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[2021] ZAGPJHC 358
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Langa N.O. v Langa and Others (2020/13032) [2021] ZAGPJHC 358 (31 May 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2020/13032
REPORTABLE:
/NO
OF
INTEREST TO OTHER JUDGES: /NO
REVISED.
NO
DATE
:
31 MAY 2021
In
the matter between:
TEBELLO
PATRICK LANGA N.O.
Applicant
(in
his capacity as the administrator
in
affairs of malosi maureen langa)
and
SEKI
ANGELINE LANGA
First Respondent
THE
DIRECTOR-GENERAL OF THE
DEPARTEMENT
OF HUMAN SETTLEMENTS,
Second Respondent
GAUTENG
PROVINCE
THE
MEC OF THE DEPARTMENT OF
HUMAN
SETTLEMENTS, GAUTENG PROVINCE
Third Respondent
THE
MASTER OF THE HIGH COURT,
JOHANNESBURG
Fourth Respondent
THE
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Fifth Respondent
THE
REGISTRAR OF DEEDS,
JOHANNESBURG
Sixth Respondent
REASONS
SIWENDU
J
Introduction
[1]
The applicant, Mr Tebello Langa, first
launched this application in his capacity as curator
ad
litem
of his sister, Malosi Maureen
Langa. He subsequently corrected the capacity in terms of which he
acts to reflect that he brings
the application in his capacity as the
administrator of the property of his sister, in terms of
s 63
of
the
Mental Health Care Act 17 of 2002
. He seeks an order—
(a)
cancelling Title Deed No: [....], which
holds property known as Erf [....], O[....] W[....] Township, Gauteng
Province (the ‘property’)
currently held in the names of
first respondent, Seki Angeline Langa, and her late husband, Joshua
Langa;
(b)
directing that, after the cancellation of
the Title Deed, the property be registered in Malosi Maureen Langa’s
name, in accordance
with the ‘Deed of Agreement’ made
between herself and the late Joel Langa on 16 October 1989.
[2]
In the alternative to prayer 1(b), the
applicant seeks an order—
(a)
that after the cancellation of the Title
Deed, the sixth respondent (the Registrar of Deeds, Johannesburg) be
directed to revert
the ownership of the property to its original
owner (the City of Johannesburg Metropolitan Municipality) and
register the property
in its name, in order for it to facilitate that
the second respondent (the Director-General of the Department of
Human Settlements)
hold an investigation and hearing in terms of
s 2
of the Conversion of Certain Rights into Leasehold or Ownership Act
81 of 1988, as amended (the ‘Conversion Act’),
to
determine the rightful owner of the property.
(b)
that a caveat be endorsed over the property
and against the Title Deed, in order to prevent the alienation
thereof until this matter
has been finalised.
[3]
I
observe, before dealing with the merits of the application, that a
Deed of Title can only be cancelled by a court order in terms
of s 6
of the Deed Registry Act 47 of 1937.
[1]
The second to sixth respondents are cited by virtue of their office
and statutory obligations. They did not oppose the application.
[4]
I note further, that on 23 September 2020
and 10 December 2020, the applicant deposed to two supplementary
affidavits, correcting
certain information in his founding affidavit
in respect of (1) the capacity in which he brings the proceedings, as
referred to
above; and (2) correcting the information pertaining to
the Title Deed at issue. He had issued a Rule 28(1) notice seeking
the
amendment. Other than the main application, which is opposed by
the first respondent, the interlocutory applications were not
opposed.
Even though I was not addressed by the parties on the
admission of the supplementary affidavits, I have, in the exercise of
my
discretion, admitted them. There is no prejudice to the
respondents.
Background
[5]
The genesis of the dispute is largely
common cause. The disputed property was occupied by the applicant’s
father (Mr Joel
Langa) and mother (Sally) in terms of a residential
permit issued to him on 1 September 1966 under the Urban Black Areas
Consolidation
Act 25 of 1945 (repealed in 1984).
[6]
Both parties do not dispute that the
prevailing legal regime at the time envisaged that on the death of
the permit holder, the property
would devolve to the of next kin,
failing which, to the people listed in the permit. The title to the
property remained with the
Municipality exercising jurisdiction. The
applicant, his sister, (Ms Maureen Langa) and their late brother (Mr
Joshua Langa) were
initially listed amongst the persons permitted to
occupy the property. Mr Joshua Langa is the first respondent’s
late husband.
He died in 2016.
[7]
It is a common cause that Mr Joshua Langa
left the property in 1978 upon his marriage to the first respondent
to start his family
in Pimville, where he lived with the first
respondent and their children. Accordingly, he was excluded from the
revised amended
permit re-issued in January 1978.
