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[2010] ZASCA 167
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Kuzwayo v Representative of the Executor in the Estate of the Late Masilela (28/2010) [2010] ZASCA 167; [2011] 2 All SA 599 (SCA) (1 December 2010)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
: 28/2010
In the
matter between:
MVULAZANA
GEORGINA KUZWAYO
......................................................
Appellant
and
THE REPRESENTATIVE OF THE EXECUTOR
IN THE ESTATE OF THE LATE
MBONGENI JONAS MASILELA
............................................................
Respondent
Neutral citation:
Kuzwayo v Estate late Masilela
(28/10)
[2010] ZASCA 167
(1 December 2010)
Coram:
LEWIS, VAN HEERDEN, MAYA and SHONGWE JJA and K PILLAY AJA
Heard:
16 NOVEMBER 2010
Delivered
1 DECEMBER 2010
Summary:
Holder of a site permit and occupier of site entitled
to apply for order that Registrar of Deeds cancel deed of transfer to
wrong
person; also entitled to ask that Director-General of Housing
in province hold an inquiry in terms of s 2 of the Conversion of
Certain Rights into Leasehold or Ownership Act 81 of 1988 in order to
determine to whom ownership should be granted.
ORDER
On appeal from the South Gauteng High Court (Masipa J sitting as
court of first instance):
1 The appeal is dismissed with costs, including those of two counsel.
2 Paragraphs 1 and 2 of the order of the high court are replaced with
the following:
‘
(1) The Registrar of Deeds (Johannesburg)
is ordered to cancel the title deed number T020450/2004 in respect of
Erf 2000 Vosloorus,
Gauteng Province, and to cancel all the rights
accorded to the first respondent by virtue of the deed.
(2) The Director-General for the Department of Housing, Gauteng
Province, is directed to hold an inquiry in respect of Erf 2000
Vosloorus, Gauteng Province, in terms of s 2 of the Conversion of
Certain Rights into Leasehold or Ownership Act 81 of 1988, and
to
declare that the holder of the site permit in respect of the Erf is
the owner thereof.’
______________________________________________________________
JUDGMENT
LEWIS JA (VAN HEERDEN, MAYA AND SHONGWE JJA AND K PILLAY AJA
concurring)
[1] This appeal reveals a sad tale of bureaucratic bungling and an
opportunistic attempt to take advantage of it. The bungling
lay in
converting a site permit into ownership in terms of the Conversion of
Certain Rights into Leasehold or Ownership Act 81
of 1988 (the
Conversion Act), and transferring the site to the wrong person. The
appellant, Ms M G Kuzwayo (now Peacock), who was
the first respondent
in the high court, was the beneficiary of the clerical error, as I
shall show. The respondent in the appeal
is the Estate of the late Mr
M J Masilela, which should have been the beneficiary of the transfer.
The representative of the executor
of the deceased Estate of
Masilela, Sentinel International Trust Company (Pty) Ltd, in turn
represented by Ms I Van der Merwe,
brought an application to cancel
the deed of transfer pursuant to
s 6
of the
Deeds Registries Act 47
of 1937
.
[2] Masipa J granted an order that the Registrar of Deeds, the second
respondent in the court below, cancel the title deed incorrectly
issued. She also ordered the Gauteng Provincial Government
(represented in the high court proceedings by the third respondent,
the Director-General for the Department of Housing, Gauteng and the
fourth respondent, the MEC for the Department of Housing, Gauteng)
to
transfer the property to the deceased Estate. It is against these
orders that Kuzwayo appeals with the leave of the high court.
The
other respondents in the court below have played no role in this
appeal.
