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[2011] ZAECPEHC 47
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Fifane and Others v Fifane and Others (2361/2010) [2011] ZAECPEHC 47 (8 November 2011)
11
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
PORT ELIZABETH
Case no: 2361/2010
Date heard: 26.5.2011
Date delivered:
8.11.2011
In the matter between:
LORNA NOYOSE FIFANE
…..................................................................
First
applicant
NCUMISA KHUTSENE
…...................................................................
Second
applicant
WENDY RAMTHE
…..............................................................................
Third
applicant
MONDE NDLALENI
….........................................................................
Fourth
applicant
PHINDIWE NDLALENI
…........................................................................
Fifth
applicant
NOBALINDI MSHUMPELA
…................................................................
Sixth
applicant
MNIKELO NDLALENI
…...................................................................
Seventh
applicant
NTUTHUZELO NDLALENI
…..............................................................
Eighth
applicant
VUYELWA FIFANE
…............................................................................
Ninth
applicant
vs
SIMPHIWE FIFANE
….........................................................................
First
respondent
NELSON MANDELA BAY
MUNICIPALITY
…...............................
Second
respondent
THE REGISTRAR OF DEEDS
….......................................................
Third
respondent
BOQWANA LOON AND
CONNELLAN INC
…................................
Fourth respondent
JUDGMENT
TSHIKI J:
A) INTRODUCTION
[1] First applicant is
one of the children and the daughter of the late Lettie Nomva Fifane
who died on the 8
th
February 1989. I will refer to Lettie
Nomva Fifane as the deceased. The deceased also had two other female
children Lulama and
Nondumiso also known as Patricia. Both Nondumiso
and Lulama have since deceased but had their own children and
grandchildren. Nondumiso
had one child, a son Phumzile Justice Fifane
whom I shall hereinafter refer to as Phumzile. Phumzile died on the
24
th
January 2005, leaving one child the first respondent
herein.
[2] During her lifetime
the deceased was the occupant and resident of the house situate at
Stand no 210205, 14 Molefe Street, New
Brighton, Port Elizabeth under
the then called 99 year lease. I shall refer to the stand as the
property. The 99 year lease was
only available to Black occupants of
houses in the townships in South Africa. In terms of the Conversion
of Certain Rights into
Leasehold or Ownership Act 81 of 1988 (the
Act), the houses in the townships which were held in terms of the 99
year lease could
be converted into ownership by those who occupy them
and upon a satisfaction of certain conditions.
[3] The first applicant
is the only surviving child of the deceased.
[4] It is common cause
that the property in question was subsequently bought by Nondumiso
from the Port Elizabeth Municipality,
the Nelson Mandela Bay
Municipality referred to as the second respondent. It is not clear
under what circumstances was the property
sold by the second
respondent to Nondumiso. It is common cause that on 21 November 1995,
Nomalungelo Mavis Sandlana, Lulama Muldred
Ndlaleni and Nondumiso
Patricia Fifane approached the office of the Master of the High Court
with a view to report the death of
the deceased. A record of the
proceedings which reveals the purpose of their visit is annexed to
the proceedings on page 52. First
applicant was not present though
she was one of the heirs of the deceased. Those who attended
requested that the property be given
to Nondumiso who is referred in
the record as Patricia. They were advised that nothing could be
decided without the presence of
the other members of the family
including the first applicant herein. What next happened is that the
property was bought by Nondumiso.
[5] Before I deal with
the first respondent’s version, I must voice my displeasure in
the manner in which the applicants’
papers are drawn and
presented. This has been done in a poor and undesirable fashion to
the extent that it is clear that they were
never checked after they
had been typed and before they were filed in Court. Attorneys or
counsel who present slovenly drafted
papers for their clients in that
fashion should not be allowed to charge their clients for such work.
Paragraph 2.4 of the Notice
of Motion proves the careless manner in
which the applicants’ case has been presented. Details of the
contents of para 2.4
will be mentioned later in this judgment.
Annexures are not given numbers for easy identification for instance
the document on
page 52 of the record.
[6] I now deal with the
first respondent’s version. He states that the property in
issue is registered in the name of his
grandmother Nondumiso Patricia
Fifane and this was done in 1999. The late Nondumiso was in fact
given a title deed to the property.
First respondent has been
residing in the said property since birth. Apparently after the death
of his grandmother, first applicant
came to stay with him in the same
property. After the death of his grandmother Nondumiso, the Fifane
family started to fight for
the ownership and/or possession of the
said property. In 2006, he was appointed by the Master of the High
Court as the estate representative
of both his late mother and his
late father’s estates. His father Phumzile died on 24
th
January 2005. When he received the papers of the proceedings in this
case the property was in the process of being transferred
into his
name as the heir of his late father who would have inherited from
Nondumiso. The transfer was to be effected by the attorneys
who are
the fourth respondents herein.