[8]
The applicant claims that with effect from
1984, there was a conversion in the rights of ownership of
residential property in the
then Black Townships. Residential permit
holders could acquire limited rights of ownership by way of a 99-year
leasehold in terms
of the Black Communities Development Act 4 of
1984. The applicant claims that a Certificate of Grant of Leasehold
was issued to
Mr Joel Langa in 1989, with the financial assistance of
his daughter, Ms Maureen Langa. Mr Joel Langa, in turn, concluded a
Deed
of Agreement on 16 October 1989 ‘bequeathing’ or
selling back the property to his daughter (Ms Maureen Langa)
presumably
in lieu of the financial assistance she provided.
[9]
The applicant conceded (in his papers and
during the hearing) that for unexplained reasons, despite the issuing
of the Certificate
of Grant to Mr Joel Langa, the process of onward
transfer of the leasehold envisaged above to Ms Maureen Langa was not
completed.
The Municipality had issued a Clearance Certificate in his
sister’s name in terms of s 54(2) of the Black Communities
Development Act.
[10]
The applicant contends that since his
father, Mr Joel Langa, had acquired the right to live on the property
in terms of the 99-year
leasehold, the property formed part of his
assets. In terms of s 2 of the Upgrading of Land Tenure Act 112
of 1991, people
who held a 99-year leasehold are regarded as having
acquired a ‘real right’ to the property and the 99-year
leaseholders
automatically qualified for a full ‘Title Deed’.
The rights flowing from the 99-year lease are registered with the
Deed Office.
[11]
It is common cause that Ms Maureen Langa,
who was in the medical pathology field at the time, lived in
Randburg, and did not occupy
the property with her parents. Both the
parents died in 1996, one in succession of the other.
[12]
In 1997, Mr Joshua Langa and the first
respondent approached Ms Maureen Langa and the applicant for
assistance. They had fallen
on hard times as both were retrenched and
were about to lose their established home in Pimville. It was agreed
they could occupy
the disputed property. The applicant claims that
all of them knew that his sister, Ms Maureen Langa, had the legal
rights to the
property.
[13]
The applicant claims that when Ms Maureen
Langa experienced periodic mental health difficulties in 2017, she
and the applicant decided
to look into all her personal affairs. On
attending at the offices of the Municipality and the Department of
Human Settlements,
the officials informed them that the property was
registered in the names of the first respondent and her late husband,
Mr Joshua
Langa, under the Title Deed which is now the subject of the
dispute.
[14]
The applicant claims to have sought
assistance from the Gauteng Land and Housing Crisis Committee and Pro
Bono Assistance without
success. Ultimately, a meeting was held at
the invitation of the Human Settlements Department in October 2019,
where the applicant
was advised about the Conversion Act, and that
the transfer to the first respondent ought not to have occurred
because of a flawed
procedure. These assertions, understandably, are
not supported by a confirmatory affidavit from the officials of the
Department.
[15]
The applicant claims that there had been a
series of invitations extended to the first respondent to attend at
the Department of
Human Settlements to resolve the issues. She has
consistently failed to do so. The applicant contends the transfer of
the property
was fraudulent. Curiously, the applicant also places the
onus on the first respondent to show how she and her late husband
acquired
the property.
[16]
The first respondent opposed the
application. She agrees that she and her husband were permitted to
stay in the property until they
found something affordable. I deal
with the legal arguments later in the judgment. However, on the
facts, the first respondent
produced a Final Notice issued in 2001 by
the Greater Soweto Housing Bureau. The notice invites ‘the
occupier’ to attend
at the Municipal Offices as part of what
was clearly a broad-based program to ensure the transfer of title to
occupiers in the
Township. Curiously, the notice asks the occupier to
bring, amongst others, the Residential Permit. The first respondent
has not
attached the permit or any documents leading to their
registration of title – other than the claim form completed by
her
late husband.
[17]
The first respondent contends that the
transfer of title to her and her husband was not a surprise because
on receipt of the notice,
her late husband called Ms Maureen Langa
(in her presence) to advise her about the notice. She claims further,
that Ms Maureen
Langa allegedly stated she had no interest in the
property. As a result, the first respondent's husband completed the
form as ‘the
occupier’ and thereafter claimed the right
to purchase the property. She claims that both the applicant and Ms
Maureen Langa
were informed of the transfer of the property soon
thereafter.
[18]
The
first respondent also disputed that Ms Maureen Langa acquired the
right of ownership in terms of the Deed of Agreement relied
on by the
applicant. She claims that Mr Joel Langa was not the registered
leasehold owner when he signed the Deed of Agreement.
She contends
that in terms of s 53(2) of the Black Communities Development
Act 4 of 1984, the right of leasehold had to be
registered with the
Deeds Office.