[3] The background to the application to the high court is briefly
this. On 4 January 1985 a site permit in respect of Erf 2000,
Vosloorus, Gauteng, was granted to Kuzwayo on her application. She
had indicated on the application form that she intended to build
a
house on the site as soon as her application was approved. But on 21
January 1987 she was sent a notice asking her to report
to Mr G T
Prinsloo of the Vosloorus Town Council because she had not paid any
site rent. She signed the notice, stating that she
was unable to pay
the amount required and that she thereby handed the site back to the
town council. (In her answering affidavit
Kuzwayo denied that the
signature on the form was hers, a matter to which I shall return.)
[4] On 23 January 1987 Masilela applied for a site permit and was
allocated the site that Kuzwayo had handed back. The application
form
indicated that he paid arrears of R221.60 (what Kuzwayo had owed); an
advance of R166.20 and R3 000 for ‘infrastructure’.
Masilela subsequently also paid R380 for water and sewerage
connections to the site.
[5] It is not disputed that Masilela built a house on the site, the
building plans having been approved by the town council, and
that he
and his family lived in it for 13 years before his death on 31
December 2000. His family continued to live in the house
after his
death, and all municipal accounts were paid by the Masilela family.
By the time the high court heard the application
the Masilela family
had lived on the property for some 22 years and two of his children
and their children still occupied it.
[6] The Conversion of Certain Rights into Leasehold or Ownership Act
81 of 1988 was amended in 1993 so as to provide, inter alia,
for the
conversion of site permits (or other rights in land) into ownership
where the affected site was situate in a formalized
township –
which Vosloorus was. Section 4 of the Act provides for the
Director-General to declare a person who has met certain
requirements
to have been granted ownership of the property concerned, and s 5
provides for a transfer of property into the name
of such a person
once a declaration has been made.
[7] Before a declaration can be made, however, the Director-General
is required, under s 2 of the Act, to conduct an inquiry into
the
affected site and as to the identity of the occupier of the relevant
site. The section sets out in detail the inquiries to
be made by the
Director-General and the steps to be followed. Essentially what has
to be established is the identity of the person
who is entitled to a
site and the rights that should be conferred on him or her. The
section requires the Director-General to consider
any claims to a
site, or objections to claims, and then to make a determination as to
whom to declare as the owner of the site
in question. Such
determination, and the fact that it is subject to appeal in terms of
s 3 of the Act, must be published in the
prescribed manner. Section 3
sets out the procedure for appeal by a person aggrieved at the
determination.
[8] Once the period in which an appeal may be prosecuted has elapsed
the Director-General is required, as I have said, to declare
that
ownership of the site shall vest in the person in favour of whom the
determination has been made, and transfer follows. It
is of the
essence of the inquiry that the Director-General establishes who,
according to the records of the local authority, is
in occupation of
a site.
[9] There is no evidence that any inquiry was conducted by the
Director-General in respect of the site. But on 3 March 2004, some
three years after Masilela had died, Ms F Visagie, a delegate of the
Director-General, issued a declaration that Kuzwayo had been
granted
the right of ownership in respect of the site. On the same day,
Visagie certified that the site had been bought by Kuzwayo.
And on 7
April the site was transferred to her. The obvious inference to be
drawn from this is that Visagie looked only at the
first allocation
of the site to Kuzwayo, and failed to notice that she had handed the
site back and that it had subsequently been
allocated to Masilela who
had paid for it. A serious clerical error was made. And it is quite
possible that no inquiry was held
and that there was no decision that
would have allowed for any declaration or transfer at all.
Regrettably the Gauteng provincial
government has played no part in
the proceedings and the court has not had the benefit of evidence in
this regard.
[10] The Masilela family, the representative of the executor of the
deceased Estate and Kuzwayo were all ignorant of any process
in
respect of the site. It was only when municipal accounts for
services, addressed to Kuzwayo at the address of the site occupied
by
the Masilela family, started being received sometime in 2005, that
the family realized something was amiss. Previous municipal
accounts
in Masilel’s name had been sent to him at that address.
