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[2021] ZAGPJHC 773
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Ozoh v Dladla and Others (19/31789) [2021] ZAGPJHC 773 (11 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
19/31789
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
11 August 2021
In
the matter between:
BONGIWE
MAZIBUKO OZOH
Applicant
And
ZAKHELE
THEOPHELUS DLADLA
1
ST
Respondent
ZAKHELE
THEOPHELUS DLADLA N.O
2
ND
Respondent
(AS
EXECUTOR OF ESTATE LATE BETTY DLADLA)
THE
DIRECTOR GENERAL OF THE DEPARTMENT
3
RD
Respondent
OF
HOUSING: GAUTENG PROVINCE
THE
CITY OF JOHANNESBURG METROPOLITAN
4
TH
Respondent
MUNICIPALITY
THE
REGISTRY OF DEEDS : JOHANNESBURG
5
TH
Respondent
Coram:
Majavu AJ
Heard
:
09 June 2021
Delivered:
11 August 2021 – This judgment
was handed down electronically by circulation to the parties'
representatives by email, by
being uploaded to the
CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down is deemed to be 11h00 on 11 August 2021
Summary:
Applicant seeks a declaratory order for cancellation of a Certificate
of Right of Registered Leasehold (Title deed”),
which was
registered in the names of the first and second respondent. The
applicant’s mother was the holder of a regulation
7 permit,
which was cancelled. The first and second respondents subsequently
issued with residential permit, later purchased the
property through
a 99-year leasehold scheme, in terms of the Black Communities
Development Act 4 of 1984, which was later upgraded
to full title in
terms of the Upgrading of Land Tenure Rights Act 112 of 1999. The
said property does not form part of the applicant’s
mother’s
deceased estate as contended. A
declarator
seeking
cancellation of the first and second respondents’ title deed is
thus unmeritorious and unsustainable. Consequently,
the application
is dismissed with costs.
ORDER
The
application is dismissed with costs, including the costs consequent
upon the employment of counsel.
Majavu
AJ
Introduction
[1]
This is an application for the cancellation of a Certificate of
Registered the Right of
Leasehold number TLXXX/1999 which was
registered on 9 March 1999 in the names of the first and second
respondent, in respect of
erf number XXX in Meadowlands Township,
Registration Division I.Q in the Province of Gauteng. The application
is only opposed by
the first and second respondents, understandably
so. The balance of the other respondents played no role in these
proceedings.
[2]
A brief summary of the legal position in respect of residential
properties pre the
constitutional dispensation, as was specifically
crafted for black people, with reference to establishments, that came
to be known
as townships or urban areas, is necessary in order to
appreciate how the dispute came about. In the end, the issue for
determination
is straightforward and crystallised, as will be more
apparent later.
Historical
land rights or lack thereof
[3]
During the dark days of apartheid, Black People, Africans in
particular, were prohibited
by law to hold full ownership rights in
respect of properties in the so-called urban areas and townships. All
pre-existing land
rights were completely obliterated and replaced
with a myriad of laws, including, but not limited to the Black
(Urban) Areas Consolidation
Act 25 of 1945. In fact, they were not
even permitted to reside in urban areas without the permission of a
township superintendent
in whose area of jurisdiction such an
applicant intended to reside. All land rights vested in the
Municipality (Bantu Affairs Administration
Boards, as they were known
as then) in question. In the event that a township superintendent was
inclined to grant the application,
then on behalf of the
Municipality, such an applicant would then enter into an agreement
which typified a landlord-tenant relationship,
as the houses in that
municipal area were owned by the Municipality, and in the present
case, the City of Johannesburg (4
th
respondent).
Ex
facie
such a residential permit, it was made absolutely clear
that the right enjoyed
is no more than the right to occupy the
dwelling on the site
. In some instances, a site permit would
be issued in respect of a vacant piece of land and the applicant
would then build a house
thereon. In this case, we are concerned with
an already existing house on municipal land, typical 4 roomed houses,
also known,
in township parlance, as
municipal houses
.
[accentuation]
[4]
As proof of successful application to occupy a particular dwelling in
the township,
the tenant would then be issued with a document called
“residential permit”. Also stated on such a permit would
be
applicant, his spouse, children and any other persons in respect
of whom the applicant may be a guardian. This was a control mechanism
to ensure that only those whose names appear on the permit are
authorised to stay on the said property.
[5]
As a
quid pro quo
, the applicant was obliged to pay “rent”
which included a portion of what is now commonly referred to as rates
and
taxes. Back in the day, the term
rent
was used for all
levies and consumables (not that there were many) due to the
Municipality. Failure to pay such a rent on due dates
or allowing
unauthorised persons to leave on the property would usually be met
with immediate and arbitrary termination of that
agreement, resulting
in the applicant, including those who occupy through him, being
evicted and almost immediately being replaced
with others, who are
supposedly on the waiting list.
