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[2017] ZAFSHC 144
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Motlatsi v Director-General of the Free State Province and Others (2960/2016) [2017] ZAFSHC 144 (31 August 2017)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
number: 2960/2016
In
the matter between:
HLORISO
JOYCE MOTLATSI
APPLICANT
and
THE
DIRECTOR-GENERAL OF
THE
FREE STATE PROVINCE
FIRST RESPONDENT
THE
ASSISTANT DIRECTOR:
LAND
TENURE SUB-DIRECTORATE
SECOND RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL:
LOCAL
GOVERNMENT HOUSING
THIRD
RESPONDENT
THE
REGISTRAR OF DEEDS
FOURTH RESPONDENT
MASTER
FREE STATE HIGH COURT
FIFTH
RESPONDENT
LEHLOHONOLO
NICOLAS KHOTLE
SIXTH
RESPONDENT
CORAM:
MBHELE,
J et HEFER, AJ
JUDGMENT:
HEFER, AJ
HEARD
ON:
28 AUGUST 2017
DELIVERED
ON:
31
AUGUST 2017
[1] This is a review in
terms of Rule 53 of the Uniform Rules of Court.
[2] The Applicant seeks
an order in the following terms:
(i)
That the
First Respondent’s decision declaring the Sixth Respondent to
have been granted ownership in respect of the property
known as Erf
[...], Mangaung, Extension number : […], district
Bloemfontein, Free State Province appearing from General
Plan
L136/1984 and held under Certificate of Registered Title : T7588/1994
(herein later referred to as “
the
property”)
,
be reviewed and set aside;
(ii)
That the
First Respondent be ordered to enquire into and determine afresh who
shall be declared to have been granted ownership of
the property; and
(iii)
That the
Fourth Respondent be ordered to rectify the title deed of the
property by cancelling the transfer and registration of the
property
in the name of the Sixth Respondent.
[3]
According to the Applicant, her parents, Agnes and Elias Khotle,
occupied the property in terms of a site permit issued by the
Local
Authority as contemplated by the 1986 Regulations governing the
control and supervision of an urban black residential area
and
relevant matters promulgated in terms of Section 8 of the Black
Consolidation Act, 25 of 1945.
[4] Both Applicant’s
parents died intestate.
[5]
Apart from the Applicant, five other children of whom the Applicant
and one Isaac Musa are the only surviving siblings, were
born from
the marriage between Applicant’s late parents. The Sixth
Respondent is the biological child of one of Applicant’s
sisters, Yvonne Disebo, who passed away during December 2000.
[6]
According to the Applicant she, together with all her surviving as
well as late siblings stayed with their parents in the property
at
some stage of their lives. The Applicant moved out during 1984.
Applicant’s brother, Isaac Musa, referred to, is mentally
handicapped and have been living in an old age home since December
2007. Save for one sister, Applicant’s late siblings passed
away whilst they were still living on the property.
[7]
The Sixth Respondent has lived in the property since his birth during
1982 and only left approximately seven years ago.
[8]
During 2015 it came to Applicant’s attention that the Sixth
Respondent had acquired ownership of the property. With the
assistance of Applicant’s legal representative, it was
ascertained that the property was registered in the Sixth
Respondent’s
name during November 2008. Furthermore it appeared
that the First Respondent had, in terms of Section 4(1)(b) of the
Conversion
of Certain Rights into Leasehold or Ownership Act, 81 of
1988, declared the Sixth Respondent to have been granted ownership in
respect of the property.
[9] According to the
Applicant, at no stage relevant to this application:
(i)
was the
Sixth Respondent the holder of a site permit, certificate or trading
site permit;
(ii)
was the
Sixth Respondent the holder of rights which, in the opinion of the
First Respondent were or could be construed to be similar
to the
rights of the holder of a site permit, certificate of trading site
permit; or
(iii)
was
Applicant nor her brother Isaac ever contacted for purposes of an
enquiry to be held in terms of Section 2 of the Conversion
of Certain
Rights into Leasehold or Ownership Act, 81 of 1988 (“
the
Conversion Act
”).
