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[2016] ZAGPPHC 499
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Maleka and Another v Ika and Others (69567.2012) [2016] ZAGPPHC 499 (27 May 2016)
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:69567/2012
DATE
OF JUDGMENT: 27 MAY 2016
In the matter
between:-
ELIAS NTHAKI
MALEKA
First Applicant
LILLY TEBOGO
MALEKA
Second Applicant
and
ROSEMARYIKA
First Respondent
THE UNLAWFUL
OCCUPIERS OF
ERF 22369
MAMELODI EXT 4
Second Respondent
CITY OF
TSHWANE METROPOLITAN MUNICIPALITY Third Respondent
JUDGMENT
KOOVERJIE A
J:
A.
APPLICATION:-
1. This is an
application in terms of the Prevention of Illegal Eviction From and
Unlawful Occupation Land Act. No. 19 of 1998 (PIE
Act).
B.
COUNTER
APPLICATION:-
2.
The
Respondent sought the following relief in respect of the counter
application namely that:
2.1the "offer
to purchase" marked "A" in the main application be
declared invalid and unenforceable;
2.2 the Deeds of
Transfers issued in respect of all the transfers be declared null and
void and be set aside;
2.3 The Registrar
of Deeds be ordered to expunge registrations of the transfers of
ownership in respect of various transfers;
2.4 The City of
Tshwane Metropolitan Municipality and the Head of Department of
Housing, Gauteng Provincial Government, be ordered
tofacilitate that
erf number 22369 Mamelodi Extension 4, is transferred in the name of
the First Respondent.
3.
Counsel for the Respondents submitted that Mrs. lka has not
only a direct and substantial interest but a legal interest as well.
Furthermore by virtue of her constitutional right to adequate and
secure housing she is entitled to thereto.
4.
Counsel for the Applicants argued that Mrs. lka does not have
any right in law to occupy the property and neither does she hold a
title as lessee or even as owner.
5.
The
requirements for
locus
standi in judicio
are
essentially that the party
must
have an interest in the litigation, which is not far removed and such
interest exists currently.
[1]
6.
Even though she had not been a party to the relevant
agreements between the purchasers and sellers, she does however have
an interest
in the said property. She is currently occupying the
premises and the outcome of the application would have an effect on
her. It
was noted that various legal points were raised in her
affidavit and to which she possibly has inadequate knowledge thereof.
However
the court acknowledges that litigants rely on the advice of
their legal advisors, who assist them in the preparation of their
papers.
C.
BACKGROUND:-
7.
This matter goes as far back as 1998, when the First
Respondent's husband (Mr. lka) obtained a home loan from Khaya Lethu
Home Loans
(Khaya Home Loans) in respect of their former property
situated at 21362, lkageng Section, Mamelodi East, Pretoria. The
lka's occupied
the house on the basis of a loan which was to be
repaid in monthly instalments. (First house.)
8.
During May 1992, Mr. lka fell in arrears and the family were
evicted from the premises. Upon negotiating a settlement with Khaya
Home Loans, Mr. lka's loan account was reinstated. The lka's were
relocated to another premises apparently a "showhouse"
situated on Erf 22369, Mamelodi, Extension 4, Gauteng and which
property is the subject matter of the dispute. (Second house.)
9.
The reason for their relocation was that their previous home
was occupied by other tenants.
10.
A negotiation was recorded in correspondence dated 22 June
1993, from Khaya Home Loans on the basis that Khaya Home Loans would
be prepared to reactivate the account and give them occupation of
the second house on the following conditions:
10.1
the owner occupying their home would agree to vacate and take
possession of another property;
10.2
that Mr lka pays the arrears; and
10.3
a stop order would be arranged against his salary in respect
of the instalments.
11.
This was accepted by Mr. lka on the basis that a written
confirmation be given that the new owner indeed would vacate the
property
and take possession of another property. This was the last
correspondence in respect of the lka's arrangement with Khaya Home
Loans.
The lka's enjoyed occupation of the premises until they were
informed in 2012 that they were occupying the premises unlawfully.
