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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 27945/22
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 30 January 2024
SIGNATURE
n the matter between:
BELLA THANDEKA NDLOVU APPLICANT
and
KORINTE SEKUBA 1ST RESPONDENT
ALL UNKNOWN UNLAWFUL OCCUPIERS 2ND RESPONDENT
CITY OF TSHWANE MENTROPOLITAN
MUNICIPALITY 3RD RESPONDENT
JUDGMENT
HF JACOBS, AJ:
[1] This is an application for the eviction of Ms Korinte Sekuba 1, a sixty
year old female, from the property known as Erf 13148, Mamelodi East,
Mamelodi, Pretoria, measuring 295 square meters in extent on which a
residential dwelling is situated in which Ms Sekuba resides.
[2] The applicant is one of the registered owners of Erf 13148. The
other owner is the applicant’s brother, Mr L M Masango. Mr Masango is not
an applicant in these proceedings but deposed to a supporting affidavit.
[3] The applicant and Mr Masango became registered owners of Erf
13148 on 24 January 2018 in terms of Deed of Transfer number T[...]8. They
received registration of transfer of the said property from the representative in
the estate of the late Mr Nelson Bekinkosi Nzimande who, according to the
title deed, passed away on 7 November 2002 and left no will. The applicant
and Mr Masango inherited Erf 13148 in terms of section 1(1)(b) of the
Intestate Succession Act, No 81 of 1987. Erf 13418 was first transferred and
held under Deed of Transfer number T[...] and General Plan number L[...].
The Deed of Transfer T[...] does not form part of the record in these
proceedings.
[4] The applicant and Mr Masango claim that they are as owners of
the property entitled to vacua possesio and, therefore, seek the eviction of Ms
Sekuba from the property. Prior to the enrolment of this application an order
was granted on 30 June 2022 by Mngqibisa-Thusi J authorising service of
this application and a notice in terms of section 4 (2) of the Prevention of
Illegal Eviction from an Unlawful Occupation of Land Act, 19 of 1998 on all
the respondents concerned. Service of the papers took place accordingly
and at the hearing it appeared that Ms Sekuba is the only occupier of Erf
13148.
1 The first respondent
[5] Ms Sekuba was represented by an attorney when she delivered
her answering affidavit which she deposed to on 30 January 2023 , but
appeared in person at the hearing.
[6] In her answering affidavit Ms Sekuba states that she is sickly and
suffer from epilepsy which adversely affects her ability to seek permanent
employment. She last had employment during 2000 and is living on a
government grant. She admits that she resides on Erf 13148 and explains
her presence on the property and her right to occupy the same as follows:
[7] During or about February 2003 Ms Sekuba entered into a written
agreement of sale with Mr Chris Nzimande who she knew as the owner of Erf
13148. A copy of the sale agreement is attached to her answering affidavit.
She says that in terms of the agreement she purchased Erf 13148 for
R20,000.00 from Mr Chris Nzimande and that the purchase price was
payable by several instalments. Ms Sekuba then proceeded to pay the full
purchase price by way of instalments the last of which was R4,500.00 and
were paid to the daughter of Mr Chris Nzimandi , Thembi Ja ca, during 2006
as Mr Chris Nzimande had by that time passed away. Ms Sebuka states that
she and Mr Chris Nzimande also had an agreement that she would take
transfer of Erf 13148 after the purchase price had been paid in full.
[8] Ms Sekuba challenges the statement of the applicant in her
founding affidavit that she and Mr Masango inherited Erf 13418 from their late
father Mr N elson Bekinkosi Nzimande. Ms Sekuba states that Mr Chris
Nzimande was the stepfather of Mr N elson Nzimande and alleges that the
applicant and Mr Masango are the step grandchildren of Mr Chris Nzimande.
Ms Sekuba states that prior to the purchase of the property it was public
knowledge in the area that Erf 13418 belonged to Mr Chris Nzimande and
that he at the time resided there prior to selling it to Ms Sekuba. Mr N elson
Nzimande, so Ms Sekuba states, took occupation of the property with his
mother who was subsequently either married to or cohabitated with Mr Chris
Nzimande and that when Mr N elson Nzimande and his mother moved into
the property, Mr Chris Nzimande had been residing there for some time.
