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[2022] ZAFSHC 326
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Mokgobo and Another v Mabona and Others (5777/2021) [2022] ZAFSHC 326 (14 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 5777/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
TSHOLOHELO
EDDIE MOKGOBO
1
st
Applicant
APHAPHIA
MPOTSENG MOKGOBO
2
nd
Applicant
and
KEITUMETSE
MAGGIE
MABONA
1st
Respondent
ANY
AND ALL PERSONS RESIDING AT OR OCCUPYING
THE
PROPERTY OF THE APPLICANTS THROUGH OR BY
VIRTUE
OF THE RESIDENCE BY OR OCCUPATION OF THE
1ST
RESPONDENT
2nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3rd
Respondent
HEARD
ON:
18
AUGUST 2022
JUDGMENT
BY:
MHLAMBI,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLI.
The date and time for hand-down are deemed to be at 09h30 on 14
November 2022.
Introduction
[1]
The applicants seek an order in terms of the provisions of the
Prevention of Illegal
Eviction and Unlawful Occupation of Land Act,
19 of 1998 (the PIE Act), evicting the first and second respondents
from the property
known as [....] M[....] street, R[....],
Bloemfontein, Free State Province, also known as erf number [....],
Mangaung district,
Bloemfontein.
[2]
The first respondent opposed the application and simultaneously filed
a counter application
seeking,
inter alia,
that the third
respondent is ordered to conduct an inquiry in terms of section 2 of
the Conversion of Certain Rights into Leasehold
or Ownership Act, 81
of 1988 (the Conversion Act) with regards to erf [....] Mangaung
district, Bloemfontein, Free State Province,
and that the parties are
granted leave to approach the court on the same papers after the
third respondent had conducted the inquiry.
The
founding affidavit
[3]
The applicants were, in the year 2020, interested in purchasing a
residential property.
They were referred to a certain Matshidiso
Emily Morakabi (Mrs Morakabi), who confirmed that she was indeed
selling a property
that she showed to them. The applicants wished to
formalise the agreement and instructed Messrs Phatsoane Henney
Attorneys to do
the necessary.
[4]
The attorneys, before drafting the formal documents, conducted a
Deeds Office search
and established that the property to be sold
belonged, and was registered, in the names of Matshidiso Emily
Morakabi and Philip
Mahlomola Morakabi on 17 November 2014.
[5]
A written sale agreement was concluded on 28 October 2020 at the
attorneys’
offices. As of this date, Philip Mahlomola Morakabi
was deceased and the sale of the property agreement was concluded
with Mrs
Morakabi in her capacity as the representative of the
deceased estate; whereafter the transfer and registration process
began and
was finalised on 15 January 2021.
[6]
Mrs Morakabi informed the applicants that the relevant property was
occupied by the
first respondent and that she, as the owner of the
property, would inform the first respondent that she would be selling
the property.
The first respondent would have to vacate the property
and or relinquish her occupancy of the premises by virtue of the
sale. The
applicants could not confirm whether Mrs Morakabi did act
accordingly.
[7]
Early in January 2021, the applicants were informed by their
attorneys that the property
would soon register in their names. They
informed Mrs Morakabi of the impending property registration and
requested her to inform
the first respondent to vacate the premises
once the registration had taken place.
[8]
To their surprise, Mrs Morakabi informed them that she could not go
to the first respondent
and give her notice to vacate the property by
virtue of the following:
1.
A family dispute existed between them;
2.
She and the first respondent had a pending court dispute between them
which prohibited her
from going to the first respondent; and
3.
That the duty to give the occupant notice rested upon the applicants
as she would no longer
be the owner of the property.
[9]
The applicants then approached the first respondent and informed her
that they purchased
the property which she had to vacate once the
registration process was finalised. Their attempts in this regard
were unsuccessful
and in May 2021 they approached their attorneys who
despatched a formal notice to vacate the premises to the first
respondent.
The first respondent opposed the legal steps through her
attorneys at Legal Aid.
The
opposing affidavit and counterapplication
[10]
The first respondent’s opposing affidavit also served as the
founding papers for her counterapplication.
She averred that her
mother, Kenalemang Angelina Mabona, and Mrs Morakabi, are the
children of her late grandmother, Sophie Mabona,
who was allocated
the property in question as per a site permit issued by the third
respondent on 9 February 1984. She was raised
by her grandmother and
occupied the property since birth.
[11]
Her grandmother died on 8 June 2010. She was 31 years at the time.
She resided at the property
with her grandmother until the date of
her death. Her mother and aunt never lived with her grandmother.