12.
In the 19 years that they had occupied the property, the
property was purchased by various owners, the last being the Malekas
(Applicants).
The property changed hands as follows:
12.1The property
was lawfully owned by the
City Council of M
amelodi during
1991, the City Council granted a right of leasehold, for a period of
99 years to the
South African Housing Trust (Housing Trust)
in
terms of Section 2(1)(a)(i) of the Black Communities Development Act
4 of 1984 (BCDA). This leasehold was registered by means
of a
"Certificate of Registered Grant of Leasehold".12.2 In
September 2002, the "Housing Trust" was replaced
with the
N
ational
Housing Finance Corporation (Finance
Corporation)
. The effect thereof was that all the rights and
assets were transferred to the Finance Corporation, which right
included the Leasehold
right over the said property.
12.3 On or about
18 August 2011 the Finance Corporation sold and transferred the
property to
Khaya-Lethu Trading SA CC (Khaya Trading)
.
12.4 On 30
November 2011 Khaya Trading sold the property to
Mr. Masemola.
12.5 On 25 May
2012, Mr. Masemola sold the property to the
Malekas
(the
Applicants.
13.
Mrs. lka challenged the validity of the ownership on the
basis that no written consent was furnished by the City Council to
the
Finance Corporation which recorded that the Leasehold was
transferred to the Finance Corporation.
14.
Consequently all the transactions thereafter are unlawful,
hence the last "owner", the Applicants, have no right in
law to the property. As unlawful owners they cannot evict the
Applicant.
D.)
POINTS
IN LIM/NE
15.
The application was laced with numerous points in
limine.
However at the hearing the parties raised only two legal points.
As alluded to above, Counsel for the Respondent persisted with the
point that since no written consent was given in respect of the
Leasehold of the premises from the City Council, the transfer deeds
in respect of all the owners are null and void.
16.
The Applicants challenged Ms. lka's
locus standi
in the
counter application. At no point was Ms. lka involved in any of the
respective transfers of the property with the various
buyers and
sellers. She could therefore not have
locus standi
in support
of the counter application.
17.
The first legal point will be dealt with in detail below as it
remains the main issue of dispute.
18.
Insofar as the second point raised by the Applicant, this
court has already alluded above that even if Mrs. lka had not been
involved
in the relevant transfers, she remains an interested party.
E.
RESPONDENT’S CASE
19.
It is necessary to highlight the Respondents' case in light of
the legal point raised by them. The salient parts of the Respondents'
arguments are as follows:
19.1 Ms. lka had
occupied the premises lawfully on the basis of the agreement with
Khaya Home Loans;
19.2 the transfer
of the property was effected in without her knowledge;
19.3 the crux of
the dispute centres on Section 16A of the Deeds Registries Act, No.
47 of 1931, which stipulates:
"When
a right of leasehold which has under any provision
of
the Black Communities Development Act 1984, been granted
to any person,
is
registered
in
the
name
of a person,
that
right shall,
subject to the provisions of the said
Act
and if the Regulations made thereunder, be
transferred in the prescribed manner by means of a deed of transfer
executed or attested by the Registrar and subject to
the conditions of the grant to another person: Provided where
the
State is
the transferor,
such
transfer
may be effected
by
means of a deed of grant."
(The Respondents'
underlining).
19.4 Section 16A
requires that transfer of any right of leasehold shall be subject to
the provisions of the Black Communities Act,
No. 4 of 1984.19.5
Section 54(2)(b) of the Black Communities Act (BCA)
, provides
that
no
grant
or
transfer
of
any
leasehold
shall
be
effected u
ntil
proof is furnished to the Registrar of
Deeds that the L
ocal
Municipality
(in this case the City
of Tshwane Metropolitan Municipality),
has granted written consent
to the said grant or t
ransfer.
19.6 The
irregularity began with the transfer of the property from the City
Council to the Finance Corporation where the Registrar
had not been
furnished with the written consent of the City Council.
