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[2010] ZAGPPHC 292
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Moesei v Sheriff Pretoria North and Others (57331/2007) [2010] ZAGPPHC 292 (12 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
NORTH GAUTENG
DIVISION PRETORIA
CASE
NO: 57331/2007
DATE:
12 JANUARY 2010
In the matter
between
VIOLET MOETJI
MOESEI
..............................................................................
Applicant
And
THE SHERIFF,
PRETORIA NORTH
..................................................
First
Respondent
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
................................................................................
Second
Respondent
MATLAKALA MARIA
MKHIZE
........................................................
Third
Respondent
REASONS
FOR JUDGMENT
1 On the 22',a
September 2009 this Court issued an order in terms of which
a) The transfer of
an immovable property Described as Stand number 4172. Extension 4
Soshanguve South from the second respondent
to the third respondent
was declared null and void,
b) The first
respondent was ordered to transfer the said property to the second
respondent and to sign all necessary documents to
effect this
transfer;
c) The second
respondent was. (by agreement), ordered to pay the applicant's costs;
and
d) The third
respondent was ordered to pay the applicant's costs jointly and
severally with the second respondent, the one to pay.
the other to be
absolved and to pay the second respondent's costs.
2 The third
respondent has now applied for reasons for this judgment and order
3 The application
for reasons was filed significantly out of time and no application
for condonation has been made.
4 As the matter has
already taken far too much time to be finalized the Court will supply
its reasons in order to bring finality
to this matter as soon as
possible.
5. On the papers, it
is common cause, or it could not be disputed, that the applicant has
occupied the said stand since May 1997
in terms of a written lease
entered into between the applicant and her late husband on the one
hand and the second respondent's
predecessor in title, the Northern
Pretona Metropolitan Substructure
6 The lease was
effective from the 1“ April 1998. but records that the
applicant and her late husband occupied the stand since
the earlier
date
7 The stand is much
larger than the average residential property
8 The lease clearly
contemplated the possibility that a township might be declared in
respect of the leased stand (which was apparently
an agricultural
plot at the time the lease was entered into)
9. Clause 21 of the
lease agreement granted the lessee the option to purchase the
dwelling on the stand in the event of a township
being proclaimed on
certain conditions that have been fulfilled alternatively have never
been relied upon to cancel the lease by
the lessor
10 The stand was.
unbeknown to the applicant, transferred to the third respondent in
1999 by the Northern Pretoria MetroDOiitan
Substructure after it was
aliegedly allocated to the third respondent by an Area Committee as
part of an RDP housing project.
11 This allocation
was made in error as the stand is about twelve times the size of an
RDP stand.
12. The allocation
was made without any reference to the applicants then existing rights
arising from the lease agreement and her
occupation of the stand.
13. The second
respondent realized that the stand was transferred to the third
respondent in error and obtained and obtained the
third respondent's
written consent to the cancellation of this transaction in 2001.
14 The intended
re-transfer was not effected The applicant continued in occupation
until the third respondent launched eviction
proceedings against her
in the Magistrate's Court which granted an order on the strength of
the fact that the third respondent
was still the registered owner
This order was made during 2004
15 This order is
dependent upon the validity of the third respondent's claim to
ownership of the stand
16 The fact that
this transfer occurred in error is confirmed by the second
respondent, which undertook to pay the applicant's costs
in these
proceedings
17. The third
respondent is unable to deny the correctness of the applicant's
version and cannot dispute the fact that the stand
was transferred in
error to ner for a price that was a fraction of the real value of the
stand The fact that a price that was calculated
for a 300 square
meter RDP stand was determined for this stand, which is more than
twelve times the size, is further proof of the
fact that transfer to
the third respondent occurred in error.
18 The Northern
Pretoria Metropolitan Substructure and its development agents had no
mandate and no power to transfer the stand
to the third respondent
19 The third
respondent was clearly snatching at a bargain in opposing the
applicant s clam. It was for these reasons that the cancellation
of
The transferee was
ordered and the third respondent was ordered to pay the costs as set
out above
Signed at
Pretoria on this 05 January 2010
E BERTELSMANN
Judge of the High
Court