[10]
Upon further investigation, it appeared that a letter of authority
was issued to the Sixth Respondent in terms of Section 18(3)
of the
Estates Act, 66 of 1995 in terms of which the Sixth Respondent were
authorised to take control of the assets of the late
Tana Agnes
Khotle, the Applicant’s deceased mother.
[11]
It further appeared from copies of Government Gazettes
published during February as well as April 2008, that the First
Respondent did indeed give notice to the effect that he was to
conduct an enquiry concerning the determination and declaration
of
rights of leasehold or ownership as referred to in Section 2(1) of
the Conversion of Certain Rights into Leasehold or Ownership
Act,
1988, in respect of the property concerned. These notices only
contained the name of the Sixth Respondent in respect of the
property
which is the subject matter in this review application.
[12]
According to the Applicant, there were no facts or evidence contained
in the record filed by the First Respondent which underpin
or
justifies the First Respondent’s decision. This according to
the Applicant, only serves to bolster Applicant’s assertion
that the First Respondent had not conducted a proper investigation
and had made a decision without applying his mind to the critically
relevant considerations and/or facts.
[13]
The Conversion Act was promulgated to provide for the conversion of
certain rights of occupation into leasehold or ownership
and for
matters connected therewith. This statute serves to achieve the
objective by providing a mechanism “
for the conversion of
the previously discretionary permits into more secure rights and the
repeal of the regulations promulgated
in terms of the Black (Urban
Areas) Consolidation Act, 25 of 1945 regulating residential, trading
and other occupancies.”
(See Satchwell J in
Phasha v
Southern Metropolitan Local Council of the Greater Johannesburg
Metropolitan Council
,
2000 (2) SA 455
W at 475 E – F.
[14]
In terms of Section 2 of the Conversion Act, the Director-General
shall conduct an enquiry 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 regards to
such sites.
[15]
In regards to such enquiry, the purpose is intended to guarantee a
fair and impartial enquiry into the contentions of the contending
parties as to who would ultimately qualify to acquire ownership of
the property. (See Jajbhay J in
Nzimande
v Nzimande and Another
2005
(1) SA 83
(WLD).
[16]
It is implicit that the Director-General conducts an enquiry before a
declaration is made that the site permit be converted
to full
ownership, and before transfer is effected to the occupier.
[17]
In the absence of such an enquiry, transfer to one particular person
is not allowed. Therefore this Court is entitled to order
the
cancellation of the transfer to the Sixth Respondent up until such
enquiry had been held. (See
Kuzwayo
v Representative of the Executor in the Estate of the Late Masilela
2011 (2) ALL SA 599
(SCA)).
[18]
Neither one of the Respondents opposed the application. In fact, the
First, Second as well as Third Respondents filed a notice,
indicating
that they will abide the decision of the Court.
[19]
Whereas there is no indication that the First Respondent did in fact
hold the enquiry as required by Section 2 of the Conversion
Act, the
following order is made:
ORDER:
1.
The First
Respondent’s decision declaring the Sixth Respondent to have
been granted ownership in respect of the property known
as Erf […],
Mangaung, Extension number : […], district Bloemfontein, Free
State Province appearing from General Plan
L136/1984 and held under
Certificate of Registered Title T7588/1994 is set aside.
2.
The First
Respondent is ordered to enquire into and determine afresh who shall
be declared to have been granted ownership of the
property.
3.
Fourth
Respondent is ordered to rectify the Title Deed of the property by
cancelling the transfer and registration of the property
in the name
of the Sixth Respondent.
_______________________
J.J.F.
HEFER, AJ
I
concur.
________________________
M.B. MBHELE, J.
On
behalf of the Applicant:
Adv. W.A. van Aswegen
Instructed
by:
Jacques van der Vyver
Attorney for Applicant
Kramer, Weihmann &
Joubert Attorneys
BLOEMFONTEIN
No
appearance on behalf of Respondents.