Tshabalala was reported to
the Master. The first applicant
states further that she did not see
the will herself, but was told by her mother that the property
belongs to all her children.
The
issues
The
will
[10]
I first deal with the
copy of the document of the purported will that the applicants seek
to rely on.
Section 8(1)
of the
Administration of Estates Act
66 of 1965
provides that:
‘
Any
person who has any document being or purporting to be a will in his
possession at the time of or at any time after the death
of any
person who executed such document, shall, as soon as the death comes
to his knowledge, transmit or deliver such document
to the Master.’
[11]
The
Master cannot accept a copy of a will. If the original will is lost
or destroyed and a copy is available, an application to
court will be
necessary to have the copy declared to be a valid will. If there is
no original will available, the estate devolves
according to the
Intestate Succession Act 81 of 1987
. The applicants have not
delivered the original will to the Master, nor have they applied to
court for the validity of the copy
attached to the founding affidavit
to be determined by a Court.
[1]
Accordingly,
no reliance can be placed on the purported will of the late Manana
Paulina Tshabalala.
[12]
I turn now to the
second issue, namely, whether the late Manana Paulina Tshabalala
ceded the property to the late Fana Daniel Tshabalala.
As I shall
illustrate, Manana Paulina Tshabalala wanted to divest herself of her
rights in the property. She executed a deed of
cession which was in
the form of an affidavit on 30 July 1996. The deed of cession is
contained in a standard form document and
bears the official stamp of
the West Rand Provincial Administration. It records as follows:
‘
I,
the undersigned Manana Paulina Tshabalala identity number […]3
and holder of Certificate of Occupation dated 3 October
1985 issued
to me by the Soweto City Council in respect of the property situated
at […] Mofolo South do hereby cede all
my rights and interest
over the property […] Mofolo South to Fana Daniel Tshabalala
identity number […]7. I have
no objection to the title being
registered directly in his name.’
[13]
The
deed of cession was signed in the presence of two witness, one of
whom is the cedent’s eldest son, the late Elias Tshabalala.
This constituted an out-and-out cession, which means that the cedent,
Manana Paulina Tshabalala, was completely divested of her
rights in
respect of the property.
[2]
In
consequence, the rights to the property vested in the cessionary, the
late Fana Daniel Tshabalala and formed part of his joint
marital
estate.
[14]
The
cedent, having once ceded the right, is precluded from ceding it to a
second cessionary.
[3]
In this
matter, the late Manana Paulina Tshabalala is precluded from
bequeathing her rights in respect of the property in her will.
Therefore, even if the copy of Manana Paulina Tshabalala’s will
was recognised as valid by a court, the applicants’
difficulty
lies in the fact that the testator had already divested herself of
her rights. Any subsequent purported cession by a
cedent in respect
of a right would have no effect, and would not confer any rights on
the second cessionary or cessionaries.
[4]
The
Conversion of Certain Rights into Leasehold or Ownership Act
[15]
The Act came into
operation 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 a leasehold or ownership.
[16]
The Act was amended in
1993 to provide, among other things, for the conversion of site
permits (or other rights in land) into ownership
where the affected
site was situated in a formalised township – which the property
in this case was. Section 4 of the Act
provides for the
Director-General to declare a person who has met certain requirements
to have been granted ownership of the property
concerned, and s 5
provides for a transfer of property into the name of such a person
once a declaration has been made.
[17]
Before a declaration
can be made, however, the Director-General is required, under s
2
of the Act, to conduct an inquiry into the affected site and the
identity of the occupier of the relevant site (in accordance
with the
records of the local authority). The section sets out in detail the
inquiries to be made by the Director-General and the
steps to be
followed. What has to be established is the identity of the person
who is entitled to a site and the rights that should
be conferred on
him or her. The section requires the Director-General to determine
who to declare as the owner of the site in question,
and transfer
follows.
[18]
The applicants contend
that the first respondent and the late Fana Daniel Tshabalala
obtained title to the property by fraudulent
and unfair means in that
they failed to disclose to the Department of Housing of the
applicants’ interest in the property.
[19]
The first respondent
avers that an inquiry was conducted by the Director-General in
respect of the site. After that, a declaration
was made by the
Director-General in terms of s 4(1) of the Act. The property was
subsequently transferred into the names of the
first and second
respondents in terms of s 5 of the Act, as is evidenced by the title
deed.
[20]
The applicants also
contend that the late Fana Daniel Tshabalala stated in a letter that
he never intended to own the property and
that he did not know how
his wife acquired joint ownership of the property. They further
contend that he executed a will in which
he bequeathed the property
to his siblings and to the descendants of his predeceased siblings.
The first respondent, being the
surviving spouse of Fana Daniel
Tshabalala, disputes the authenticity of the letter, as well as the
purported will, which she states
was never submitted to the Master of
the High Court.
[21]
The disputes of fact
raised in this matter, if any, must be resolved in favour of the
first and second respondents according to
the rule in
Plascon-Evans
rule.
[22]
In the result, I
conclude that the applicants have not made out a case for the relief
which they claimed.
Order
1.
The application is
dismissed with costs.
_____________________________
K
E MATOJANE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date of hearing: 18 June
2019
Date of judgment: 28 June
2019
Appearances:
Counsel for the
Applicant: Mr M Motaung
Instructing Attorneys:
Legal Aid SA
Counsel for the 1
st
& 2
nd
Respondents: Mr Gladwell Ngqase
Instructing Attorneys:
Ngqase Attorneys
[1]
Section 2(3)
of the
Wills Act 7 of 1953
.
[2]
This may be
distinguished from cession
in
securitatem debitii
.
See Grobler
v Oosthuizen 2009 (5) SA 500 (SCA).
[3]
LAWSA
‘Cession’ Vol.3 3 ed at 171-174.
[4]
Ibid.