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[2019] ZAKZDHC 32
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Ngcobo and Others v Mathonsi and Others (685/2017) [2019] ZAKZDHC 32 (16 May 2019)
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
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
REPORTABLE
CASE
NO: 685/2017
In
the matter between:
THANDI
FLORENTINE NGCOBO
FIRST APPLICANT
MAYVIS
THEMBI MATHONSI
SECOND
APPLICANT
FRIEDA
THEMBI MATHONSI
THIRD
APPLICANT
and
ANGEL
BONGIWE MATHONSI
FIRST RESPONDENT
ETHEKWINI
MUNICIPALITY
SECOND
RESPONDENT
THE
REGISTRAR OF DEEDS FOR
THE
PROVINCE OF KWAZULU-NATAL
THIRD
RESPONDENT
MASTER OF THE HIGH
COURT
FOURTH RESPONDENT
JUDGMENT
DATE
DELIVERED: 16 MAY 2019
RADEBE
J
Introduction
[1]
This is an application whereby the three applicants seek the
following order:
‘
1.1. that the transfer of
property described as […] N. Road, KwaMashu, KWAZULU-NATAL
(“the property”) into the
name of the First Respondent,
which was effected by the Second Respondent and/or the Third
Respondent be cancelled and set aside;
1.2. that the First Respondent is
forthwith interdicted and restrained from selling, alienating and or
causing the property to be
transferred into the names of any other
person pending finalisation of this application;
1.3. that the Fourth Respondent
registers the property into the name of the Estate Alois Mathonsi
(“the deceased’s estate”);
1.4. that the Second, Third and Fourth
Respondents are directed to do all that is necessary to give effect
to paragraph 1 and 2
above;
1.5. that the First Respondent be
ordered to pay the costs of this application;
1.6. Further and /or alternative
relief.’
In
effect, the issue is the lawfulness of the transfer, with reference
to the provisions of s 2 of the Conversion of Certain Rights
into
Leasehold or Ownership Act No. 81 of 1988 (‘the Act’).
[2]
The first respondent opposed the application. The second
respondent is not opposing the application and has recorded
that the
transfer was done without the consent of other family members.
Background
of the Matter
[3]
The first applicant and the first respondent are biological sisters.
The second applicant was, what would be loosely referred
to as, the
foster child of the Late Alois Mathonsi (‘the deceased) and his
predeceased wife. During his lifetime and
in 1966, the deceased
acquired the property and was granted permission in terms of the
Proclamation R293 of 1962, which entitled
him to a Certificate of
Occupation (the certificate) in respect of the property, where he
resided with all his children, including
the applicants and the first
defendant. The certificate was issued on 18 September 1966.
Other additional children
were introduced and added onto the
certificate. The deceased died intestate on 9 March 1990 before
he could convert the Permission
to Occupy into a Title Deed. He
was survived by his six children and three grandchildren all of whom
are listed in the certificate.
As at the time of the launching
of this application, the only surviving biological children of the
deceased seem to be the first
applicant as well as the first
respondent. The deceased’s estate was not reported to the
Master of the High Court (the
fourth respondent). As to who the
correct next-of-kin is, can be determined by the Master of the High
Court once the estate
of the deceased is dealt with at the proper
forum.
[4]
As at 2009, the first respondent was the occupant of the property.
She alleges that as a result of the fact that she was the
person
responsible for the upkeep of the property, and the payment of rates
and taxes, she advised the second respondent accordingly.
She
then ‘acquired’ the property on this basis.
[5]
The Deed of Grant reflects that during about 2008, the first and
second respondents entered into a private Purchase and Sale
agreement, the subject matter of which was the property, with the
sale price being a sum of R3890. At that time, the first respondent
was residing at the property after going through a divorce.
Transfer of the property was effected by the third respondent
on 27
July 2009, by virtue of the Deed of Grant No. TG 027408/09.