[7] He denies that the
property belonged to the estate of the deceased. He further denied
that the applicants are legally entitled
to inherit the said
property. According to him, applicants are not entitled to get the
orders sought herein. It is apparent from
annexures SF4 and SF5, that
Nondumiso pre-deceased her son Phumzile Justice Fifane. According to
the annexures Nondumiso died on
23 August 2004 whereas Phumzile died
on 24 January 2005. The two annexures SF4 and SF5 are letters of
authority appointing the
first respondent as the estate
representative of the estates of the late Nondumiso and Phumzile.
Both letter of authority which
reflect the dates of death of both
deceased persons.
[8] I gather from the
papers that there has been no winding up of the estate of the late
Nondumiso and it does not appear that there
is a liquidation and
distribution account. For that reason, the estate of the late
Nondumiso, the owner of the property, should
have been joined in
these proceedings duly represented by its estate representative.
There is no such joinder and that first respondent
has been cited
herein only in his personal capacity.
[9] During argument of
this application, Mr M.W. Nobathana appeared for the applicants and
Mr V. Naidu represented the first respondent.
There was no appearance
for the other respondents who did not oppose the application.
B) DID THE PROPERTY FORM
PART OF DECEASED ESTATE?
[10] I agree with Mr
Naidu that the relevant Act in terms of which the property would have
been converted to ownership on behalf
of the deceased is the
Conversion of Certain Rights Into Leasehold or Ownership Act 81 of
1988 (the Act). The Act came into force
in January 1989. The Act that
has been cited by Mr Nobathana does not apply herein especially when
one has regard to the fact that
when the Upgrading of Land Tenure
Right Act 112 of 1991, the Act cited by applicant, came into force
after the deceased had already
died.
[11] Section 2 of the Act
provides:
“
(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 formalised
township for which a township register has been opened, ownership
with regard to such sites
(2) ...
(3) ...
(4) At the conclusion of the inquiry
and after having considered any relevant claim or objection, the
Director-General shall, if
he is satisfied that the person concerned
is, subject to the provisions of subsection (3), in respect of the
site concerned –
(a) the holder of a site permit,
certificate or trading site permits; or
(b) the holder of rights which in the
opinion of the Director-General
are similar to the rights of the
holder of a site permit, certificate or trading site permit,
determine whom he intends to declare
to have been granted a right of leasehold or, in the case where the
site is situate in a formalised
township for which a township
register has been opened, ownership in respect of the site
concerned.”
[12] I have no doubt that
given the circumstances of the deceased, had she applied, she would
have been granted ownership of the
property. Unfortunately, there was
no such determination by the Director-General as contemplated in the
Act. The deceased was therefore
not the owner of the property when
she died and therefore the property could never have formed part of
the deceased’s estate.
[13] The enquiry could
also have been conducted even after the deceased death to determine
who of her children should be the owner
of the property in terms of
the intestate succession. (
Nzimande v Nzimande and another
(2004) JOL 13167
(W)
).
[14] Instead of the
determination by the Director-General in terms of the Act the second
respondent decided to sell the property
to Nondumiso which sale was
effected for reasons not clear in the applicant’s papers.
C) ISSUES
[15] The issues herein
are whether or not this Court has the right to interfere by way of
reviewing the second respondent’s
decision to sell the property
to Nondumiso. Further, whether this Court can, at this stage, have
the power to review and set aside
the decision of the second
respondent in selling the property to Nondumiso. And lastly, whether
the Court should direct the sixth
respondent to register the property
in the name of first respondent and the applicants.
[16] My earlier decision
that the property was never owned by the deceased answers all the
questions posed above in the negative.
Paragraph 2.4 of the Notice of
Motion is vague and does not make sense. It does not indicate in what
capacity is the person referred
to therein appointed. It is termed as
follows:
“
2.4
Reviewing and setting aside the decision of the second respondent
appointing the second respondent of which it granted of Erf
2102
Ibhayi, Division of Port Elizabeth, situate at 14 Molefe Street, New
Brighton, Port Elizabeth to Nondumiso Fifane, in terms
of the
upgrading of Land Tenure Rights Act, 1991 (Act 112 of 1992) and
directing the sixth respondent to register the property
in the name
of the first respondent and applicants.”
[17] In my view the whole
sentence does not make sense and in any event even if it was, and
assuming that it meant to ask the Court
to direct this Court to
review and set aside the second respondent’s decision to sell
the property to Nondumiso, there would
be no valid basis for this
Court to interfere with the second respondent in dealing as it
pleased with its property. It was the
second respondent’s
property and not that of the deceased. The provisions of the Act
above do not apply in the facts of this
case for the reasons I have
already explained.
[18] For the reasons that
are to follow, the applicants’ application for review is way
out of time, however, that notwithstanding,
I will deal with its
merits in an attempt to convince the applicants that even on the
merits they could not have succeeded.
D) DELAY
[19] The right to apply
for review of administrative action is in terms of section 33 (1) of
the Republic of South Africa Constitution
Act, 1996 which provides
that everyone has the right to a procedurally fair, lawful and
reasonable administrative action. However,
the process of enforcing
those rights is governed by section 7 of the Promotion of
Administrative Justice Act (PAJA) no 3 of 2000.
