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[2020] ZAGPJHC 404
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Ndaba v Thonga and Others (18674/2019) [2020] ZAGPJHC 404 (23 November 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 18674/2019
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
Date: 23/11/2020
In the matter between:
THOBILE RONALD
NDABA
APPLICANT
And
ZWELIBANGO LAWRICH THONGA
1
ST
RESPONDENT
THE REGISTRAR OF DEEDS
JOHANNESBURG
2
ND
RESPONDENT
THE DIRECTOR GENERAL- GAUTENG HOUSING
PROVINCE
3
RD
RESPONDENT
THE MEC FOR GAUTENG DEPARTMENT,
HOUSING
4
TH
RESPONDENT
JUDGMENT
Vukeya
AJ
Introduction
[1]
In this application, the applicant prays for an order against the
respondents as follows:
[1.1] For the second respondent to
cancel the deed of transfer in respect of property situated at Erf
2039 Jabulani Township, Soweto
Gauteng Province;
[1.2] That the third respondent
conducts an inquiry in terms of the provisions of section 2 of the
Conversion of Certain Rights
and Leasehold or Ownership Act 81 of
1988 for purpose of determining the rightful claimants of the above
property; and;
[1.3] For the first respondent to pay
the costs of this application.
[2]
The second, third and fourth
respondents did not oppose the application and will be bound
by the
order of this court. When the application was heard the court granted
condonation for the late filing of the answering affidavit
and
replying affidavits because there was no prejudice to any of the
parties.
[3]
The following facts are either
common cause or they have not been placed in dispute by
the parties:
[3.1]
the property in question was the subject of a ‘permit to
occupy’ issued to Maud
Tetiwe Somdaka, the applicant’s
grandmother who was also the first respondent’s mother-in-law;
[3.2]
the permit to occupy was later issued to the first respondent’s
wife and the first respondent
after Ms Somdaka’s passing on;
[3.3]
Rights of ownership were transferred in1999 to the first respondent
and his wife Catherine
(the applicant’s mother) in terms of the
Upgrading of Land Tenure Rights Act 112 of
1991
Background
[4]
Ms Maud Tetiwe Somdaka was
issued with a permit to occupy the above named property during
1966
and she occupied it with her children, namely, Zingiswa Catherine
Ndaba; Thembisa Euginia Ndaba; Nomsa Ndaba; and Ntsikelelo
Ndaba.
During December 1977 the applicant’s mother, Zingiswa Catherine
Ndaba, married the 1
st
respondent in community of property
and in 1979 the 1
st
respondent moved in with his wife’s
family in the property in question. The applicant’s grandmother
Ms Somdaka passed
on during May 1983 and according to the 1
st
respondent a permit to occupy the house in Jabulani was issued to him
during November 1983.
[5]
The 1
st
respondent
got a “Transnet” house in Protea North in 1986 and states
that the applicant’s mother took the applicant
and his two
siblings and moved in with him in the “Transnet”
property. The “Transnet” property was transferred
in the
names of the 1
st
respondent and his wife during June 1991.
[6]
During 1994 Zingiswa Catherine
Thonga (nee Ndaba) passed away. The leasehold rights to
the property
in question (at Jabulani Township) were transferred into the names of
the 1
st
respondent and the status was later upgraded to
ownership. The applicant contends that the 2
nd
respondent
proceeded to transfer ownership to the 1
st
respondent without holding an inquiry in terms of section 2 of Act 81
of 1988 in that none of the family members were called to
attend a
proper inquiry before the said property was transferred into the 2
nd
respondent’s names.
[7]
It is the version of the
applicant that when they visited the Housing Offices in Zola,
Soweto,
they discovered that the 1
st
respondent had alleged in the
papers that the applicant and all the other members of the family had
died and according to the applicant
this information was also
confirmed by the Gauteng Provincial Office. The applicant further
alleges that during April 2018 when
he visited the Zola office to
obtain documents to pursue legal action against the 1
st
respondent he discovered that the documents were no longer in the
file. It is the version of the applicant that apart from
the
property in question, the 1
st
respondent owns the house
situated in Protea North (The Transnet House) and avers that in terms
of the Gauteng Housing Act, he
is not allowed to benefit from the
housing scheme when he already owns property.