[11] The Masilela family informed Sentinel, the representative of the
executor of the Estate, of this development. However, when
Sentinel
attempted to have the error rectified, it was advised that the
Registrar of Deeds could not change the deeds register
without an
order of court. Hence the application under
s 6
of the
Deeds
Registries Act for
an order directing him to do so.
[12] The application was opposed, Kuzwayo taking numerous points in
limine and raising various defences, some of which I shall
deal with,
albeit briefly, and others of which have been abandoned. An
extraordinary feature of her opposition is that she failed
altogether
to explain what right she had to a permit in the first place. Despite
the fact that Masilela or his family had occupied
the property, in
terms of a valid site permit, for nearly 18 years before the site was
transferred to Kuzwayo, and that Masilela
had built a house on it,
and paid for municipal services in respect of it, Kuzwayo asserted
that she was entitled to the site and
that the deeds register should
not be rectified.
[13] Kuzwayo, in her answering affidavit, apart from dealing with the
points in limine, alleged that she had been allocated a site
but that
she had not paid for it on the advice of an official who suggested
she pay for her children’s education rather than
the site. She
denied that she had signed the document relinquishing the site,
asserting that the signature was not hers. She had,
she said,
actively pursued and waited for the property over the years. She did
not substantiate this allegation in any way.
[14] The denial of the signature is not to be given any credence. It
is clear from her conduct over many years that Kuzwayo laid
no claim
to the property. It was developed and occupied by Masilela and his
family over a long period and Kuzwayo made no queries
about it, let
alone claimed any right to it, in that time. The only evidence that
she adduced to show any connection between herself
and the property
was a municipal account addressed to her on 13 August 2008 –
after the site had been transferred to her.
The account was attached
as an annexure to a supplementary answering affidavit.
[15] Kuzwayo’s claim to a right in the site was countered by
Prinsloo, who deposed to an affidavit in support of the application.
Prinsloo was the housing manager in the Vosloorus Town Council when
Kuzwayo applied for a site permit. He said that the site was
undeveloped when it was allocated to her. She was required to pay
site rent and to build on it. But she defaulted on her payments.
Several notices were sent to her calling on her to pay the amounts
owed. Copies were attached to Prinsloo’s affidavit.
[16] Prinsloo interviewed Kuzwayo about her failure to pay rent. She
said that she was unable to pay, and agreed to return the
site to the
council. She signed the document acknowledging that she was in
arrears and was returning the site in his presence.
[17] Prinsloo was also responsible for the allocation of the site
subsequently to Masilela. He confirmed that Masilela had paid
all
amounts due to the council. And he had submitted building plans for
approval by the council and then developed the site accordingly.
Prinsloo’s view was that Masilela’s estate was entitled
to be declared the owner of the property and that transfer
should
have been effected to it.
[18] Needless to say, Kuzwayo questioned Prinsloo’s authority.
She also denied that she had handed back the site. She added,
in a
further supplementary affidavit, that she was informed in 2003 that
there had been a newspaper advertisement that she was
to be granted
the property. She thought that the site in question was undeveloped
until transfer to her in 2004 when she discovered
the truth. She did
not, however, state what she had done to take possession of the site
or exercise any of her rights since then.
[19] It may seem obvious at this stage that the transfer of the site
to Kuzwayo was a mistake. But, as I have said, she raised
several
issues in limine and legal defences to which I now turn.
Locus standi
[20] The applicant in the court below was ‘the Representative
of the Executor in the Estate Late Mbongeni Jonas Masilela’.
The founding affidavit was deposed to by Ms van der Merwe, who said
that she was duly authorized to depose to it as the representative
of
Sentinel International Trust Company (Pty) Ltd, the company that was
administering the Estate of Masilela. Sentinel, she said,
was
authorized to administer the Estate by virtue of a power of attorney
granted by the executor on 18 July 2002.
[21] She attached various documents to prove her authority to act.