19.7 In a
nutshell, the transfer of the right of leasehold by the Finance
Corporation to Khaya Lethu Trading as well as the subsequent
transfers are unlawful and are
void ab initio
and of no force
and effect.
19.8
Furthermore, the Finance Corporation had not produced a written
contract for the sale of the house to KhayaLethu Trading
SA CC in
terms of
Section 2(1)
of the
Alienation of Land Act, No. 68 of
1981
, such sale is therefore invalid. The same principle applies to
all the subsequent transfers.
19.9 Masemola
when he, purportedly sold the property to the Malekas, had no title
in the property and could therefore not pass
transfer.
(i)
Eviction
20.
The lka's had occupied the property by way of agreement with
Khaya Home Loans, and such agreement had not been terminated by Khaya
Home Loans, the Housing Trust nor the Finance Corporation either
expressly or in writing.
21.
In the event that this court would find that the PIE Act is
applicable, then its requirements must be met before anyone can be
evicted
from their home. PIE Act was specifically enacted so as to
give effect to the rights in Section 26 (non-deprivation of a home
without
an order of court after consideration of all the relevant
circumstances). Counsel referred to various authorities in
substantiating
these submissions, which will be referred to below.
22.
The Applicant's argument, that the lka's knew as far back as
2015 that the house was sold and that she had ample time to look for
alternative accommodation, cannot be sustained. This court has to
exercise its discretion having regard to all the requirements
in the
PIE Act. Hence it would not be just and equitable to grant an order
evicting Ms. lka and her family.
23.
Counsel for the Respondents specifically requested this court
to order the City Council to file a report in respect of the issues
raised in the application and the counter application. The City
Council owes a constitutional obligation to the lka's who may face
homelessness.
24.
The
Registrar of Deeds should further be directed to submit a report to
this court.
25.
Hence the Respondents seek that the application be dismissed
with costs in their favour and the counter application be upheld with
costs.
(ii)
Putative
holder in terms of the Upgrading of Land Tenure Rights Act,
N
o.
112 of 1991
(Land Tenure Rights Act)
26.
It was further submitted that the lkas had a land tenure right
by virtue of the Land Tenure Rights Act.
27.
"Land Tenure Right" is defined as
"any
leasehold, deed of grant,quitrent
or any other right to
the occupation of land created by or under any
law".
28.
It was conceded that Ms. lka could not have occupied the
property by virtue of any leasehold or deed of grant but her right
persisits
on the basis of her being a "putative holder" -
she is defined as "a
person who occupies an erf
as
if
he/she
is the holder
of the land tenure right in respect
of that erf
but who is
not recorded
in the register
of land rights as the holder
of the right in
question".
29.
The aforesaid Act finds further application as Ms. lka enjoys
the legislative protection in terms of Section 26( 1) of the
Constitution
as well as Section 2( 1) of
Housing Act No. 107 of 1997
.
Section 2(1)(c)(ii)
requires all three sphere of government to ensure
that the housing development provides a wide choice of housing and
tenure options
as is reasonably possible.
F.)
APPLICANTS'
CASE
30.
Counsel for the applicants made the following submissions:
30.1 they do not
contest the legislative provision that written consent should be
given in terms of Section 16A of the Deeds Registries
Act read with
Section 54(2)(b) of the Black Communities Act. However their
contention is based on the fact that if the Respondent
relies on this
defence then surely she had the responsibility to present evidence to
the effect that no consent had been obtained
from the City Council in
writing in respect of the transfer of the leasehold.
30.2 the
Respondents' argument was based on the relevant "powers of
attorney" in respect of the deed of transfer which
does not
record that consent was given. Since no such express consent was
recorded therein, the only reasonable inference to be
drawn is that
no consent was obtained.
30.3 Moreover
the Respondents should have ascertained whether such recordal
existed in the deeds of transfer and whether the
written consent
was indeed in place from the City Council and the Registrar of
Deeds.
30.4The
Clearance Certificates themselves are evidence of the fact that the
City of Tshwane was aware of the transfers of the
aforesaid
property and would have expressed its consent to the transfers.