[6]
In the event of the death of the permit holder, for example husband
or head of the
family, then the permit would “devolve” to
the surviving spouse, absent the surviving spouse, to the eldest son,
eldest
daughter, and so on, provided those to whom it would devolve
were listed on the said permit when it was issued to the applicant
or
at any subsequent stage during such applicant’s tenure.
[7]
Later on The Black Community Development Act 4 of 1984 was enacted.
This Act allowed
black people some form of
phantom-ownership
because they were, for the first time
allowed to buy properties
in terms of a system referred to as “99-year leasehold”.
I call it
phantom-ownership
in that, it allowed the buyer to
“own” property for a period of 99 years and during that
period the said buyer could
do as they please with it, including
bequeathing it to one’s immediate family members. However, the
only catch was that,
the said buyer/owner could not be issued with
full title (in the form of a title deed) as a benefit which was only
open to white
people at the time. As an upgrade from residential
permit, in terms of this new piece of legislation, a buyer would then
be issued
with a “certificate of occupation” or leasehold
title, evidencing his
phantom-ownership.
[8]
There were further enactments namely, in the Conversion of Certain
Rights Act 81 of
1988, which came into effect on 8 January 1989,
followed by The Upgrading of Land Tenure Rights Act 112 of 1991. In
terms of the
latter Act, people who are holders of 99 year leasehold
were regarded as having been granted a “real right” and
as
a result the 99 year leasehold automatically qualified for a full
title
[1]
.
[9]
Later on, the anomalies of the differentiated land and property
ownership rights along
racial lines, had somewhat been regularised
with the advent of the
Housing Act 107 of 1997
and most importantly
entrenched on the Constitution of the Republic of South Africa
[2]
(“the Constitution”) with passing reference to sections
25 and 26 thereof.
[3]
This
is
unfortunately
the sad tale of any black person, who at some point of their life,
resided in townships also called urban settlements,
in the
pre-constitutional era. A discussion for another day.
Facts
of the current dispute
The
first respondent’s version
[10]
It is undisputed that prior to 1980, the property in dispute was
allocated to Ms Elizabeth Mazibuko,
who was issued a regulation 7
permit
[4]
in respect thereof, as
a tenant of the Municipality. It is also clear that such tenancy was
formally cancelled on 31 March 1981,
after the death of Miss Mazibuko
the
previous year.
The reasons for such cancellation are not necessarily relevant for
present purposes, save to state that it was always open to the
landlord (Municipality) to terminate, for amongst others, non-payment
of rental, as alluded to earlier. When that happened, Mr
Theophilus
Dladla (“Dladla”) (first respondent) was then allocated
the property.
[11]
Dladla and his family continued to stay in the property, still as a
tenant, having been issued
with a regulation 7 permit in his name. In
1988 he later became aware that, as a Black person, and in accordance
with the advent
of the Black Communities Development Act
[5]
,
he could now buy the property on the basis of the 99 year leasehold
scheme. Determined to purchase the property, he duly submitted
his
application to the Municipality and such was approved on 7 July 1988,
which resulted in the conclusion of a deed of sale with
the City of
Johannesburg. This was borne out by the deed of sale which was
attached to the papers. Needless to say, after concluding
such SA, he
was not issued with the full title deed, but rather with a document
referred to as “certificate of occupation”
which
evidenced some form of ownership right in terms of the 99-year
leasehold scheme. Later in 1999, Dladla was then issued with
a full
title deed in respect of the said property. This is self-evident from
the Title Deed which is attached, reflecting Dladla
and his wife’s
(Betty Dladla) names thereon. Dladla’s wife has since passed
away and he continues to stay in the property
to date,
albeit
in the
back room since 2018 when the applicant returned to the property, an
aspect I shall return to.
[12]
The applicant is related to Dladla’s wife and this resulted in
them taking her in shortly
after her mother’s demise, as she
was still very young and they felt pity for her. A short while later
she left to stay with
her other relatives. At all material times
since 1981, until the applicant’s return for the first time in
2016, Dladla and
his family continued to stay in the property. The
applicant then laid claim to the house for the first time and argued
that it
belonged to her late mother. According to Dladla, he did not
take it seriously as he knew that he had purchased the house, and,
even prior to him being issued with a regulation 7 permit (as a
tenant) the tenancy in respect of the applicant’s mother
had
already been cancelled previously, by the landlord (the Municipality)
and in the result, as at the time of her death, she had
no legal
claim whatsoever on the said property. Needless to say, according to
Dladla, the applicant similarly could not lay any
claim to the
property.
