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[2018] ZAFSHC 124
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Moshodi and Others v Sebotsa and Others (2596/2017) [2018] ZAFSHC 124 (14 August 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2596/2017
In
the matter between:
LEKHETHO
JACOB
MOSHODI
1
st
Applicant
MAMOKETE
RUTH
MOSHODI
2
nd
Applicant
and
STEPHEN
TEFO SEBOTSA
1
st
Respondent
JUDITH
MOLEBOHENG
SEBOTSA
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPAILTY
3
rd
Respondent
THE
REGISTRAR OF DEEDS BLOEMFONTEIN
4
th
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
5
th
Respondent
FOR
COOPERATIVE GOVERNANCE, TRADITIONAL
AFFAIRS
AND HUMAN SETTLEMENT, FREE STATE
PROVINCE
HEARD
ON:
28
JUNE 2018
JUDGMENT
BY:
LEFENYA,
AJ
DELIVERED
ON:
14
AUGUST 2018
INTRODUCTION
[1]
This is an application arising from a dispute over ownership of
land described as Erf [...] Ratau, Thaba Nchu district,
Free
State Province (the Property). The 1
st
and 2
nd
applicants are married to each other in community of property. The
applicants asked for relief in the following terms;
1.
The First
and Second Respondents are ordered to take all steps necessary to
cancel the title deed under title deed reference
T20084/2011
which
has been mistakenly transferred and registered in the names of the
First and Second Respondents on 28 November 2011and which
is held
under the care of the fourth respondent for the property described
as;
ERF [...] DISTRICT THABA
NCHU, PROVINCE FREE STATE IN EXTENT, 1083 (ONE ZERO EIGHT THREE)
SQUARE METRES HELD BY DIAGRAM DEED: T20084/2011
(hereinafter referred as
“the property”);
2.
In the
alternative to paragraph 1
supra,
the
First and Second Respondents are ordered to take all the necessary
steps to deregister the transfer and/ or registration of
the property
under the title deed number T20084/2011 which has been mistakenly
transferred and registered in the names of the First
and Second
Respondents on the 28 November 2011 and which is held under the care
of the Fourth Respondent;
3.
The
Registrar of The Honourable Court is authorized and/or ordered, in
the event that the First and Second Respondents refuse /
fail to give
effect to paragraph 2
supra
,
to sign all documents necessary on behalf of the First and Second
Respondents to give effect to paragraph 1
supra;
4.
The Fourth
Respondent is authorized and/ or ordered to cancel the title deed
registered and held in the names of the First and Second
Respondents
under the deed reference number T20084/2011 for the property,
alternatively to deregister the transfer and/or registration
of the
property under title deed reference number T20084/2011 which has
mistakenly been transferred and registered in the names
of the First
and Second Respondents on 28 November 2011, and to transfer and/or
register the property in the names of the First
and Second
Applicants, alternatively to transfer and or register the property
back to its original owner, namely the Provincial
Government of the
Free State.
5.
The First
and Second Respondents to be ordered to pay the costs of this
application;
6.
The Third,
Fourth and Fifth Respondents to be ordered to pay the costs of this
application if opposed by the Third, Fourth and Fifth
Respondents;
7.
Further
and/ or alternative relief.
[2]
The Third, Fourth and Fifth Respondents are joined in as they may
have an interest in the matter and no cost order is sought
against
them unless if they oppose the application. Naturally the Third,
Fourth and Fifth Respondents did not oppose this application.
FACTS
[3]
In their affidavits, the first and second applicants stated that
together with their children, they have stayed in the property
since
1982. According to the applicants they are therefore the owners
of this property and have since built a house which
is the family
home.
[4]
The first applicant avers that the property was initially allocated
to a certain Ms. Violet Lamoen. Thereafter the same property
was
subdivided into 4 pieces of land, whereby one fourth was allocated to
him by Violet Lamoen and the Barolong Boo Seleka Traditional
Council.
[5]
The applicants’ arguments is that the allocation of the
property to them has provided them with explicit permission to
occupy
the property which in turn created a right of ownership over the
property and subsequent right to lease, sell and or transfer
the
right over the property to the third person. It is in this permission
to occupy the land that the applicants claim reasonable
expectation
to register the property in their names.