These included letters of executorship issued by the Master
on 26
October 2001, which had appointed Mr F A Pienaar, in his capacity as
a nominee of Old Mutual Trust, as executor and a Master’s
certificate replacing Mr Pienaar with Mrs A M Pienaar, issued on 12
July 2002. Mrs Pienaar in turn had given a power of attorney
to
administer the Estate to Sentinel on 18 July 2002. Van der Merwe did
not, however, attach any document demonstrating her authority
to act
for Sentinel. This defect was cured when Van der Merwe deposed to the
replying affidavit and attached a resolution of Sentinel
authorizing
her to act on its behalf.
[22] Kuzwayo argued that it was the executor, Mrs Pienaar, who ought
to have represented the Estate, and that Sentinel lacked locus
standi. The power of attorney in favour of Sentinel stated that
Sentinel ‘or its duly authorised representative’ was
authorized to do all things necessary to manage and administer the
Estate. The high court found that Sentinel did have locus standi
and
dismissed the point in limine.
[23] Nonetheless Kuzwayo persisted with the point on appeal. The
argument was that only the executor had locus standi to bring
an
application. Counsel for Kuzwayo could not explain why the executor
was not permitted to authorize Sentinel (which in turn authorized
Van
der Merwe) to litigate on behalf of the Estate. It is true that the
papers lack clarity: one has to look to the attachments
of Van der
Merwe to the founding and replying affidavits to establish the chain
of authority. And while the applicant was cited
as ‘The
Representative of the Executor in the Estate of the Late Mbongeni
Jonas Masilela’, Van der Merwe averred that
she was ‘duly
authorized’ to depose to the affidavit as the representative
not of the Estate but of Sentinel. However,
the authority was
established on the papers albeit in a clumsy fashion, and the point
should not have been persisted with on appeal.
Unfortunately this
persistence resulted in an application by the executor to join in the
appeal. I shall deal with that application
in due course. I consider
that Sentinel did have the authority to bring the application in the
high court.
Ownership
[24] Kuzwayo argued that the high court should not have found that
the Estate was the owner of the site. But it did not make any
such
finding. The court simply found that the site permit vested in the
Estate and that the transfer to Kuzwayo pursuant to the
provisions of
the Conversion Act had to be cancelled. It ordered that the site
should revert to the Gauteng Provincial Government
and that the
latter should transfer it to the Estate. Whether this order was
permissible is a matter to which I shall revert.
The Estate’s cause of action
[25] The application to the high court was said to be brought in
terms of
s 6
of the
Deeds Registries Act, and
the high court made its
finding on that basis.
Section 6
is not an empowering provision,
however. It provides only that the Registrar of Deeds may not cancel
any deed of transfer except
upon an order of court. Kuzwayo argued
that an application could not be brought under
s 6:
there must be
some other cause of action.
[26] Sections 2, 4 and 5 of the Conversion Act do not directly confer
a right of ownership on a site permit holder and occupier.
But s 2
does require the Director-General to identify the person who is in
occupation of the site (in accordance with the records
of the local
authority) and after inquiry, declare that that person has the right
to acquire ownership. In my view, the Estate,
as holder of the site
permit, was entitled to ask the court for an order cancelling the
transfer to Kuzwayo who was neither a permit
holder nor an occupier
of the site. The court has the inherent power, implicit in s 6 of the
Deeds Registry Act, to order cancellation
of rights registered in the
Deeds Register:
Ex parte Raulstone NO
1959 (4) SA 606
(N) and
Indurjith v Naidoo
1973 (1) SA 104
(D).
[27] The Estate was also entitled to ask that the Director-General
conduct the inquiry required in terms of s 2 of the Conversion
Act.
The two Masilela children who continued to occupy the site after
Masilela’s death could, in my view, also have brought
an
application in the same terms, provided that they were heirs to the
Estate.
Administrative Action: Review
[28] Kuzwayo argued that the proper course of action for Van der
Merwe to have followed would have been to review the ‘decision’
in terms of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). But her counsel was hard put to explain what decision
it was
that could be reviewed. He submitted that it was the ‘decision’
of the official who signed the declaration and
the deed of transfer.