[8]
According to the applicant the
1
st
respondent misrepresented himself to the Zola Housing
Office by alleging that all the members of the family had passed on
and had
the property transferred into his names. The 1
st
respondent disputes this averment and alleges that before the right
to occupy status was converted to ownership status, he was
called to
a hearing in which it was inquired from him who was residing at the
property in Jabulani. He alleges to have reported
that Cynthia (his
step-daughter) and Lawrence (his son) were residing at the property.
When asked what the status of Ms Maud Somdaka
and Zingiswa his wife
was; he confirmed that they had passed away. He stated in his
answering affidavit that according to him an
inquiry was held and
during this inquiry he answered questions to the best of his
knowledge.
Issues
for determination
[9]
The following issues are for
determination in this application:
[9.1]
Whether the transfer of the property in issue is valid if done
without an inquiry in terms
of section 2 of Act 81 of 1988;
[9.2]
Whether cancellation and reversal of the deed of transfer should be
ordered to allow an inquiry
in terms of section 2 of Act 81 of 1988
to be held;
A
brief history of land ownership in SA before 1994
[10]
Before 1910 land would be registered in the name
of the Secretary of Native Affairs to entitle Africans
to occupy and
use it. In 1913 The Native Land Act was promulgated which prohibited
Africans from owning land and only a few black
people could own
certain designated land. The purpose of the Native Land Act was to
deprive black people of their freedom to acquire
more land in their
own right and formalised limitations on black land ownership leaving
black people with very little farming land
and providing a big
portion of land to the white community.
[11]
The Native Urban Areas Act 21 of 1923 was
promulgated to control the movement and influx of black
people in
urban areas and brought about the establishment of townships for
black people. This law prohibited black people from
acquiring land
and residing in urban areas occupied by white people. Because of the
large number of people who left rural areas
to work in the cities,
informal settlements were created and the then government was forced
to build houses in townships which
would be occupied on rental by
township dwellers.
Black land ownership was
not allowed in the urban township areas and the people were only
allowed to possess site permits, residential
permits and certificates
of occupation granted by local authorities.
[12]
The Group Areas Act came into being in 1950 and it
created an even bigger gap between the different racial
groups.
Separate residential areas were created and black people in the
so-called townships were still not allowed to own immovable
property
but had to obtain permits and rent the houses they resided in.
Others, as early as 1978, were issued with permits
granting them
occupational rights to the houses without any rights of ownership to
the land on which the houses were built. These
permits were granted
in terms of Regulations governing the Control and Supervision of an
Urban Black Residential Area and Relevant
Matters of 1968. Regulation
7 was specifically for people renting a dwelling from a local
authority for residential purposes.
[13]
A selected few black people were granted leasehold
rights to the houses in terms of the Black Communities
Act 4 of 1984
which came into operation in 1986 provided that the land had been
surveyed and the general plan registered
.
This Act was flawed as it took the local authorities a lot of time to
open town registers in terms of the
Deeds Registries Act No 47 of
1937
.
[14]
In 1989 the Conversion of Certain Rights into
Leasehold or Ownership Act 81 of 1988 came into operation
to allow
for the conversion of certain rights like occupational and leasehold
rights into the right of ownership.
When
the Upgrading of Land Tenure Rights Act 112 of 1991 was promulgated
it meant that all registered leaseholds were automatically
converted
into ownership and the Registrar of Deeds endorsed these leaseholds
into ownership. The registrar would take the lease
agreements and
confirm the leaseholder as the owner. The holder of the leasehold
could then apply for a title deed to be issued
in respect of that
property in the holder’s name.
[15]
After ownership rights were conferred upon the old
generation of occupiers a new challenge manifested itself.
As the old
generation of land owners passed on, a new generation of
beneficiaries or owners, as the case may be, took over. In
some
families when the permit holder or owner passed on they appointed the
next person to become the new owner and in some they
preferred to
keep the property as a “family house”.
The
Law
[16]
The Conversion of Certain Rights into Leasehold or
Ownership Act 81 of 1988 (herein after referred to as
“The
Act”) was legislated and commenced on 1 January 1989; it was
however amended in 1993 to regulate the conversion
of use and
occupation permits and various rights in land, into ownership
particularly in townships. The whole purpose of the Act
was to
formalise and confer leasehold or full ownership upon the
beneficiaries.
[17]
In terms of this Act and specifically section 2 a
n
inquiry as to rights of leasehold has to be conducted. The section
reads as follows:-
(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.
The Review Process
[18]
Ms Maud Somdaka had already passed on when the
Convertion Act came into operation and the respondent and
his wife
were granted occupational rights to the property here in question. It
is the conversion of the second respondent’s
rights from
occupational rights to ownership that brings about the application in
consideration.
