About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 959
|
|
Mphirime v Pouane and Others (59991/2015) [2017] ZAGPPHC 959 (29 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 59991/2015
29/3/2017
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO OTHER JUDGES:
YES
/NO
(3) REVISED: YES/NO
In the matter between:
MOHANUWA
ELISA MPHIRIME
Applicant
And
GEORGE
PUOANE
First
Respondent
EXECUTOR IN THE ESTATE OF THE LATE
MOTHOGOANE ABIA PUOANE
THE
DIRECTOR-GENERAL OF DEPARTMENT OF,
Second
Respondent
HUMAN
SETTLEMENTS, GAUTENG PROVINCE
MEC OF DEPARTMENT OF HUMAN
SETTLEMENTS,
Third
Respondent
GAUTENG PROVINCE
THE REGISTRAR OF DEEDS
(PRETORIA)
Fourth
Respondent
JUDGMENT
SENYATSI AJ
[1] This is an application in terms of which the applicant seeks the
court for the following order directing:-
1.1 that the Registrar of Deeds, Pretoria who is cited as the fourth
respondent, to cancel Title Deed No.: T118476/2003, which
deed holds
property known as Erf 6970 Stretford Extention 4 Township which is
currently in the name of Mothogoane Abia Puoane;
1.2 that the Registrar of Deeds, Pretoria to, after cancellation of
Title Deed T 118476/2003, register the ownership of the property
in
the name of the applicant.
1.3 As an alternative to 1.2 above that after cancellation of the
Title Deed No.: T118476/2003, the properly should revert to
its
original owner, Provincial Government of the Province of Gauteng,
represented by the third respondent, to enable the second
respondent
to comply with the adjudication order under case number 58270 of 25th
September 2002.
1.4 that a costs order be awarded to the applicant against any party
who opposes the application.
[2] All the cited
respondents with the exception of the first respondent, who is the
executor of the estate of the late Abia Puoane
whose relevance to the
application will become clear in the judgment, did not oppose the
application.
[3] The applicant has been
in possession of and occupies Erf 6970 Stretford Extension 4 township
in Orange Farm, which is a property
established in terms of
Government's Reconstruction and Development Programme housing. For
the sake of simplicity, this property
will be referred to as the RDP
house. She has been inoccupation of the RDP house since 22 July 2001.
[4] The permit holder of
the RDP house was one Mothogoane Abia Puoane ("Puoane'') who was
the father of the first respondent
and has passed away.
[5] Puoane and the
applicant concluded a donation agreement by way of affidavit in terms
of which the rights to occupy the RDP property
were transferred to
the applicant during 2001.
[6] It is important to
note that the property was undeveloped when the applicant took
occupation. It consisted of a shack. The applicant
effected
improvements on the property by building a 4 roomed house with a
single garage and partially walled boundary fence.
[7] After the conclusion
of the donation agreement, the applicant and Puoane, reported the
agreement to the local council offices
and requested registration of
the property in her name. They completed a Form 3, which was part of
the papers in support of her
application. They were informed by the
council offices that the process of issuing the title deed would take
some time due to the
volume of applications that were being dealt
with at the time. They were advised that they would be informed when
the title deed
was ready for collection. This process took place
during March 2002.
[8] During the same year,
the applicant received an invitation for hearing at Housing
Adjudication to attend on 25 September 2002
to determine the rightful
owner of the property. There was no dispute between the applicant and
Puoane and the invitation came
as a surprise to her.
[9] She attended the
hearing and Puoane did not attend as he felt that such attendance was
not necessary as there was no dispute
on who the rightful owner of
the RDP house was. The Housing Adjudication Committee held that the
Puoane was, based on the local
council file, the lawful permit holder
of the RDP house and that he had transferred lawfully his right,
title and interest to the
applicant. The decision was that the RDP
property was allocated by default as of 9 October 2002 to the
applicant. She was advised
to wait for the title deed which never
came.
[10] The applicant
received a call note addressed to Puoane during October 2005 to
collect the title deed from the local council
offices of the City of
Johannesburg and this was despite the ruling by the Housing
Adjudication Committee of the third respondent,
that the applicant
had received lawful transfer of right, title and interest of the RDP
house.
[11] On attendance at the
third respondent's offices, she was again advised to bring Puoane,
despite the ruling by the Housing Adjudication
Committee during
October 2002. She brought Puoane to the offices of the third
respondent on a later date and he confirmed that
the title was
wrongly registered in his name and it should have been in the name of
the applicant. I must pause here to say that
if the evidence of the
first respondent is acceptable, it is highly unlikely that this took
place 1n October 2005 as Puoane was
already suffering from stroke
attack.