[2]
She claims that
the document relied on was an interim document which expired in May
1990 if not extended by an endorsement. Ms
Maureen Langa failed to
register the property in her name. She claims that the applicant acts
out of an ulterior motive to benefit
himself, as Ms Maureen Langa is
well-off, has no interest in the property, and has no children.
[19]
In argument, Mr du Preez (for the first
respondent) raised two preliminary points. Firstly, he disputed the
applicant’s
locus standi
to bring the application. He also argued that the first respondent’s
adult children are heirs in terms of the
Intestate Succession Act 81
of 1987
; he claims that the non-joinder of the first respondent's
adult children renders the application fatally defective.
[20]
Secondly, Mr du Preez argued that the claim
had prescribed because the applicant or Ms Maureen Langa knew in 2005
about the property’s
ownership, but failed to take action
timeously. Thirdly, he contended that because the leaseholder or
permit holder died intestate,
Ms Maureen Langa would not have been
the only intestate heir, and it is not clear whether the rights of
other heirs were considered.
[21]
Whether
s 11(d)
of the
Prescription Act 68 of 1969
applies in the
circumstances was placed in issue.
[3]
Other than an assertion that the applicant knew in 2005 of the
transfer of the rights (which was disputed in the replying affidavit)
Mr du Preez did not place any authority before the Court to support
whether a transfer of rights under the prevailing legislation
is
subject to extinctive prescription.
[22]
In so far as I understand the question of
locus standi
and the non-joinder, it is premised on the assertion that the first
respondent’s children were intestate heirs to the property
and
have an interest in the dispute. It would seem to me that if the
first respondent’s children could validly claim a devolution
of
rights in the property, then, subject to a decision on the merits,
the same should argument must apply in respect of Ms Maureen
Langa
and the applicant. They are direct descendants of the initial permit
holder, Mr Joel Langa. They too would have been entitled
to their
proportionate share and devolution of the rights of the permit holder
as his descendants. I am not persuaded by Mr du
Preez’s
argument.
Locus standi
cannot be dispositive of the application, having regards to the facts
of this case.
[23]
I have considered the relevant legislative
prescripts submitted by the applicant. I pause to mention that some
of the provisions
quoted in the Heads of Argument differ from the
text of the statutory provisions. Section 2(1) of the Conversion
Act provides
that:
‘
2.
Inquiry as to rights of leasehold
(1)
The Director-General shall conduct an inquiry in the prescribed
manner in respect of affected sites within his province in order
to
determine who shall be declared to have been granted a right of
leasehold or, in the case where the affected sites are situate
in a
formalized township for which a township register has been opened,
ownership with regard to such sites.’
[21]
In
Maluleke
v Maluleke
,
[4]
a judgment of the Full Court of this Division held that a failure by
the Director-General of Housing, Gauteng Province (the predecessor
to
the current Department of Human Settlements) to hold such an inquiry
compromises the
audi
alteram partem
rule.
[26]
Section 2(2) of the same Conversion Act says—
‘
Before
the commencement of such inquiry the Director-General 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.’
[27]
Curiously, the claim completed by the first respondent’s late
husband reads:
‘
With
benefit of the State's discount. The claim will be investigated in
accordance with the procedural summary, copy whereof is
attached
hereto. If the claim is found to be valid then the Council will
complete the agreement of sale, advise the claimant accordingly
and
proceed with transfer at no cost to him/her.’
[28]
The applicant claims that no one from the Department ever spoke to
nor consulted with them or
his sister, Ms Maureen Langa, despite all
the information and records which show that she had rights of
ownership over the property.
In any event, s 2(5) of the Conversion
Act requires a publication of the determination, and s 3 of the
Act provides for a
right to appeal by any party aggrieved by the
determination.
[24]
As
pointed out above, the applicant also claims that s 2(3)(c)
applies. Even though the applicant asserts that the provision
is set
out in imperative terms,
[5]
a
correct reading of s 2(3)(c) contradicts that position,
providing as follows—
‘
For
the purposes of the declaration under subsection (1) the
Director-General
may
—
(c) consider any intestate heir of the last such holder 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;’
[Emphasis added]
[25]
The
contention by Mr du Preez that the conversion of the residential
permit into the leasehold was inchoate because of a failure
to
register, and that it had therefore lapsed, is open to some doubt. As
I understand it, and without deciding the issue, in the
context of
s 2(1) of the Conversion Act, the rights under the statutory
leasehold were not terminable or forfeited at will,
as suggested. I
am nevertheless mindful that a Certificate of Provisional Grant of
Leasehold issued to Mr Joel Langa in 1989 purports
to expire in May
1990. In any event, Mr du Preez did not provide me with any authority
to support this contention.