[19] The respondent
submits that the applicant has followed an incorrect procedure and
process in bringing this
application and that the applicant should
have actually sought a review of the decision to transfer the
property into the names
of the first respondent. Counsel for the
first respondent referred the court to the case of
Nzimande v
Nzimande and another
2005 (1) SA 83
(WLD)
at
paragraphs [48] and [49] at 97A and C wherein the Judge referred to
the decision in
Oudekraal Estates Pty Ltd v Cape Town and others
2004 (6) SA222 (SCA)
in which it was held that
where any legal act depends for its validity upon some official or
administrative prior act, such as a
certification or an adjudication,
then, if one wishes to attack the legal act itself for having been
unlawfully procured or committed,
one is obliged first to have the
administrative act upon which its validity depends set aside on
review, and one cannot simply
ask a court to declare the legal act
void or invalid without reviewing and setting aside the underlying
administrative act.
[20] In order to
countervail the first respondent’s argument the applicant
relied on the case of
Rahube v Rahube
2019 (1) BCLR 125
(CC)
to show that it was not necessary to bring an application
for review of the decision to transfer the property into the first
respondent’s
name because it was not an administrative action.
In the above case
(Rahube)
the court stated as follows in
paragraph 54:
“
We are
not convinced that section 2(1) of the Upgrading Act violates section
33 of the Constitution. It is clear that the upgrading
takes place
automatically and therefore by operation of law. Thus, no decision is
taken by an administrator and no administrative
action has occurred.
The legislative functions of Parliament are explicitly excluded from
the definition of administrative action
by section 1(b) (dd) of the
Promotion of Administrative Justice Act57 (PAJA)”
[21]
Ownership of the property in question was
transferred into the first respondent’s names in terms of
the
Upgrading Act of Land Tenure Rights which provides in section 2
that:
“
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 formalised 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 formalised 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.”
[22]
It is clear that in terms of the Upgrading Act, no
administration process had to take place but the conversion/
upgrading happened automatically as long as the person seeking a
conversion was a holder of the permit immediately before the
conversion. It is common cause that the first respondent was the
holder of a leasehold right issued in terms of the Conversion Act
and
therefore conversion into ownership had to happen in terms of the
Upgrading Act.
[23]
This Act however and specifically section 2(1)
does not provide for a review remedy and even section 24D
(10) (a) of
the Upgrading Act in terms of which a person who is aggrieved by an
entry made in a register of land rights may appeal
to the Minister
within 30 days of becoming aware of the entry, but not more than one
year after the entry was made does not fully
protect an aggrieved
party. This because it may take many years before an interested
person discovers that leasehold rights have
been converted into
ownership as this process happens automatically.
[24]
In the Rahube case (supra) Judge Goliath remarks
as follows:
“
It is not
uncommon for pieces of legislation that allow for the review of
decisions or procedures to contain time-bar clauses such
as this one.
Section 24D does not, however, allow for the condonation of the late
filing of an appeal. This initial injustice is
compounded by the fact
that the section does not establish any procedure by which affected
parties are notified of the automatic
upgrading of the right.
Resultantly, parties who have interests in property may only discover
years later that the ownership of
that property has been registered
in the name of the holder of a deed of grant. As is evident in the
case before us, these parties
cannot then rely on section 24D to
protect their rights because they are barred from bringing appeals
more than a year after the
right was registered.
[59] It is further worth
noting that section 24D only makes provision for an appeal after the
right has been registered in
the applicable registry. In the case
before us, counsel for the applicant stated that there was no
evidence that the right had
been registered. However, registration is
not a prerequisite upon which the validity of the right to ownership
is premised. Instead,
in terms of section 2(2) of the Upgrading Act,
registration simply gives effect to the right that was automatically
created by
section 2(1). It seems likely that there may be cases like
this one, in which the registration of the right cannot be located in
the registry. Here, the “protections” in section 24D
would be of little assistance as the appeal procedure is only
against
an entry made in a register, and not against the automatic upgrading
of the initial right”.
[25]
Similarly, in the case in consideration, the
affected parties were not notified of the conversion from leasehold
rights to ownership and when they finally discovered, the rights had
already been automatically transferred to the first respondent.
The
review process could not come as a remedy because the upgrade
happened automatically. I am inclined to agree with the applicant’s
submissions that the review process is not applicable in terms of
this procedure.