[13]
The applicant returned again in 2017, only this time around, she
threatened Dladla that she would
“return with friends and
political comrades” to ensure that Dladla’s family is
evicted from the house. Dlaldla
maintained his position.
[14]
Undeterred, around July 2018, the applicant returned with a group of
people wearing red regalia
and claiming to belong to a political
party called the Economic Freedom Fighters (“the EFF”).
This incident was covered
in a story published in one of the local
newspapers. According to Dladla, the applicant then managed to evict
the Dladla and his
son and had their movables thrown out. He stated
further that he sought help from the police, who later informed him
that they
would not be able to assist him with what they referred to
as “a civil matter”.
[15]
Dladla later went to the Department of Human Settlements: Gauteng,
whose officials later confirmed
that, indeed according to their
records, he is still the lawful owner in respect of that property,
having followed all the necessary
and legal processes. In fact, the
municipal invoices from the City of Johannesburg, which were
attached, clearly reflects him as
the ratepayer.
Applicant’s
version
[16]
She confirms that she is the daughter of the late Elizabeth Mazibuko,
who was the holder of a
residential regulation 7 permit dated 9
October 1979 and issued in her favour by the Municipality (as the
landlord). She is the
only surviving heir of her mother.
[17]
She stayed briefly with Dladla and his wife after her mother’s
passing on and regarded
them as her guardians according to our
understanding of what the social workers informed her. She persists
with the claim that
this property belonged to her mother and as a
consequence, it should devolve into her late mother’s estate,
of which
she
is the sole heir or beneficiary. In her view, Dladla somehow
engineered and manipulated the processes resulting in him being
issued
with a Title Deed in respect of
her
mother’s property
.
She contends further that at no stage was she invited to a hearing by
the housing tribunal, as contemplated in section 2 of the
Conversion
of Certain Rights to Leasehold Act
[6]
(“the
Conversions Act) which was also incorporated into some provisions of
the Gauteng
Housing Act
[7
]
including, but not limited to
sections 20
4A
,
20
4B
,
20
4C
and
20
4D
,
in terms of which the housing department was authorised to
“adjudicate on disputed cases that emerged from the housing
bureau established for the transfer of residential properties in
terms of the Conversions Act”.
[18]
It is indeed common cause that the issue pertaining to this property
was never referred to or
adjudicated by a housing tribunal. This is
unsurprising and of no moment because, there was simply no dispute to
refer to the tribunal.
On this score, the applicant is terribly
mistaken in that, when Dladla was issued with a residential permit in
terms of regulation
7, the permit which was issued to the applicant’s
mother had already been terminated by the landlord (Municipality). At
that
stage, there was no requirement for such termination to be
referred to any tribunal whatsoever. In any event, the tribunal to
which
the applicant refers, only got established much later in terms
of the Gauteng
Housing Act, in
1998.
[19]
Beyond the applicant’s bold assertions regarding her belief
that the property belonged
to or at the very least, was allocated to
her deceased mother, on the basis of a
regulation 7
permit, as well
as the fact that to the best of her recollection, no inquiry was held
by the tribunal, she has not gainsaid the
undisputed and documented
version of Dladla. I find the applicant’s sudden return to the
property and most importantly the
claim that she now lays remarkably
opportunistic and misconceived. There is simply no legal basis
whatsoever to sustain the claim.
Resorting to self-help and employing
political means to intimidate the owner of the real right is simply
unacceptable. It is also
noteworthy that the time when Dladla and his
son were dispossessed, he was 68 years old and now 71 years old. What
he has been
subjected to offends against one’s sense of
justice, which is underpinned on the rule of law and not the rule of
man
(the latter being gender neuter).
[20]
The applicant refers to the case of
Khuzwayo
v Representative of the Executor in the Estate Late Masilela
[8]
in
support of her case. In the court
a
quo
,
Masipa J had ordered for the cancellation of a title deed that was
incorrectly issued and further ordered the transfer of the
property
back to the deceased’s estate. But for the first part of that
Order, namely cancellation of the Title Deed, t’s
he appeal was
dismissed and the part relating to the property reverting to the
deceased’s estate was replaced with the directive
that an
inquiry by the tribunal was a
prerequisite
and
further that such process had to be undertaken. Beyond that, the
Khuzwayo case is wholly distinguishable from the present one.
In this
instance, there is no doubt that the property in question
does
not, and could not, by any stretch of imagination, be held to form
part of the deceased estate
.