[6]
[26]
To the balance of the argument advanced by
Mr du Preez, in terms of the Regulations issued under s 38(8)(a)
of the Bantu (Urban
Areas) Consolidation 25 of Act 1945, Regulation
10(1) prohibited the letting and the transfer of the property without
the consent
of the ‘superintendent’. Equally, the
Regulation prohibited the occupation of the first respondent and her
late husband.
Regulation 10(2) prohibits occupation by any dependent
not named in the residential permit or certificate in the first
instance.
[27]
I observe that the notice received
from the Soweto Housing Bureau, offering the transfer of the
property, is generic and written
to the ‘occupiers’. The
first respondent claims that the applicant and Ms Maureen Langa were
informed after the transfer
of the property, and that neither raised
an issue in this regard. However, it seems to me that unless the
first respondent demonstrated
to the Court the right she had to the
permit and/or lawful occupation, the validity of both her occupation
and the purported consent
are in doubt. I pause to mention that,
given the known history, it is surprising that the first respondent
does not dispute that
she refused to participate in discussion with
the Department of Human Settlements to explain the circumstances of
the transfer
of the property into her and her late husband’s
names’. It is further surprising that outside of the telephonic
conversation,
the transfer appears not to have been properly
discussed with all those who had an interest in the property,
including the applicant.
Conclusion
[28]
An appropriate order is to have the rights
of the parties properly ventilated through a properly constituted
inquiry. Given the
dispute, it is fitting that a caveat and/or
endorsement preventing the alienation or encumbrance of the property
is made until
the final determination of the issue. It is for these
reasons that the order of 30 April 2021 was made.
Therefore,
the following order was made:
1.
The Registrar of Deeds, Johannesburg, is
ordered to endorse and record a caveat of the property described as
Erf [....], O[....]
W[....], Gauteng Province and against Title Deed
No. [....] (currently registered in the names of Seki Angeline Langa
and the late
Joshua Langa) to prevent the alienation and/or
registration of encumbrance over the property pending the
finalisation of the Inquiry
in paragraph 2 below.
2.
The Director-General of the Department of
Human Settlements is ordered to hold an investigation and a hearing
in terms of s 2
of the Conversion of Certain Rights into
Leasehold or Ownership Act 81 of 1988, to determine the rightful
owner(s) and holders
of interest to the property.
3.
Each party is to pay its own costs.
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
These
reasons were handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on
31 May 2021.
Date
of hearing:
28
April 2021
Date
of order:
30 April 2021
Date
of reasons:
31 May 2021
Appearances:
Counsel
for the applicant:
Adv. L Memela
Attorney
for the applicant:
Gcwensa Attorneys
Counsel
for the first respondent:
Mr A du Preez
Attorney
for the first respondent:
Du Preez
Attorneys
[1]
Section
6
of the
Deeds Registries Act 47 of 1937
provides:
‘
Registered
deeds not to be cancelled except upon an order of court.
(1)
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.
(2)
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.’
[2]
Section
53(2) of the Act provides as follows: 'Any person to whom a
leasehold has been granted shall be entitled to a certificate
in the
prescribed form, issued by the registrar at the time of such
registration or at any prescribed time thereafter, stating
the fact
of registration of the leasehold in respect of the leasehold site in
question.'
[3]
Section
11
of the
Prescription Act provides
: ‘The periods of
prescription of debts shall be the following:
(a)
thirty years in respect of—
(i)
any debt secured by mortgage bond;
(ii)
any judgment debt;
(iii)
any debt in respect of any taxation
imposed or levied by or under any law;
(iv)
any debt owed to the State in respect of
any share of the profits, royalties or any similar consideration
payable in respect of
the right to mine minerals or other
substances;
(b)
fifteen years in respect of any debt owed
to the State and arising out of an advance or loan of money or a
sale or lease of land
by the State to the debtor, unless a longer
period applies in respect of the debt in question in terms of
paragraph (a);
(c)
six years in respect of a debt arising
from a bill of exchange or other negotiable instrument or from a
notarial contract, unless
a longer period applies in respect of the
debt in question in terms of paragraph (a) or (b);
(d)
save where an Act of Parliament provides
otherwise, three years in respect of any other debt.’
[4]
Maluleke
v Maluleke and Others
(ZAGPJHC) unreported case no. A5011/2015 (30 July 2018).
[5]
‘
The
Director-General must consider that intestate heirs can be granted
rights of Leasehold.’
[6]
Toho
v Diepmeadow City Council & Another
1993 (3) SA 679
(W);
Moremi
v Moremi
2000 (1) SA 936
(W).