[1]
The first respondent did nothing to inform the applicants that she
was then the ‘owner’ of the property. She
hid this fact
from them.
[6]
It was only in 2016 that the applicants, fortuitously, discovered
that the first respondent had caused the property to be transferred
into her name as the sole owner. This set on a series of
events, which included family meetings as well as with the second
respondent.
[7]
On 7 January 2017, a follow-up family meeting was held with a view to
enquiring as to how the first respondent got the property
transferred
into her name but the latter denied any knowledge of such transfer
and she insisted that the property belonged to her.
On 20
January 2017, the second respondent convened another meeting on the
same issue. However, the first respondent refused
to attend.
The official representing the second respondent was one Sipho Ngema
of the Housing Department. The meeting
proceeded without the
first respondent.
[8]
The outcome of the investigations is encapsulated in the email dated
20 June 2018, wherein the second respondent confirmed that
the
transaction resulting in the transfer of the property was done
without the consent of other family members.
[2]
Evaluation
[9]
Section 2 (1) of the Act provides:
‘
2. Inquiry
as to rights of Leasehold:-
(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 situated
in a formalised township for which a township register
has been opened, ownership with regard to such sites.’
The
prescribed manner of substitution upon the death of the deceased is
detailed in what is called ‘PROCEDURE NOTES’
attached as
SP
1
to the Replying Affidavit, which prescribes that in
the case where the permit holder and the spouse are both deceased,
then the
property is to be transferred to the deceased’s
estate.
[10]
The deceased was granted permission to reside on the property by
virtue of a certificate of occupation. His biological children
include the first and third applicants as well as the first
respondent. When the deceased died, the conversion of the
property
into ownership had not yet taken place. Somehow, after
the deceased’s death, the first respondent managed to get the
ownership of the property registered into her own name instead of the
name of the deceased’s estate. This was done
without the
knowledge of any of the other interested parties listed in the
certificate of occupation, who include the applicants.
[11]
The first respondent’s ground of opposition was that she is,
and was, the only person residing on the property since
2007, and
that she pays rates and taxes, and that the applicants have never
shown interest in the property. She does not
say how exactly it
can be said that she complied with the second respondent’s
policy guidelines.
[12]
Whether other members of the family showed interest or paid rates is
not the issue which s 2 of the Act focuses on. The
aforesaid
section requires that the Director-General identify the person who is
in occupation of the property and
after holding an inquiry
,
declare the right of ownership.
(my emphasis
)
[13]
In
Khuzwayo
v Representative of the Executor in the Estate of the late
Masilela
[3]
it was held that the Act requires such inquiry to be conducted before
a declaration is made that a site permit (such as the
one held by the
deceased) is converted into ownership, before transfer is affected to
the occupier.
[14]
It is common cause that the first respondent was never at any stage
of her life a holder of a site permit in respect of the
property; nor
was she a holder of the certificate of occupation in relation to the
property, and that no inquiry as envisaged in
s 2 of the Act was ever
held by the Director-General.
[15]
In
Nzimande
v Nzimande & another
[4]
it was held that holding such inquiry guarantees a fair and an
impartial process in determining who of the contesting parties as
to
who of the persons listed in the Certificate of Occupation qualify to
acquire the ownership of the property. In that case the
Court held
that:
‘
[48] . . . Until
the certificate is set aside by a Court in proceedings for judicial
review. It exists in fact and it has legal
review, it has legal
consequences that simply cannot be overlooked
.’
[16]
In this matter, the certificate has never been set aside by a court
in proceedings for judicial review. It remains valid
and the
legal consequences flowing from it cannot be simply ignored. It
is the underlying document upon which this application
is premised.
It is the duty of the Director-General to consider all the
contentions of the parties (who are the applicants
and the first
respondent).
[17]
In the absence of such inquiry and of the participation of the
applicants, it cannot be said that the ownership of the property
was
lawfully awarded to the first respondent.
