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[2015] ZAGPPHC 413
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Maselsele N.O. v Greater Giyani Municipality and Others (5054/2013) [2015] ZAGPPHC 413 (14 May 2015)
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 5054//2013
DATE
OF HEARING: 14 MAY 2015
In
the matter between:
JOHANNES
BOTHA SOLANI MASELESELE
N.O.
Plaintiff
and
GREATER
GIYANI MUNICIPALITY
First
Defendant
REFORMED
CHURCH SA
(LOWVELD)
Second
Defendant
THE TRUSTEES OF THE SAKINA
PROPERTY
TRUST
Third
Defendant/Excipient
THE TRUSTEES OF THE
EKSON
NGOBENI
TRUST
Fourth
Defendant
J U D G M E N T
AVVAKOUMIDES,
AJ
INTRODUCTION
AND FACTS
1.
Arising
from disputes about the ownership of certain properties in the
Limpopo Province (“the land”), the plaintiff
issued
summons on 15 November 2013 claiming the following relief:
1.1
A
declaratory order in terms of which it is declared that the plaintiff
is entitled to have its informal rights in “the land”
upgraded to ownership.
1.2
That
the plaintiff may make application in terms of the provisions of the
Upgrading Of Land Tenure Act, 112 of 1991 to give effect
to prayer 1.
1.3
That
“the land” be transferred to and registered in the name
of the plaintiff
1.4
Costs
of suit.
2.
The
plaintiff alleges in paragraph 7 of his particulars of claim that the
dispute exists between the plaintiff and the first and
second
defendants with regard to which of these parties has the right to
claim ownership in and to the land.
3.
The
plaintiff cited the third and fourth defendants as “interested
and affected parties” in that two of the erven making
up the
land have respectively been transferred to, and registered in the
names of the third and fourth defendants.
4.
On
9 January 2014 the third defendant filed an exception on the basis
that the plaintiff’s particulars of claim lack averments
which
are necessary to sustain an action upon which the plaintiff filed a
notice of intention to amend on 28 July 2014. The third
defendant
objected to the proposed amendment and the plaintiff did not pursue
the amendment. The particulars of claim remained
as they currently
stand.
5.
The
plaintiff has accordingly set the exception down for hearing. Strange
as it may sound the plaintiff failed to file a practice
note and
heads of argument and moreover failed to appear in court on the day
the exception was argued.
THE EXCEPTION
6.
The
plaintiff alleges in paragraph 10 of the particulars of claim, in
respect of with regard to the land that:
“
The
Plaintiff and its family/ancestors have since the 1950’s openly
and with permission to do so occupied the land and due
to it being
tribal land as well as previously inflicted apartheid’s
legislation, been refused title in and to the land.”
7.
In
paragraph 11 of the particulars of claim, the following averment is
made:
“
The
Plaintiff, in terms of the provisions of the Upgrading of Land Tenure
Act, Act 112 of 1991 is entitled to have its informal
rights in the
land upgraded to ownership.”
8.
Although
not expressly so alleged in paragraph 11 the third defendant argued
that it is implied in paragraphs 10 and 11 that the
plaintiff bases
his entitlement to have the land upgraded on the reasons contained in
paragraph 10.
9.
The
third defendant argued that in order to have an interest or title in
land upgraded to ownership the plaintiff could only do
so by showing
that he is entitled to full ownership by virtue of either section 2
or 3 of the Upgrading of Land Tenure Rights Act,
1991, Act No. 112 of
1991 (“the “Act”).
10.
Section
2 of the Act stipulates as follows:
“
2
Conversion of land tenure
rights mentioned in Schedule 1
(1)
Any
land tenure right mentioned in Schedule 1 and which was granted in
respect of-
(a)
any erf or any other piece of land in a formalized township for which
a township register
was already opened at the commencement of this
Act, shall at such commencement be converted into ownership;
(b)
any erf or any other piece of land in a formalized township for which
a township register
is opened after the commencement of this Act,
shall at the opening of the township register be converted into
ownership;
(c)
any piece of land which is surveyed under a provision of any law and
does not form
part of a township, shall at the commencement of this
Act be converted into ownership, and as from such conversion the
ownership
of such erf or piece of land shall vest exclusively in the
person who, according to the register of land rights in which that
land
tenure right was registered in terms of a provision of any law,
was the holder of that land tenure right immediately before the
conversion.”