[20] Section 7 (1) of
PAJA provides
inter alia
that any proceedings for judicial
review must be instituted without unreasonable delay and not later
than 180 days after the date
on which the decision complained of was
taken. Even before the promulgation and application of PAJA common
law made provision to
challenge unfair and unlawful administrative
action within a reasonable time and without delay. An applicant is
obliged to make
an application for condonation of the late filing of
the application for review which has been taken out of time in terms
of PAJA.
If such application is not filed within a reasonable time in
terms of the common law an applicant should explain in his founding
affidavit the reasons for the delay in taking action. None of the
above has been done by the applicant herein.
[21] The property was
sold to Nondumiso in 1999 and was registered in her name in the same
year. In 2006, first applicant became
aware that the property was
sold and registered in the name of Nondumiso but she only took action
to lodge the present proceedings
in 2010. In
Wolgroeners
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 12
(A)
the Court held that the Court has an overriding discretion to refuse
to entertain review proceedings not brought within a reasonable
time,
even in the absence of proof that the respondent has suffered
material prejudice.
[22] Even where the issue
of condonation arises, the Court exercises a discretion which is a
judicial discretion to be exercised
in the light of all the relevant
circumstances (
Sedgefield Ratepayers and Voters’
Association v Government of the RSA
1989 (2) SA 685
(C)
at
696D). Applicant has not applied for the condonation of the late
filing of the review application. There are, therefore, no
reasons
for this Court to condone the late filing of the application. In
Radebe v Government of the Republic of South Africa
1995 (3) SA
787
(N)
at 798A-D, H-J the Court held that in the absence of
a statutory time limit, the Courts, in terms of their inherent powers
to regulate
procedure, require review proceedings to be instituted
within a reasonable time. There are two principal reasons for the
rule that
the Court should have the power to refuse to entertain a
review at the instance of an aggrieved party who has been guilty of
unreasonable
delay. The first is that it is both desirable and
important that finality should be reached within a reasonable time in
respect
of judicial and administrative decisions. In deciding whether
a reasonable time has elapsed, the Court does not exercise a
discretion.
The enquiry is a factual one, depending on all the
relevant circumstances. If the Court were to arrive at the conclusion
that there
has been unreasonable delay, it exercises a discretion as
to whether the unreasonable delay should be condoned.
[23] Having said above I
have no reason to believe that the applicant should be entitled to a
condonation. Be that as it may, I
will deal with the merits of the
review for the sake of completeness and finality. As already alluded
to
supra
there are no reasons for me to interfere in the
second respondent’s power to deal with the property in
question. The property
does not belong to the deceased and neither
does it belong to the estate of the deceased. In my view, it became
the estate of Nondumiso
after the deceased’s death and should,
therefore, have been dealt with in its capacity as the property of
the estate late
Nondumiso and not as the property of the deceased. It
never was the property of Leticia Fifane at any given moment.
[24] The late Nondumiso
is alleged to have misrepresented facts when she bought the property
from the second respondent. First applicant
and other applicants
contend that they never authorised Nondumiso to register the property
in her name. Indeed they have no business
to authorise Nondumiso to
register the property in her name because they had no
locus standi
to deal with the property. Neither did they have any relationship
with the property other than that it was their home when their
mother, the deceased, was still alive. It is unfortunate that the
deceased died before the property was registered in her name
but
there is nothing that this Court can do to assist the applicants.
This is so because the property was never in law the property
of the
deceased. It has never been owned by the first applicant’s
mother at all. It, therefore, could never have been the
property of
the deceased. For the above reasons there are no grounds for this
Court to interfere with the second respondent’s
actions in
selling the property to Nondumiso.
E) COSTS
[25] I gather from the
evidence on record that the applicants differ materially in their
employment status. Some are unemployed,
others are employed but fall
under low income group and the others are referred to as business
people. It is also common cause
that they are all related to each
other. For instance the main applicant who has deposed to the
founding affidavit is unemployed.
I then have to also take into
consideration that the first respondent is also indigent in that he
is represented by the Justice
Centre in Port Elizabeth in terms of
the Legal Aid Act. If I award costs against the applicants without
discrimination they would
have to pay costs jointly and severally
notwithstanding the fact that I have no idea how much is the income
of those employed and
or those self employed. It may be too little
for them to afford the High Court costs. It is only the fifth
respondent who is in
gainful employment as a teacher. In my view it
would not be fair to her if I make the award of costs against
applicants. In the
circumstances, I would rather prefer not to make
an order of costs herein.
[26] In the result, I
make the following order:
[26.1] The application is
dismissed.
[26.2] Each party is to
pay its own costs.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
For the applicants : Adv.
W. Nobantana
Instructed by : Andile
Ngqakayi Inc
PORT ELIZABETH
For the respondents : Mr.
V. Naidu
(for first respondent)
PE Justice Centre
PORT ELIZABETH