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[2016] ZAGPPHC 1146
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Madiba and Others v First National Bank Limited and Others (58290/2014) [2016] ZAGPPHC 1146 (26 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
26/10/2016
CASE
NO: 58290/2014
Reportable:
No
Of
interest to other judges: No
In
the matter between:
CONNY
KOLOBE MADIBA
AND
THE RESIDENTS OF BLOCK L, BLOCK FF
AND
BLOCK
GG
Applicants
and
FIRST
NATIONAL BANK LIMITED
First
Respondent
AND
14 OTHERS
JUDGMENT
Tuchten J:
1.
The applicants, whom I shall call the Madiba applicants (following
the surname of the first applicant) sought interim relief
pending the
hearing of an application for final relief to declare certain of the
Madiba applicants to be the owners of certain
of the properties
described in the notice of motion. No attention need be given to the
prayers for interim relief because the matter
is presently before me
or adjudication of the prayer for final relief and there is no
suggestion that any of the Madiba applicants
are presently under
threat of eviction or the like pending the final determination of the
case by the court. The identities of
the Madiba applicants appear
from a list at pp11B-119 of the papers. I shall call this case the
Madiba case.
2.
The properties are all in Soshanguve. Prior to the advent of the
present democratic and constitutional dispensation, these properties
and indeed their occupants were treated by the bureaucracy of that
era with scant regard for law or human dignity. The properties
were
in that era all treated as belonging to organs of state. When
thereafter, efforts were made by the state to redress the injustices
of the past, ownership was passed by, or was purportedly passed by,
organs of state to individuals. Disputes arose as to the identities
of the persons to whom ownership should be passed and as to rights of
occupation.
3.
Thus, many of the applicants have demonstrated on the papers that
they have been in occupation of particular properties for decades
without a clear understanding of the legal basis on which they
occupy.
4.
Because such properties are now the subject of private ownership, a
market in such properties has arisen. Some of the persons
active in
this market are unscrupulous and have managed by unlawful means to
secure deeds office registration of title in their
favour. I make
this statement generally and without seeking to make any findings in
this regard in favour of or against any party
to the present
litigation.
5.
Our law places great reliance on deeds office registration; property
so in cases relating to properties where the pa88ing of
title to such
properties has for decades been recorded in the deeds offices. But in
relation to properties such as those in question
in this case, the
position is sometimes not so clear. In such cases, the facts must in
my view carefully be scrutinised. This is
all the more so when
persons who have been in occupation for a long time have the basis of
their occupation challenged.
6.
Section 26 of the Bill of Rights requires that before any person can
be evicted from their home, all relevant circumstances must
be
considered. This principle has informed the orders that I shall make.
7.
There was related litigation. Aluminum Four You Windows and Doors CC
claims to be the owner of one of the properties mentioned
in the
Madiba case, ie erf 1615 Soshanguve GG Township and under case
no.21426/2014 (the Aluminium case) sought the eviction from
that
property of Ms Fanny Gorobela Ramahuma and other persons described as
the unlawful occupants of that property. In addition,
it appears from
the Madiba case that Alice Legodi claims rights In relation to erf
1615 Soshanguve.
8.
In another related case, Nare Mosima Manamela claims to be the owner
of erf 247 Soshanguve and under case no 65033/2015 (the
Manamela
case), sought the eviction from the property of Ms Thelma Hlongwane
and all other occupants.
9.
By orders of this court made on 23 February 2015 under case no
21426/2014 (ie the Aluminium case) and on 8 August 2016 under
case no
65033/2015 (le the Manameia case), It was directed that the three
cases be heard together. They came before me on that
basis.
10
The applicants in both the Aluminium case and the Manamela case claim
to be the registered owners of the respective properties.
I have
decided for the reasons I have broadly outlined above to send those
cases to trial under rule 6(5) (g). I shall make specific
orders in
those regards separately from this judgment.
11.
The remaining Madiba applicants have however not identified any
dispute which they have with any named respondent regarding
their
occupation of the properties. In those circumstances, I decline to
exercise my discretion to make any declaration as to their
rights. I
which however to make it clear that the order for absolution which I
shall make is not to prejudice any of the Madiba
applicants in any
proceedings which may subsequently come before the courts regarding
their rights in relation to the properties.
12.
I make the following order:
1. Subject to the orders which I shall
make in case no.21426/2014 (the Aluminium case) andcaseno.6503312015
(the Manamela) case,
there will be absolution from the instance
against the applicants in case no. 56290/2014 (the Madiba applicants)
2. The Madiba applicants are Conny
Kolobe Madiba and the other persons whose names appear on the list
atpp118-119 of the papers.
3. This order shall in no way
prejudice any of the Madiba applicants in any subsequent proceedings
in relation to their rights in
relation to the properties in respect
of which they claim or may claim rights.
4. There will be no order as to costs.
NB
Tuchten
Judge
of the High Court
26
October 2016