When Mr N elson Nzimande passed on 7 November 2002, so Ms Sekuba
alleges, he was survived by his children being the applicant and her brother
Mr Masango and his stepfather Mr Chris Nzimande and by his half -sister
Thembi J aca who was his stepfather’s only biological child. According to
information at the disposal of Ms Sekuba supplied to her by Mr Thembi Jaca,
Mr Chris Nzimande never legally adopted, or customar ily adopted the
applicant and her brother and that M s Thembi Jaca was aware of the
agreement Ms Sekuba had with her father Mr Chris Nzimande and she
accepted that she had to and in fact did pay the final instalment towards the
purchase price of Erf 13418 to Ms Thembi Jaca. From the answering affidavit
of Ms Sekuba, it appears that the final instalment of the purchase price was
paid to Ms Thembi Jaca during 2006 (par 10 of the answering affidavit) while
Mr Chris Nzimande passed away during 2003.
[9] Ms Sekuba says that it was only around June 2012, about ten
years after the death of Mr N elson Nzimande, that the municipality (the third
respondent) addressed a letter to Mr Nzimand e to collect the title deed of Erf
13148 from its offices. It is, therefore, necessary, in my view, to know who
the registered owner of Erf 13148 was under Deed of Transfer number T[...]
as mentioned on the second page of the Deed of Transfer number T[...]8
under which the applicant and her brother Mr Masango hold title to the said
property. Ms Sekuba states that the municipality issued accounts for rates
and taxes in respect of the property to Ms Thembi Jaca during 2019 which
shows that the municipality had knowledge of occupation of the property by a
person other than the applicant and her brother. In paragraphs 26, 27, 28
and 29 of her answering affidavit, Ms Sekuba challenges the rights of the
applicant and her brother to have obtained registration of t ransfer of Erf
13148 and says that she has been residing on the said property for more
than nineteen years and during that period she enjoyed undisturbed
possession of the property with the knowledge of the applicant and her
brother, Mr Masango and during the period of occupation she affixed
improvements to the property both in the interior and exterior of the dwelling
thereon for an amount of close to R10,000.00 while she was under the firm
impression that the property belongs to her and she has the necessary title to
reside there.
[10] In reply the applicant challenges the evidence and allegations
made by Ms Sekuba. She denies that Mr Chris Nzimande had any title to the
property at all and asserts her right and that of her brother as owners of it.
[11] No evidence is presented of alternative accommodation that is
available to Ms Sekuba as an elderly individual. No evidence is presented in
these proceedings as to the costs o f the value of the improvements Ms
Sekuba alleges she made to the property. No counter application has been
instituted by Ms Sekuba at all to assert her rights and to claim whatever relief
she deems appropriate be it transfer of the property into her name or
payment of compensation before she vacates it as demanded by the
applicant. No evidence of Ms Jaca is offered to address the allegations and
evidence pertaining to the alleged ownership of Mr Chris Nzimande and no
evidence is offered by the applicants to explain why no rental has been paid
to Mr Nelson Nzimande or the applicant during the time Ms Sekuba was in
occupation of the property.
[12] I am unable to make a finding on the papers before me. There are
numerous disputes of fact concerning the right and title of Ms Sekuba to
occupy Erf 13148.
[13] In my view the dispute s and the question whether Ms Sekuba
should be evicted from the property concerned cannot be resolved in motion
proceedings. Under the circumstances I am of the view that the dispute must
be referred to trial and that the issue of costs of the motion proceedings
should be decided by the trial court.
Under the circumstances I make the following order:
1. The application is referred to trial.
2. The applicants notice of motion shall stand as simple summons.
3. The applicant shall deliver her declaration within one month from the
date of this order.
4. Further process to be followed shall be in terms of the Uniform Rules
of Court.
5. The costs of the application proceedings shall be decided by the trial
court and form part of the costs of the action proceedings.
6. The Registrar of this Court is directed to deliver a copy of this
judgment to the Legal Practice Counsel to consider appointing a legal
practitioner to assist Ms Sebuka on a pro bono basis.
H F JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for hand -down is
deemed to be 10h00 on the 30th January 2024.
APPERANCES
Applicants’ counsel: Mr MK Mabote
Applicants’ attorneys: MK Mabote Incorporated
Respondent: In person Ms Korinte Sekuba