30.5 Reference
was made to
Pi/lay v
Krishna
&
Another 1946 AD
at 946
,
the
locus
standi
on the principle that
"He who
asserts,
proves and
not he who denies, since a denial of
fact cannot naturally be proved provided
there
is a fact that is denied and that the denial is absolute".
30.6 The
Applicants remain the registered and lawful owners of the property.
They are entitled to deal with the property as they
please, which
includes the right to terminate any consent previously granted by the
former owner of the property.
30.7 The
Respondent cannot by virtue of her personal right have more rights
over the property than the Applicants, who are the
registered owners
of the property.
In support of
this argument reference was made
Ndlovu v Ngcobo: Bekker
and
Another
v
Jika 2003 (1) (A) 113
SCA
at
122
D
,
where
the court held that the ordinary definition of the term "unlawful
occupier" meant that the Act applied to all unlawful
occupiers,
irrespective
whether their possession at an earlier
stage
had been
l
awful.
Putative
Holder
30.8 The
upgrading of the Land Tenure Rights Act does not find application
herein as it specifically relates to tribal land.
The full
definition of "land tenure right" is defined as
"any
leasehold,
deed of grant, quitrent or any other right
of the occupation of land created by or under any law
and,
in relation to tribal l
and,
includes any
right to the occupation of such land under the
indigenous
law or customs of the tribe in
question".
30.9 Insofar as
application in terms of "any other law" is concerned it is
clear that the Respondent's occupation does
not fall within this
category either.
30.10 Khaya Lethu
Housing Trust had granted the Respondent consent by way of an
agreement to temporarily occupying the property.
This does not give
the Respondent any right in law to be considered a "putative
holder".
30.11 In further
argument, it was submitted that the basis of the occupation is a
precarium
i.e. an arrangement in terms of which the owner
gratuitously persists with the possession of property. Such consent
was given temporarily
and such possession would have expired on Khaya
Lethu's Trading SA CC's taking ownership of the property.
30.12
Furthermore Ms. lka has resided on the property for over 19 years.
She has particularly failed to tender information regarding
any
attempts made to obtain the first house and the terms of occupation
in relation to the second house.
30.13 The
Applicants have complied with requirements of the PIE Act. All that
was required on the part of the applicants was to
show a legitimate
title as owners of the property and that such property has been
occupied unlawfully. As an unlawful occupier
she is obliged to adduce
sufficient facts to enable the court to exercise its discretion
whether an order for eviction would be
just and equitable.
Analysis
and Findings
31. The court has
heard counsel for both parties, considered their additional heads as
well as the contents of both the application
and counter application,
and is indebted for the heads of argument from both counsel.
32. The first
issue pertains to whether the Applicants are the lawful owners. There
has been no evidence presented that the property
in question was
registered irregularly. It is a known fact that the Registrar of
Deeds is obliged to comply with the prescribed
process of
registration in terms of the Deeds Registries Act.
33. Every
registration is subjected through a process beginning at stage of
sale, the preparation of the papers by the transfer
attorneys to the
proper examination of all deeds and documents submitted at the Deeds
Office.
34. Surely if
there had been any irregularity, in this instance, that the written
consent of the City Council was outstanding, or
was not obtained, the
Registrar would have executed and transfer of the said property.
35. The
Respondents raised various discrepancies regarding of the
registration documents as well as the transfer documents. However
this court cannot declare the deeds invalid on the basis of these
discrepancies. There have been no concrete facts put before this
court that the registration was irregular.At least a response from
the Registrar of Deeds in respect of the particular transfers
in
issue should have been obtained.
36. It is settled
law that the effect of registration in land is that the person is
deemed to be the legal owner of the land.
37. Moreover the
transfer from the Masemolas to the Malekas is considered to be a
lawful and legal sale. The fact that Masemola
was not the registered
owner at the time, does not preclude him from being an "owner"
who can sell property to another.