[6]
Several annexures in support of the above have been attached to the
applicants’ affidavits, amongst these receipts of
payment of
levies as proof of residing in the property.
[7]
The 1
st
and 2
nd
respondents are also married to each other in community of property
and argued that they are the lawful owners of the property.
According to the first and second respondents, they were granted
permission to occupy the property in question in 2005 by the Barolong
Local Authority. In support of this the first and second respondents
submitted a title deed with number
T20084/2011
in
which the property has been registered and transferred in their names
on the 28 November 2011. They have further submitted a
permission to
occupy the land.
[8]
It is common cause that the first and second respondents reside at
number 2504 Unit 1 Thaba Nchu. They have never at any stage
occupied
the property in question.
[9]
The applicants’ submission is therefore that the property has
been mistakenly transferred and registered in the first
and second
respondents’ names and that this transfer and registration
therefore interfere with their rights to use and enjoy
the property.
It is therefore on this premise that the applicants asked for relief
sought in their notice of motion.
ISSUES
[10]
In his affidavit, the 1
st
applicant stated that he was informed by Kgosi M Setlogelo, who is
the chairperson of the Barolong boo Seleka Traditional
Council,
that the property was mistakenly transferred and registered into the
names of the 1
st
and 2
nd
respondents. The respondents however disputed this and claim
that they have rightfully obtained the tittle deed and further
disputed that the plaintiffs have been in an uninterrupted occupation
of the land. The applicants therefore allege possession and
enjoyment
of the property whilst the first and second respondents claim
transfer and registration through the title deed.
[11]
It is common cause that on 2 occasions, the first and second
respondents had applied to the Magistrate Court in Thaba Nchu
for the
eviction order against the applicants from the property.
[12]
I do not think that it will assist us in any way to get to the full
details surrounding the eviction orders as there are allegations
and
counter allegations and withdrawals of some applications at some
stage.
[13]
The issue therefore to be determined is whether the applicants are
rightfully occupying or residing in the property, and if
so, if it
was therefore wrongly registered and transferred into the first
and second respondents’ names and therefore
the title deed
mistakenly issued in the names of the 1
st
and 2
nd
respondents.
THE
LEGAL PRINCIPLES
[14]
The rights to property and housing are enshrined in sections 25 and
26 of the Constitution of the Republic of South Africa,
Act 108 of
1996 respectively.
[15]
The registration and transfer of rights in land and other immovable
property, on the other hand is regulated by the
Deeds Registries Act
47 of 1937
.
[16]
It is trite that the most important and effective way of proving
ownership of property is the production of the authentic documents
of
title over the land. See
Dlamini
v Lipholo
[2010] ZAFSHC
54
27
May 2010.
[17]
A person can therefore also successfully claim ownership by proof of
long possession and enjoyment of the property. This may
be by way of
evidence whether oral or documentary.
APPLICATION
OF THE LAW TO THE FACTS
[18]
It is trite that in most instances the production of authentic
documentation of title over land override the occupation or
possession and enjoyment of the property. This is so because
the occupation and enjoyment could have been illegal and mostly
the
evidence in this regard will be hearsay. Equally courts should not
just easily accept the proof by way of production of title
deed.
[19]
Counsel for the applicant’s submission in this regard is that
mere production of title deed is not sufficient and further
argued
that there is a possibility that the property was mistakenly
registered in the names of the first and second respondents.
[20]
The first respondent, on the other hand, to contended that the
production of receipts of payment of levies is not proof of
titled
ownership. I agree. This however in my opinion cannot be ignored as
it is one way of proving occupation of land which in
ownership
dispute has to be taken into consideration. The allegations by the
applicants, therefore, that they occupied the land
since 1982 and
documents in support thereof must be taken into account.
[21]
There is also a serious allegation by the applicants that the
respondents at some stage offered to sell the property back to
the
applicants. According to the applicants they then refused to buy
their “own” property back. There is no clear explanation
from the respondents’ affidavits why the first application for
eviction in the Magistrate Court was withdrawn. These allegations
in
my opinion are serious and deserve to be taken into consideration.
Another aspect that raised concern is failure by the respondents
to
submit documents that were sought in terms Prevention of Illegal
Eviction Act 19 of 1998 after the Court granted them an opportunity
to do so.