In fact, at the time of the applicant’s mother’s death,
she already had no title to or interest whatsoever, in respect
of the
property, her tenancy having been terminated and the
regulation 7
certificate issued to her cancelled
[9]
.
It was therefore open to the landlord (the Municipality) to deal with
the property in any manner that it deemed fit. In this instance,
the
landlord deemed it appropriate to allocate that property to Dladla
(as a tenant) and other later purchased
[10]
it, through legally permissible means, resulting in him and his wife
being issued a Title Deed. In this application, the applicant
seeks
to assail the title deed. I find that there is no merit to that
attempt whatsoever and in the result the application must
fail.
[21]
To the extent that it is asserted by the applicant that the first and
second respondent failed
to report the death of her mother to the
Master of the High Court, and to the extent that it is alleged that
the said immovable
property had to form part of her estate, I find
that firstly, there was no such obligation resting on the first and
second respondents
and secondly the property in question or any
rights attaching thereto do not form part of applicant’s
mother’s estate.
The applicant’s mother was neither the
owner of any immovable property (or, at the very least the property
in question) nor
any title or interest holder in respect of the
immovable property that was to devolve into her estate. I also find
it curious that
the applicant accepts that her mother’s tenancy
was indeed terminated by the Municipality on 30 March 1981. It is not
open
to the applicant to suggest that the onus to prove that such
termination was lawful rests on Dladla. To the contrary, this
strengthens
Dladla’s assertions that, when he was allocated
this property, similarly as a tenant, there was already
no
right which could be argued to be enjoyed by the applicant’s
mother at the time, as such a tenancy had been terminated by
a party
entitled to do so, whether rightly or wrongly, such has nothing to do
with Dladla. Even when Dladla purchased the said
property later (7
July 1988),
albeit
under some form of
phantom-ownership
,
there was absolutely no prohibition against him purchasing the
property.
[22]
I also cannot find any malfeasance as alleged by the applicant or at
all, in the conclusion of
the deed of sale between the first and
second respondent and the Municipality. Similarly and by parity of
reasoning, I do not find
that the alleged “disposal of the
property” by the officials of the third and fourth respondents
was either untoward
or unlawful.
[23]
Lastly, even though nothing turns on it, the contention by the
applicant that the first and second
respondents were her legal
guardians is unsubstantiated and not borne out by any of the
documentation on hand.
Current
occupation status
[24]
On my prompting, it was pointed out that currently the applicant is
in occupation of the main
house, while the first respondent (Dladla)
and his son are relegated to the back room in the same property. The
applicant’s
counsel did not dispute that. This is as a result
of the unfortunate and unlawful self-help to which the applicant
resorted, allegedly
with the help of some EFF members. This type of
behaviour has no place in our constitutional democracy. I leave that
aspect at
there.
[25]
For these reasons I make the following order:
Order
(i)
The application is dismissed with costs, on a party and party scale,
including the costs consequent
upon the employment of counsel.
Z
M P MAJAVU
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
09 June 2021
JUDGMENT
DATE:
11 August 2021
FOR
THE APPLICANT:
Adv B.B Ntsimane
INSTRUCTED
BY:
Baloyi- Ntsako Attorneys.
FOR
THE RESPONDENTS :
Adv L Memela
INSTRUCTED
BY:
Gcwensa Attorneys
[1]
Section 2(1)
provides as follows, " any land tenure right
mentioned in schedule one and which was granted in respect of-
(a)
any error
of or any other piece of land in a formalised township for which
township register was already opened at the commencement
of this
act, shall at such commencement be converted into ownership.
[2]
Act
number 108 of 1996
[3]
S 25(1) Property : “no one may be deprived of property, except
in terms of law of general application, and no law may permit
arbitrary deprivation of property, Housing S 26 (1): “
everyone has the right to have access to adequate housing”.
[4]
Regulation
7 of chapter 2 of the regulations governing the Control and
Supervision of an Urban Bantu Residential Area and relevant
matters.
G.N.1036 dated June 1968. Please note that Black people were
derogatively referred to as Bantu
[5]
Act 4 of 1984
[6]
Conversion of Certain Rights to Leasehold Act 81 of 1988
[7]
Gauteng Housing Act 6 of 1998
[8]
(28/2010) [2010] that a SCA 167,
[2011] ALLSA 599
(SCA) (1 December
2010)
[9]
See cancellation of tenancy document attached and duly signed by the
superintendent and stamped 30 March 1981
[10]
Total price paid by Dladla was R837.05 as per the document titled
sale advice/home ownership and confirmed in the deed of sale
agreement concluded between Dladla and an official of the deed
middle City Council, the 4th respondent's predecessor, Mr Godfrey
Maringa