[12]
She approached the Master of the High Court in 2014 when it came to
her attention that her aunt,
Mrs Morakabi, had obtained Letters of
Authority in relation to her grandmother’s estate in a
fraudulent manner. The Master
issued fresh Letters of Authority in
the names of both her mother and her aunt, Mrs Morakabi. It appeared
to her that Morakabi
had purposely omitted her mother’s name
from the next-of-kin affidavit, creating the impression that she was
the only child
of her deceased grandmother. As a result, she was
appointed as the sole representative of the estate. Copies of all
these documents,
including the revoked Letters of Authority, were
attached to the first respondent’s opposing affidavit.
[13]
It was clear to her that her aunt did not have the right to sell the
property. This fact and
state of affairs were brought to the
attention of the applicant’s attorneys through the exchange of
correspondence between
her attorneys and the applicants’. She
was advised that the third respondent had a duty to conduct an
inquiry in accordance
with the Conversion Act. She was convinced that
the inquiry was never done as she was never approached by anyone from
the third
respondent who had the duty to establish who the occupants
of the property were, as part of the inquiry.
[14]
Her occupation of the property was never unlawful as her right to
occupy was never terminated
by the lawfully appointed Master’s
representatives of the estate of her late grandmother.
[15]
Her averments were confirmed by her mother, Kenalemang Mabona, who
stated in her affidavit that
she was the first respondent’s
mother and was appointed, together with her sister, Mrs Morakabi, as
representatives of the
estate of their late mother. She never agreed
to, nor was she aware of the sale of the property to the applicants.
Mrs Morakabi
never obtained her permission to dispose of the property
of her late mother and she was not aware of any inquiries by the
third
respondent. The first respondent resided on the property in
question since her birth.
[16]
The first respondent stated that she had a protection order against
Mrs Morakabi barring the
latter from entering the property she
occupied. To this effect, she attached a copy of the protection order
to her affidavit. This
order was granted on 25 September 2019,
ordering Mrs Morakabi not to harass, insult and emotionally abuse her
and not to prevent
her or any child who ordinarily lived on the
residence at [....] Kagisanong, R[....], Bloemfontein from entering
or remaining thereon
or on any part thereof.
The
applicant’s answering and replying affidavit
[17]
The applicants raised three points
in limine
to the first
respondent’s counterapplication in that, firstly, the first
respondent’s relief sought in the counterapplication
was not
permissible in law; secondly, the non-joinder of the seller or the
non-attachment of her confirmatory affidavit and, thirdly,
the lack
of
locus standi
of the first respondent’s attorney, who
deposed to a confirmatory affidavit as the latter had no standing to
act on behalf
of the first respondent as a party to these
proceedings.
[18]
The relief sought by the first respondent was not permissible in law
as the court was requested to make a declaratory order
in
circumstances where the third respondent had already made a
decision
[1]
. As the third
respondent’s decision to transfer the property into the name of
Mrs Morakabi was not reviewed and set aside,
the court could not make
an order that an inquiry in terms of the Conversion Act is held, as
such an inquiry would be moot.
[2]
The Conversion Act provided for the transfer of property into the
names of persons who were the holders of permits to occupy and
who
were not entitled to become owners thereof.
[3]
The Director-General was enjoined to conduct an investigation into
the identity of the person(s) entitled to receive ownership.
[4]
The decision taken by the Director-General or his delegate to
transfer the property into the name of Mrs Morakabi and, whether
or
not an enquiry was held, was an administrative decision that could
only be reviewed and set aside in terms of the Promotion
of
Administrative Justice Act 3 of 2000 (PAJA).
[5]
[19]
Mrs Morakabi was granted ownership of the property in terms of
section 4(1)(b) of the Conversion Act and had the right
to transfer
ownership to the applicants.
[6]
The applicants admitted that the registration of the property into
the names of Mr and Mrs Morakabi was in November 2014 after
the
amended Letters of Authority were issued by the Master
[7]
.
They also admitted the contents of paragraph 2.8 of the answering
affidavit
[8]
relating to
annexures B,C,D and E to the first respondent’s
counterapplication. Annexure B was the copy of the Master’s
letter dated 22 May 2014 that invited Mrs Morakabi’s comments
to the first respondent’s allegations; annexure D, a
copy of
the revoked initial Letters of Authority dated 24 October 2012;
annexure C, a copy of the next-of-kin affidavit dated 24
October 2012
and annexure E, a copy of the fresh Letters of Authority issued in
both the first respondent’s mother and Mrs
Morakabi’s
names, bearing the date stamp of 2 July 2014.
[20]
The applicants sought an order,
inter
alia
,
declaring the first and second respondents unlawful occupiers within
the meaning of the PIE Act
[9]
and that it would be just and equitable that they are evicted from
the property as the applicants were the owners of the property
[10]
.
The applicants were, among others, denied any form of rental income
which could be raised from potential lessees and the property
was not
available and open for viewing to attract potential buyers.