[26]
It should be noted from the first respondent’s
affidavit that regarding what may have transpired when
the section 2
inquiry was done, he alone was called to a hearing in which it was
inquired from him who was residing in the Jabulani
property, although
he mentioned that Cynthia, Lawrence and the applicant were residing
at the property, this was disregarded and
they were not called, can
it be said that a proper inquiry was conducted for which the
applicant should seek to review?
[27]
In my view, what the first respondent describes
does not qualify as a proper inquiry. Immediately upon discovering
that there are other people residing in the property, the officials
should have stopped and inquired into their status in relation
to the
property and thus notified them of the section 2 inquiry. This was
not done. I find that an inquiry was not conducted and
that the
applicant does not have to seek a review of or an appeal against the
decision because it was not an administrative process
but a process
which happened automatically in terms of the Upgrading Act.
Locus
standi
[28]
The first respondent submits that the applicant
does not have the necessary
locus standi
to prosecute this
application. According to the first respondent, any right that the
applicant may have had was always and at all
times under and through
him and his wife and the applicant had long left the property in
question. The applicant disputes that
he has no
locus standi
and
submits that he was a beneficiary by virtue of a permit issued in
terms of the Conversion Act; he was so listed in the permit
and was
residing in the property when the alleged inquiry was conducted.
[29]
The question whether the applicant has the
necessary
locus standi
to prosecute this application should be
determined with reference to the kind of relief he seeks from this
application namely;
that the second respondent be ordered to cancel
the deed of transfer in respect of property situated at Erf 2039
Jabulani Township,
Soweto Gauteng Province; and that the third
respondent be ordered to conduct an inquiry in terms of the
provisions of section 2
of the Conversion of Certain Rights and
Leasehold or Ownership Act 81 of 1988 for purpose of determining the
rightful claimants
of the above property. The applicant believes that
he is a beneficiary and a claimant in the property and therefore has
an interest
in the outcome of the relief sought in this particular
application as well as in the outcome of the inquiry to be conducted.
[30]
The nature of the interest one has in a matter
should accord fully with the reasoning in the matter of
Ahmadiyya
Anjuman Ishaati-Islam Lahore (SA) and another v Muslim Judicial
Council
and others
1983 (4) 855 (C)
at 863H –
864A wherein Tebbutt J explained the concept in the following terms:
“
it is
clear that in our law a person who sues must have an interest in the
subject matter of the suit and that such interest must
be direct
one”.
For a similar view see also
United Watch and Diamond Company (Pty)
Ltd & Others v Disa Hotels Ltd 7 Another
1972
(4) SA 409
(C)
.
[31]
It is clear from the facts in this matter that the
applicant has a direct and substantial interest in the
outcome of
this application. This because, by the nature of the process followed
when the property was transferred into the names
of the first
respondent he and other members of his family did not have a recourse
in terms of the Upgrading Act to dispute the
transfer or the
conversion of the leasehold rights into ownership because it happened
automatically. The applicant was also directly
affected by the
conversion because he was an occupant of the property in question
when the transfer took place.
[32]
I therefore find that the transfer of the property
in issue is invalid because it was done without an inquiry
in terms
of section 2 of Act 81 of 1988 and that cancellation and reversal of
the deed of transfer be ordered to allow an inquiry
in terms of
section 2 of Act 81 of 1988 to be held.
[33]
Accordingly I make the following order:
[33.1]
The second respondent is ordered to cancel the deed of transfer in
respect of property situated at Erf 2039 Jabulani Township,
Soweto
Gauteng Province;
[33.2]
That the third respondent is ordered to conduct an inquiry in terms
of the provisions of section 2 of the Conversion of Certain
Rights
and Leasehold or Ownership Act 81 of 1988 involving all the living
occupants listed in the permit granted on 15/11/1983
for purpose of
determining the rightful claimants of the above property; and;
[33.3]
The first respondent is ordered to pay the costs of this application.
VUKEYA
AJ
Acting
Judge of the High Court:
Gauteng
Local Division Johannesburg
Date
of hearing:
25/08/2020
Date
of delivery:
23/11/2020
Appearance
for the Applicant:
Mr M Dile
Instructed
by:
Dile Attorneys
Email
address:
mxolisidile@gmail.com
Tel:
011 297 1156
Appearance
for the Respondent: Adv Wynand Naude
Instructed
by:
ODBB Attorneys
Fedgroup Building,
Sandton
Email
address:
wna@wnlaw.co.za
Tel:
011 883 9041