That cannot be so. The only administrative decision that could and
should have been made was that of the
Director-General or his
delegate, after the inquiry mandated by s 2 of the Conversion Act.
And that was the only decision that
could be subject to review. The
act of signing the declaration and the deed of transfer were but
clerical acts that would have
followed on a decision. Not every act
of an official amounts to administrative action that is reviewable
under PAJA or otherwise.
[29] Unfortunately neither party was aware of any inquiry that may
have been conducted in terms of s 2 nor of any administrative
decision made pursuant to the inquiry. It would undoubtedly have been
best for the Estate, had it been made aware of a decision
of the
Director-General, and of the declaration and transfer that would
follow, to take the Director-General on review. But the
Masilela
family were not informed of any decision, and apparently Van der
Merwe was also not advised of an inquiry or any of the
consequences.
The Director-General was cited as a respondent in the high court but
did not participate in the proceedings. This
court cannot assume that
an inquiry was held and a decision was made. Thus Kuzwayo’s
argument that Van der Merwe should have
applied for a review of a
decision is misconceived, as are all the attendant arguments in
respect of such a review.
The application to intervene
[30] Shortly before the hearing of the appeal the Board of Executors
Trust Ltd, as the executor of the Estate (in place of Mrs
Pienaar)
sought leave to intervene as the executor. (In fact the application
should have been brought in the name of Old Mutual
Trust, and leave
was sought to amend the founding affidavit – something that is
not possible. But since the application must
be refused nothing turns
on this.) Counsel for the applicant argued that the executor should
be joined if Sentinel did not properly
represent the Estate. The
application was sought on the basis that Kuzwayo persisted with the
argument that Sentinel had no locus
standi.
[31] Counsel advised that the executor was of the view that Sentinel
had been properly before the high court, but had brought its
application ex abundante cautela. I have already held that Sentinel
had locus standi as the representative of the executor. Accordingly
the executor itself cannot be joined. The application is refused with
costs.
The proper order to be made
[32] The Conversion Act requires an inquiry to be conducted by the
Director-General pursuant to s 2 before a declaration is made
that a
site permit be converted to full ownership, and before transfer is
effected to the occupier. The high court erred in directing
transfer
by the Gauteng Provincial Government to the Estate in the absence of
such an inquiry. In my view, although the Estate
is probably entitled
to acquire ownership, an inquiry should be held. The high court was
correct, however, in ordering the cancellation
of transfer to
Kuzwayo. She has no right to the property and her conduct in opposing
the application and pursuing this appeal is
remarkably opportunistic.
[33] 1 The appeal is dismissed with costs, including those of two
counsel.
2 Paragraphs 1 and 2 of the order of the high court are replaced with
the following:
‘
(1) The Registrar of Deeds (Johannesburg)
is ordered to cancel the title deed number T020450/2004 in respect of
Erf 2000 Vosloorus
and to cancel all the rights accorded to the first
respondent by virtue of the deed.
(2) The Director-General for the Department of Housing, Gauteng
Province, is directed to hold an inquiry in respect of Erf 2000
Vosloorus in terms of s 2 of the Conversion of Certain Rights into
Leasehold or Ownership Act 81 of 1988, and to declare that the
holder
of the site permit in respect of the Erf is the owner thereof.’
_____________
C H Lewis
Judge of Appeal
APPEARANCES
APPELLANTS:
A M van Wyk
Instructed
by Garratt Mbuyisa Neale Inc
Johannesburg
Symintgton
& de Kok
Bloemfontein
RESPONDENTS:
M Sikhakhane (with him K Mnyandu)
Instructed
by Gcwensa Attorneys
Johannesburg
Webbers Attorneys
Bloemfontein
INTERVENING
APPLICANT: G Malindi SC
Instructed by Webbers Attorneys
Bloemfontein