In
Frye's (Pty) Ltd v Rees
1957 (3) SA (A) at p 581 A
Hoexter JA held:
"There
can be no doubt that neither a sale nor a lease is void merely
because the seller or lessee is not the owner of the
property sold or
leased."
38. On the other
hand this court must take into consideration, the predicament that
Ms. lka and her family finds themselves in.
39. The agreement
between Mr. lka and Khaya Home Loans appears to be a temporary
arrangement, where they would reside in the second
house, until Khaya
Home Loans relocate the tenants living in their house (first house).
The said occupation of Mr lka's was against
a loan agreement where
Mr. lka was required to settle in monthly instalments.
40. This court
does not agree with the submissions made by the Applicants' counsel
that Mrs. lka had not taken the initiative
to enquire about this
temporary arrangement and their relocation back to their first
house.
41. Ms. lka in
response to this application alludes this court to the difficulties
that she has had in respect of this aspect.
The court was made aware
of the following factors namely:
•
Mr. lka
had left the family a few years ago,-
•
Mrs. lka
attempted to enquire from him as to the progress of moving back to
their own house as well as the arrangement he had with
Khaya Home
Loans. It was a hopeless exercise as Mr. lka refused to assist and
ensure that his family has a roof over their heads
•
Further
attempts had been made on her part to resolve this issue. She had
procured the assistance of an attorney to assist her.
In doing so,
she learnt fact that Khaya Home Loans was deregistered and is no
longer in existence.
•
She further
sought the assistance of South African National Civic Organisation
(SANCO).
•
She claims to
have also approached the City Council of Mamelodi where they advised
her that they could not assist her.
42. On the facts
before us, the National Housing Finance Corporation had sold the said
property to Khaya Trading SA CC. The temporary
arrangement was
between Khaya Home Loans and Mr. lka. The question then is - Was the
National Housing Finance Corporation aware
of this arrangement
between Mr lka and Khaya Home Loans when they sold the house?
43. On the
evidence before me I find that the Applicants are the registered
owners and deemed to be the lawful owners. Mrs lka
does not have a
greater right.
(ii)
Putative
Holder
44.Counsel for
the Respondent submitted that the Respondent is a ·'putative
holder" of the land tenure right in respect
of the said
property. As already alluded above a "putative holder ' is
defined as:
"the
person who occupies an erf as if he / she is the holder of
the
land tenure
right in respect of that erf
but
who
is not formally
recorded in
the register of land rights as the holder of the right in question."
45. In this
instance the land in issue belonged to the City Council of Mamelodi
and the leasehold right was granted to the South
African Housing
Trust by virtue of "Registered Grant of Leasehold". In
terms of the Disestablishment Act, the South African
Housing Trust
Limited's rights and assets were transferred to the National Housing
Trust Limited. The State was the sole shareholder
of the entity. The
National Housing Finance Corporation thus gained title to the
property in issue by virtue of the aforesaid Act.
The objective of
the upgrading of Land Tenure Right Act was to secure tenure by making
provision for the upgrading of certain rights.
Depending on the
nature of the right, it was either upgraded automatically or after a
prescribed procedure. The rights would include
those that arise from
a leasehold, quitrent and deed of grant. It has been conceded that
Mrs lka's rights do not emanate from the
aforesaid.The other rights
derive from legislation, tribal occupational rights in accordance
with the indigenous customs and traditions.
Neither does Mrs lka's
rights derive from the aforesaid. It is common cause that her
occupation was in terms of an arrangement
with Khaya Home Loans,
which does not fall in any of the aforesaid categories. In light
thereof this defence cannot be sustained.
Eviction
46.
It is
settled law that no one may be evicted from their home without an
order
of court and upon considering all the relevant circumstances as
envisaged
in
Section 4 of
PIE.
[2]
47. Section 26
(3) of the Constitution imposes a duty on the courts to investigate
and address considerations of justice and equity
in the determination
of eviction applications. Although this court in exercising its
discretion as to what is
just and equitable,
has a wide
discretion, it does not have a free hand to do whatever it wishes. It
must specifically have regard to the provisions
of Section 6(3) of
PIE, which are peremptory as well as Sections 4(6) and 4(7) of PIE.