[18]
The first respondent was at no stage the holder of the certificate,
of which the deceased remained the holder. Even if
it were to
be said that she is an heir of the deceased, she is not the sole heir
and her rights to inheritance do not supersede
those of the co-heirs
and of those that are entitled to inherit
per stirpes
.
[19]
Counsel for the first respondent concedes that s 2 of the Act
requires that an inquiry be held in order to determine who should
be
granted ownership. Such grant of ownership can only flow from
interstate succession and not from the so-called Purchase
and Sale
Agreement reflected in the Deed of Grant.
[20]
Section 2 of the Act requires an inquiry to be conducted by the
Director-General before a declaration is made that a permit
is
converted to full ownership. The second respondent appears to
have simply ‘sold’ the property to the first
respondent.
The certificate reflects names of several beneficiaries and not only
the name of the first respondent.
There is no basis for the
second respondent to have preferred the first respondent as the
person entitled to the property and to
‘sell’ same to her
without having first complied with the Act.
[21]
It is my view that the deceased’s estate is probably entitled
to acquire ownership, but then only after a proper inquiry
has been
held and a declaration is made by the Director-General, converting
the certificate to occupy into full ownership.
Thereafter the
process of intestate succession under the direction of the fourth
respondent be followed to determine who the intestate
heirs entitled
to succeed the deceased are. Only then can the third respondent
effect registration of transfer of the property.
Costs
[22]
In the premises, the first respondent has no right to the ownership
of the property. She knows, as evidence shows, that
she
wrongfully acquired ownership of the property. Therefore she
ought not to have even opposed this application. Her
conduct
resulted in costly litigation. She therefore has to bear the
costs of this application. The applicants have,
however, not
asked for punitive costs. It follows that party and party costs
are in order.
Conclusion
[23]
I therefore come to the conclusion that an order, which is slightly
different from the order prayed in the Notice of Motion,
is made as
follows:
(a) The transfer to the
First Respondent of the property described as:
ERF […] KWAMASHU –
G
REGISTRATION DIVISION FT
PROVINCE OF KWAZULU-NATAL
IN EXTENT 327 (THREE
HUNDRED AND
TWENTY-SEVEN) SQUARE
METRES
As indicated on General
Plan SG NO. 1110/1997 which land is held by the Grantor by virtue of
Certificate of Consolidated Title No.TG10077/06;
(“the
immovable property”)
is hereby set aside;
(b) The third respondent
is ordered to cancel the Deed of Grant No. TG027408/09 in respect the
immovable property.
(c) The Director-General
for the Department of Housing, KwaZulu-Natal Province, is directed to
hold an inquiry in respect of the
immovable property, pursuant to the
provisions 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
certificate of occupation in respect of the immovable property is the
owner thereof.
(d) The fourth respondent
is directed to finalise the opening of a deceased’s estate file
with a view to determining the rightful
heir(s) of the Estate Late
Alois Mathonsi.
(e) The first respondent
is ordered to pay costs of the application.
__________________
RADEBE J.
DATE
OF HEARING: 14 MARCH 2019
DATE
OF JUDGEMENT: 16 MAY 2019
COUNSEL
FOR APPLICANT: ADV. E. S. CELE
INSTRUCTED
BY: VUMASE SS INC.
COUNSEL
FOR THE RESPONDENT: ADV. L. MAUNUTLALA
INSTRUCTED
BY: KEKANA HLATSHWAYO RADEBE ATT.
[1]
Indexed Record, 23 p. 14 & 15 Founding Affidavit paragraph
23 and p. 23 Annexure P003 (Deed of Grant).
[2]
Indexed Record, p. 73 Annexure “RL2” to the
Applicant’s Replying Affidavit.
[3]
Khuzwayo v Representative
of the Executor in the Estate of the late Masilela
[2011] 2 ALL SA 599 (SCA).
[4]
Nzimande v Nzimande &
another
2005 (1) SA 83
(WLD) at 97A.