[22]
The first respondent, further, alleged that the property was
physically pointed out to him. This, according to him, was done
before the Barolong Local Authority issued him with the permission to
occupy. He further alleges that, at that stage of pointing
out, the
property was vacant.
[23]
The Barolong Local Authority, as the first respondent alluded to, is
the current Barolong Boo Seleka Traditional Council. This
is the very
body that in an affidavit by Kgosi Setlogelo supported the
applicants’ occupation of the property. It is the
very body in
Kgosi Setlogelo’s affidavit, that claimed that the issuing of
the deed of transfer to the first and second respondents
was wrong.
Therefore if indeed it is the Barolong Local Authority that granted
the first and second respondents the permission
to occupy the
property, and if it is its member that pointed out the vacant land to
the first respondent, I cannot see any difficulty
by the respondents
to obtain affidavit to that effect. Just as the applicants managed to
obtain the affidavit from their member,
Kgosi Setlogelo, the first
and second respondents could have also done the same. It was
therefore, in my opinion, imperative of
the respondents, having
alleged this, to obtain the necessary affidavits from such persons to
confirm issuing of the permission
to occupy and to state when was the
land pointed out to the first respondent and prove indeed if it was
vacant at the time.
[24]
The first respondent’s allegation that the applicants never
occupied the property in question is therefore in my opinion
bare and
without any merit. He alleged that the applicants have not been in
occupation of the land as they allege, but failed to
submit any
affidavit stating where the plaintiffs stayed since 1982 or at any
stage thereafter.
FINDING
[25]
I am therefore satisfied that the applicants have established on the
balance of probabilities that they have been staying in
the property
for a considerable long period of time prior to the property being
registered and transferred into the first and second
respondents’
names. I found no evidence to the contrary as the first and second
respondents failed to dispute this.
The applicants clearly
cannot understand how the property was registered and transferred
into the names of the first and second
respondent as they have
occupied the land since 1982. If one reads between the lines, it is
evident that the applicants suspect
that there has been foul play or
at least some flaws in the registration and the granting of the said
title deed to the first and
second respondents. These
circumstances need to be taken into account.
[26]
Therefore, in the absence of affidavits in support of the legitimate
granting of the title deed to the first and second respondent,
or
proof of authenticity thereof, I cannot say I am persuaded that the
respondents have effectively challenged the applicant’s
claim.
As stated in
Dlamini
v Lipholo
supra,
“
Mere
production of a Deed of Transfer in circumstances such as in this
matter does not justify the finding that the respondents
are true
owners of this property…”
[27]
Had the respondents provided the necessary affidavits from the
relevant authorities in support of their claims as stated above,
I
might be persuaded to make a different finding. It is therefore a
difficult task, just on face value, and taking the applicants’
submissions into account, to accept the authenticity of the title
deed no T20084/2011. Having said that, still, the applicants’
allegations are also not sufficient to reject the authenticity of the
title deed that was produced by the first and second respondents.
[28]
In the circumstances I cannot say that I am satisfied that any of the
parties successfully established any legal right which
grants them
any authority to exercise ownership over the property. I am therefore
of the opinion that this warrants proper and
further investigations
and determination by the relevant authorities as to who are the
rightful persons to possess or reside in
the property or who are the
rightful owners thereof.
[29]
Therefore prayer 4 of the plaintiff is in my opinion a fair and
equitable solution. As correctly submitted by Counsel for the
applicants, there will be no prejudice to any of the parties should
prayer number 4 be granted.
[30]
ORDER
Accordingly
the following order is made;
1.
The Fourth
Respondent is authorized and/or ordered to cancel the title deed
registered and held in the names of the First and Second
Respondents
under title deed reference number T20084/2011 for the property,
alternatively to deregister the transfer and or registration
of the
property under title deed reference number T20084/2011 which has been
mistakenly transferred and registered in the names
of the First and
Second Respondents on 28 November 2011 and to transfer and or
register the property in the names of the first
and Second
Applicants, alternatively to transfer and or register the property
back to its original owner, namely the Provincial
Government of the
Free State.
2.
No order is
made as to costs.
________________
B.
LEFENYA, AJ
On
behalf of the applicant: Adv. O.O. Molateli
Instructed
by:
Matlho
Attorneys
Bloemfontein
On
behalf of the respondents: Adv. R.J. Nkhahle
Instructed
by:
Motaung
Attorneys
Bloemfontein