[11]
The
legal position
[21]
In
Grobler
v Phillips and Others,
[12]
it was stated that justice and equity in terms of the PIE Act means
that a just and equitable balance is struck between the rights
of the
occupier and those of the owner to infuse justice and equity in the
inquiry.
[13]
[22]
Section 4(8) of the Act provides that If the court is satisfied that
all the requirements of this section have been complied
with and that
no valid defence has been raised by the unlawful occupier, it must
grant an order for the eviction of the unlawful
occupier, and
determine a just and equitable date on which the unlawful occupier
must vacate the land under the circumstances.
[23]
The question that arises is whether it is just and equitable to grant
an order of eviction on
a consideration of all the relevant
circumstances of this case. In
Grobler
v Phillips and Others,
[14]
it was stated that:
“
No
case in which an order of eviction from a residence is sought can
ignore the visceral reality of what is sought, namely the ejectment
of a person from their home in vindication of a superior right to
property. Nor can the legal process by which the order is obtained
be
divorced from our fraught history of eviction and ejectment of
vulnerable persons from their homes. It is to this visceral reality
that our Constitution addresses itself in s 26, and in this context
that relevant legislation is to be interpreted and applied.”
[24]
In the present matter, the first respondent is 43
years old and has lived on the property since birth. It
is not in
dispute that Mrs Morakabi sold the property on her own without the
consent of her sister who was the co-executrix or
co-representative
of their late mother’s estate. The Master’s letter of 22
May 2014 went unheeded by Mrs Morakabi which
gave rise to the
revocation of the Letters of Authority of 24 October 2012 and the
subsequent issue of fresh ones by the Master
on 7 July 2014.
Notwithstanding the changed circumstances, she proceeded to
singlehandedly register the property, forming an asset
in the estate,
in her and her husband’s names. It is clear from a perusal of
the Next-of-kin document, which is admitted
by the applicants, that
she presented herself to the Master as the only surviving child of
her deceased mother. The conclusion
is inescapable that she presented
herself to the Master and probably the Director-General or his
representative as the only survivor
and possible heir to her deceased
mother’s estate. She manipulated herself into the position to
allocate to herself an asset
in the deceased estate.
[25]
The centrepiece of the applicants’ answering affidavit is that
the decision taken by
the Director-General or his delegate to transfer the property into
the name of Mrs Morakabi and, whether or
not an inquiry was held, was
an administrative decision, which could only be reviewed and set
aside in terms of the Promotion of
Administrative Justice Act 3 of
2000 (PAJA). In the absence of a review application to set aside the
administrative decision, the
first respondent did not have a case.
[26]
In
Kuzwayo
v Estate late Masilela,
[15]
it
was held that a holder of a site permit and an occupier of a site are
entitled to apply for an order that the Registrar of Deeds
can cancel
a deed of transfer to a wrong person. They are also entitled to ask
the director-general of Housing in a province to
hold an inquiry in
terms of section 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.
[27]
The court, in this case, rejected the argument
[16]
that the proper course of action to have followed would have been to
review the ‘decision’ of the official who signed
the
declaration in terms of PAJA, as 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
section 2 of the Conversion Act. 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
a decision. Not every act of an official amounts to an administrative
action that is reviewable under PAJA or otherwise.
[17]
[28]
The court went further and stated that:
“
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.”
[18]
[29]
The Conversion Act requires the Director-general
to 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 situated in a formalized township for which a
township register has been opened, ownership
with regard to such
sites.
[19]
Before
a declaration can be made, the Director-General is required to
conduct an enquiry into the affected site, and the identity
of the
occupier of the relevant site. 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.
[20]
The determination as to whom to declare as the owner is subject to an
appeal.
[21]
Section 3
sets out the procedure for an appeal by a person aggrieved by such a
determination.
[22]
[30]
In
Kuzwayo
,
the court stated that, in its view, although the estate was probably
entitled to acquire ownership, an inquiry should be held.
Taking into
consideration the circumstances of this case, it is clear that Mrs
Morakabi’s conduct in falsifying the information
presented to
the Master, having the property registered in her name, and her
alienation of the property to the applicants, was
outrageous and
opportunistic. The only route to follow in order to infuse justice
and equity in the given circumstances is, in
my view, to follow the
guidance of the provisions of the Conversion Act.
[31]
In her counterapplication, the first respondent sought that an
inquiry should be held
and
that the parties be granted leave to approach the court on the same
papers after the third respondent had conducted the inquiry.
The
request is not preposterous as the applicants conceded that it was
correct that the Conversion Act was applicable in this matter
[23]
and the Director-General was enjoined to conduct an investigation
into the identity of the person(s) entitled to receive ownership
in
terms of the Conversion Act.