48.
When
exercising a judicial discretion this court is obliged to strike a
balance between
the
proprietary
rights
of
the
owner
and
the
basic
human
right
of
the
occupier.
[3]
49. In
Ndlovu
v Ngcobo; Bekker
&
Another v Jikka,
the court held:
"The
effect of PIE is not to expropriate the landowner and PIE cannot
be
used
to
expropriate
someone
indirectly
and
the
landowner retain
the protection of
S52
of
the
Bill
of
Rights.
What
PIE
does
is to delay
or suspend
the
exercise
of the landowner's
full
property rights until
a
determination has been made whether it
is just and equitable to evict the unlawful occupier
and under what conditions simply put, that is what the procedural
safeguards provided for in S4
envisage."
50. Counsel for
the Applicants specifically argued that the lkas have been occupying
the second house for many years without making
the necessary
enquiries regarding occupation of their first house nor have they
attempted to seek alternate accommodation.
51. The blame
cannot be solely laid at the lka family's door. Khaya Home Loans had
certainly not undertaken to relocate them to
their first home. Even
if the lka's have been living for free, this is also due to the
oversight or lack of administration on the
part of Khaya Home Loans.
No explanation has been proferred whether the National Housing
Finance Corporation was aware of this
arrangement.
52. Ms. lka
informed this court that she currently lives with her children and
grandchildren, the youngest at the time was 1 month
and the eldest
being 6 years. She is currently the head of the household.
53. Section 4(7)
of PIE Act stipulates that all relevant circumstances, including the
availability of land for the relocation of
the occupiers and the
rights and needs of the elderly, children, disabled persons and
household headed by women must be taken into
consideration.
54. In exercising
its judicial discretion, this court must aim to achieve a balance
between the Maleka's ownership against the basic
human rights of Ms.
lka and her family.
55. I find that
even though the lka family face eviction, such eviction can only
occur within a reasonable period of time where
they are able to find
alternative accommodation and subject to certain conditions.
56. The eviction
may only be effected after 6 months of the granting of this order.
Until such time, the respondents would do all
that is necessary to
relocate to their first house, alternatively be placed in suitable
accommodation.
57. The third
respondent, the City Council, would be directed to assist the first
and second respondents to relocate to their first
house, alternative
to find suitable accommodation preferably in Mamelodi, Extension 4 or
in the "lkageng Section Mamelodi
East.
Costs:
58.
Both
parties have succeeded partially in the application and
counter
application respectively. The appropriate order should be that each
party should pay its own
costs.
[4]
Order:
59. In the
premises I make the following order:
(1) It is
declared that the applicants are the lawful owners of the property;
(2) An eviction
order is made against both the first and second respondents, which
will only have effect after 6 months of the
date of judgment;
(3) The third
respondent is directed to assist the first and second respondents to
relocate to their home situated at 21362, lkageng
section, Mamelodi
East, Pretoria, alternatively to place the first and second
respondents in suitable accommodation.
(4) The third
respondent is directed to comply with this order with immediate
effect.
(5) Each party to
pay its own costs.
KOOVERJIE AJ
Acting Judge of
the High Court
Date of
hearing:
Counsel for
the Applicants: Adv K.
Potgieter
Attorneys for
the Applicants: Couzyn Hertzog and Horak Inc,
Pretoria
Counsel for
the first and second Respondents: Adv MD
Mohlamonyane
Attorneys for
the Respondents: Mahlangu Attorneys,
Pretoria
[1]
Cabinet of the Transitional Government for the Territory of South
West Africa v Eins
1998 (3) SA 369
(A)
[2]
Residents of Joe Slovo, Western Cape v Thebelisha Homes
2010 (3) SA
454
(CC) at 527E-528E.
[3]
Absa Bank v Murray
2004 (2) SA 15
C at 21 C -
G
[4]
Fripp v Gibbon & Co
1913 AD 354