[12] She followed up the
progress of correcting the error without any success and during 2008
when she confronted the official of
the third respondent, she was not
provided with a proper explanation for the delay. The applicant
claims that when she approached
Puoane to sign rectification papers
during 2008, she was upset as he had business to run.
[13] The applicant claims
in her papers that subsequent to that meeting, Puoane moved to
Pietersburg Polokwande and became difficult
for her to have further
contact with him. She later learned that Puoane passed away in 2013
and advised the Housing Department
on the recommendation of the
Housing Department, she made contact with the family of Puoane who
advised her that no executor had
been appointed.
[14] She has continued to
live in the RDP property and her hopes were shattered when she
received a demand letter from the first
respondent on 29 June 2015 to
vacate the property as she had failed to take ownership thereof. The
third respondent on being approached
for assistance washed its hands
in spite of the ruling by the Housing Adjudication Committee that
settled the matter on 9 October
2002. As a consequence she had no
option but to approach this court with the necessary relief.
[15] The first respondent
contests the donation and avers in his demand letter that the
applicant should vacate the property as
she failed to take the
necessary steps to have the property registered in her name. He
furthermore disputes the donation evidenced
by the affidavit in
support of the application as well as the Housing Adjudication
Committee ruling.
[16] To support his
contention, he claims that the handwriting on the affidavit as well
as the signature are not that of Puoane
and furthermore that in fact
there was a sale agreement in terms of which the applicant had to pay
Puoane R5 000.00 for the purchase
of the property. Furthermore, the
first respondent claims that it is highly unlikely that Puoane
attended any of the meetings referred
to in the evidence adduced by
the applicant in her papers as Puoane suffered a stroke during 2005.
He does not take this court
in his confidence by providing hard
evidence in support of his claim on the illness. He made an attempt
to submit copies of the
medical records, which were objected to by
counsel for the applicant. The court refused the request.
[17] As a consequence, the
third respondent avers that the application should be dismissed.
[18] Puoane told the first
respondent that of the R5 000.00 purchase price of the RDP property,
only R2 000.00 deposit was paid
by the applicant. In her replication
to this claim, the applicant contended that she paid R5 000.00
gratuity to Puoane as a gesture
of goodwill as Puoane had provided
her with accommodation in the times of need and that the payment was
never considered a purchase
price.
[19] The issues to be
determined can be summarised as follows:
19.1 Whether or not there was a valid agreement between Puoane and
the application to donate the RDP property.
19.2
Whether or not the ruling by the Housing Adjudication Committee was
binding and enforceable.
[20] I am of the view that Puoane and the applicant concluded a
legally binding donation agreement as evidenced by the affidavit.
Puoane had the full capacity during 2001 when the donation agreement
was concluded, to enter into an agreement with the applicant.
No
evidence was adduced on papers before this court that he could not
conclude a legally binding agreement in terms of which his
rights,
title and interest on the permit of the RDP house could be
transferred.
[21] I find no reason to
doubt the evidence adduced before this court and supported by the
relevant papers such as the permit which
annexure "C", the
donation affidavit referred to as "O"; pictures of the RDP
property referred to as '·E";
Adjudication Committee
decision referred as "G" and the demand letter by the first
respondent referred to as "H".
[22] The first respondent
made an attempt to persuade this court to believe that an affidavit
that was attested to on 1 July 2001
was not signed by Puoane. This
argument cannot, in my view, be sustained. No attempt was made in his
replying affidavit to demonstrate
what Puoane's handwriting was
supposed to be. In any event, the person who signs an affidavit does
not have to be the author thereof.
What is critical is that the
commissioner reads the content thereof to him and for the deponent to
confirm the contents and take
an oath on the contests.
[23] Section 6(1) of the
Deeds Registry Act 47 of 1937 provides as follow:
“Save as is otherwise provided in this Act or in any other law
no registered deed of grant, deed of transfer, certificate
of title
or other deed conferring or conveying title to land, or any real
right in land other than a mortgage bond, and no cession
of any
registered bond not made as security, shall be cancelled by a
registrar except upon an order of court.”
[24] Section 24A()1(2) of
Gauteng Housing Act 6 of 1998 provides as follows:
"(1) The Department is authorised to adjudicate on disputed
cases that emerge from Housing Bureaus established for the transfer
of residential properties by Premier's Directives in terms of section
171 of the Local Government Ordinance 1939 (Ordinance No
17 of 1939)
and disputed cases that emerged from the transfer of the Conversion
of Certain Rights into Leasehold or Ownership Act,
1988 (Act no 81 of
1988).