[24]
The remainder of the applicants’ special pleas do not hold
water bearing in mind the legal position set out above. It is
not
correct that Mrs Morakabi would suffer prejudice if she were not
joined as a party to the present proceedings.
[32]
It is trite that the successful party is entitled to the costs.
However, due to the circumstances
and the direction that this matter
may follow, I am of the view that costs should be reserved for later
adjudication.
[33]
In the premises, I am of the view that the following order is
appropriate in the circumstances:
Order:
1.
The
application for the eviction of the respondents on erf number [....],
Mangaung district, Bloemfontein, is dismissed;
2.
The Director-General for the Department
of Housing, Free State Province, is directed to hold an inquiry in
respect of Erf [....],
Mangaung, Bloemfontein in terms of section 2
of the Conversion of Certain Rights into Leasehold or Ownership Act
81 of 1988, and
to declare who the owner of the Erf is.
3.
The parties are granted leave to
approach the court on the same papers, supplemented if necessary,
after prayer 1 above has been
complied with.
4.
Costs are reserved for later
adjudication.
MHLAMBI,
J
On
behalf of the Applicant: Adv.
D.C Hatting-Boonzaaier
Instructed
by: Phatsoane
Henney Inc
35
Margraaf Street
Westdene
Bloemfontein
On
behalf of the Respondent: Ms
I De Wet
Instructed
by:
Bloemfontein
Justice Centre
4th
Floor Fedsure Life Building
49
Charlotte Maxeke Street
Bloemfontein
IN
THE HIGH COURT OF SOUTH
AFRICA
,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 5777/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE
TO MAGISTRATES: NO
In
the matter between:
TSHOLOHELO
EDDIE MOKGOBO
1
st
Applicant
APHAPHIA
MPOTSENG
MOKGOBO
2
nd
Applicant
and
KEITUMETSE
MAGGIE
MABONA
1
st
Respondent
ANY
AND ALL PERSONS RESIDING AT OR OCCUPYING
THE
PROPERTY OF THE APPLICANTS THROUGH OR BY
VIRTUE
OF THE RESIDENCE BY OR OCCUPATION OF
THE
1
st
RESPONDENT
2
nd
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALITY
3
rd
Respondent
ADDENDUM
TO JUDGMENT
MHLAMBI,
J
[1]
It has been brought to my attention by
the registrar that paragraph 3 of the order does not correctly
reflect the order because
of a typing error. Paragraph 3 states that
the parties
are
granted leave to approach
the
court on the same papers supplemented if necessary, after prayer 1
above has been complied with. The correct position is that
the said
paragraph should read that the parties are granted leave to approach
the court on the same papers,
supplemented
if necessary, after paragraph 2 above
has been complied with.
[2]
It is therefore clear that this was a
patent clerical error as envisaged
by
Rule 42(1)(b) of the Uniform Rules and the order has been amended
accordingly.
Dated
at Bloemfontein on this 14
th
day of November 2022
MHLAMBI,
J
On
behalf of the Applicant:
Adv. D.C Hatting-Boonzaaier
Instructed
by:
Phatsoane Henney Inc
35
Margraaf Street
Westdene
Bloemfontein
On
behalf of the Respondent: Ms
I De Wet
Instructed
by: Bloemfontein
Justice Centre
4th
Floor Fedsure Life Building
49
Charlotte Maxeke Street
Bloemfontein
[1]
Para 2.1.2.
[2]
Para 2.1.3.
[3]
Para 2.1.4.
[4]
Para 2.1.5.
[5]
Para 2.1.6.
[6]
Para 7.5.
[7]
Para 7.2.
[8]
Para 7.1.
[9]
Prayer 1 of the notice of motion.
[10]
Para 12.1 of the founding affidavit.
[11]
Applicants’ heads of argument: paras 6.5.8 and 6.5.9.
[12]
(CCT 243/21)
[2022] ZACC 32
(2022) para 39.
[13]
Hattingh v Juta [2013] ZACC 5; 2013 (3) SA 275 (CC).
[14]
Supra.
[15]
(28/10)
[2010] ZASCA 167
(1 December 2010
).
[16]
Kuzwayo,
s
upra
.
[17]
Kuzwayo,
supra para 28.
[18]
Kuzwayo, supra para 29.
[19]
Section 1.
[20]
Nzimande and Another vs Nzimande and Others (24490/12) [2012]
ZAGPJHC 223 (11 September 2012)
[21]
Section 3 of the Conversion Act.
[22]
Section 3 of the Conversion Act.
[23]
Para 7.4: Applicants’ Answering and Replying Affidavit.
[24]
Para 2.1.5: Applicants’ Answering and Replying Affidavit.