(2)
The MEC shall ensure that the transfer of residential properties to
individuals determined to be lawful beneficiaries in terms
of this
Act.
(3)
The Department shall deal with disputed cases through adjudication
and appeal panels established in terms of section 24B."
[25] It is not disputed
that the applicant and Puoane did approach the local council offices
and the Department of Housing represented
by the third respondent to
give effect to the agreement. There is no explanation offered by the
second and the third respondents
for the delay in facilitating the
implementation of the Housing Adjudication Committee's decision. It
is evident from the papers
that the second and third respondents'
officials were not determined to bring this matter to finality. This
is apparent as no initiatives
from either the second or the third
respondents were forthcoming to assist the applicant to be provided
with the title deed dispute
promises made to the applicant on number
of occasions that the administrative error of issuing the title deed
in the name of Puoane
would be corrected.
[26] The administrative
decision arrived at the Housing Adjudication Commission should have
been given effect by the third respondent.
I am of the view that the
third respondent failed to discharge the obligation imposed by
section 24A(2) of Gauteng Housing Act
6 of 1998 and in the process
the applicant's rights to RDP house were prejudiced. The applicant
has had no option but to approach
this court for redress at great
costs to her and that is unfortunate. The third respondent has filed
notice to abide by the decision
of this court and consequently no
order of cost will be made against him.
[27] It is uncontroverted
that the second and third respondents will not on their own have the
locus standi to have the title deed
issued to Puoane cancelled. but
in my view, they could have easily facilitated appropriate steps to
have the administrative error
corrected with no need for the
applicant to initiate these proceedings.
[28] The first respondent
contended, as already stated before, that Puoane could not have
donated the RDP property and more importantly
even attended the local
council offices and the offices of the third respondent after claims
in his replying affidavit that Puoane
allowed the applicant to stay
on the RDP house that had been sold for R5 500.00 to the applicant by
Puoane and that the applicant
paid a deposit of R2 000.00 implying
that the balance of R3 500.00 was never paid. This claim had not been
supported by any evidence
and stands to be rejected out of hand.
[29] The first respondent
further claims in his replying affidavit that Puoane became homeless
after selling his RDP property and
was later taken to Ga-Marishane
near Jane Furse. The first respondent goes on furthermore to state
that shortly after Puoane's
stay at Ga-Marishane, he suffered a
stroke twice and the last stroke attack rendered him incapable of
managing his own affairs.
The first respondent did not provide
evidence in support of this claim. It is not made clear on the first
respondent's papers when
Puoane went to live in Ga-Marishane, when
the first and the stroke attacks took place. It is consequently
impossible for the court
to make any finding on these claims.
[30] What has been proved
by the applicant and supported by various annexures to her founding
affidavit is that indeed there was
an agreement, both herself and
Puoane attended the offices of the local council and of the third
respondent to give effect to the
agreement. Even if the court accepts
that Puoane did suffer strokes as averred by the first respondent it
is lightly unlikely that
when the agreement was concluded, Puoane did
not have the necessary capacity to conclude the agreement. It is also
interesting
to note that the first respondent did not take this court
in his confidence about the identity, if any, of the curator bonis
that
was appointed to manage Puoane's affairs.
[31] The applicant is, in
my view, justified to conclude that the main reason the first
applicant sent a demand letter to attempt
to evict her was driven by
greed. In my view, the first respondent has failed to refute the
evidence on papers that a valid agreement
was concluded between the
applicant and Puoane and that the Housing Adjudication Committee
decision was irregular.
[32] As a consequence, the
application by the applicant sl1ould be allowed.
ORDER
The following order is
made: -
1. Title Deed Number T118476/2003 which holds property known as Erf
6970 Stretford Extension 4 Township which is currently in the
name of
the late Mothogone Abia Puoane is hereby cancelled;
2.
The fourth respondent, the Registrar of Deeds, Pretoria is directed
to cancel the said Title Deed and after cancellation thereof
register
the ownership of the property evidenced by the said Title Deed in the
applicant's name within 45 court days from the date
of this order.
3.
The first respondent is ordered to pay the taxed costs of this
application on the party and party scale.
ML SENYATSI
ACTING JUDGE OF THE GAUTENG
DIVISION OF THE HIGH COURT
PRETORIA
Date of
Judgment: March
2017
Counsel for the
Plaintiff: Adv.
L. MEMELA
Instructed
by: GCWENSA
ATTORNEYS
Counsel for the Respondents: INPERSON