11.
Section
3 of the Act stipulates as follows:
“
3
Conversion of land tenure
rights mentioned in Schedule 2
(1)
Subject to subsection (1B), any land tenure right mentioned in
Schedule 2 and which was
granted in respect of any erf or other piece
of surveyed land shall, upon the submission by the owner of such erf
or piece of land
at the deeds registry of a deed of transfer on the
form prescribed for that purpose under the Deeds Act and made out in
the name
of the person who is the holder of the relevant land tenure
right, be converted into ownership by the registrar of deeds by the
registration of such erf or piece of land in the name of such person:
Provided that-
(a)
where the State is the owner of an erf or piece of land situated
outside a formalised
township, the relevant land tenure right need
not be converted into ownership, and a deed of transfer shall not be
submitted unless-
(i)
the
Minister is satisfied, on the basis of a report by a person assigned
or appointed by him or her, that the rights or interests
of putative
holders are being protected; and
(ii)
where
such land is lawfully occupied or has been allocated for the use of a
tribe or community a tribal or community resolution
has been
obtained;
(b)
where a tribe is the owner of the land, the decision to convert the
relevant land
tenure right into ownership shall be taken by way of a
tribal resolution.
(1A)
For the purposes of an investigation referred to in subsection (1)
(a), the designated or appointed
person shall have all the rights and
duties referred to in section 24D (7).
(1B)
If an owner of an erf or piece of land is requested to submit a deed
of transfer of land in terms of
subsection(1), the Minister may on
request of such owner, or if the State is the owner of such land, of
his or her own accord-
(i)
impose
conditions in respect of the use of such land, but if the State is
the owner of such land and it is lawfully occupied by
or has been
allocated for the use of a tribe or community, in consultation with
such tribe or community;
(ii)
from
moneys appropriated by Parliament or at the cost of an affected
person and on such conditions as he or she may determine, cause
such
land to be surveyed;
(iii)
order
that an amount to be determined by him or her be paid by an affected
person to the owner of the erf or other piece of land,
or if the erf
or other piece of land falls within an area lawfully occupied or
allocated for use by a tribe or community, to the
tribe or community
concerned;
(iv)
provide
for a method for determining the amount to be paid in terms of
paragraph (iii).
(2)
A
deed of transfer referred to in subsection (1) shall be prepared by-
(a)
a
conveyancer; or
(b)
if the owner of the erf or piece of land is the State or any local
government body, any
officer in the public service or person in the
employ of such local government body, as the case may be, who has
been designated
for the purpose by the Minister, a Premier or a local
government body, as the case may be.
(3)
A deed of transfer referred to in subsection (1) shall be in the form
prescribed under
the Deeds Act and shall be signed by the owner of
the erf or piece of land or his or her duly authorised agent in the
presence
of a conveyancer referred to in subsection (2) (a) or an
officer or person referred to in subsection (2) (b) in the manner
prescribed
under that Act.”
12.
The
third defendant argued that it axiomatically follows that a plaintiff
who wishes to enforce rights that he believes to have
has in terms of
the Act will have to make it clear in the particulars of claim that
he relies on either section 2 or section 3.
13.
Furthermore
a plaintiff relying on section 2 of the Act must allege and prove
that the property in respect of which the ownership
is claimed is
firstly property contemplated in Schedule 1 of the Act;
and
if so
is also a property which complies with the provisos set out in
subsections 2 (1) (a) (b) and (c).
14.
Should
a plaintiff, on the other hand rely on section 3 of the Act in
claiming ownership, the plaintiff would have to allege and
prove that
the property is firstly property contemplated in Schedule 2 of the
Act;
AND
IF SO
is also a property which complies with the proviso set out in
subsections 3 (1) of the Act.
15.
Schedule
1 to the Act enumerates the following land tenure rights:
15.1
Any
deed of grant or any right of leasehold as defined in regulation 1 of
Chapter 1 of the Regulations for the Administration and
Control of
Townships in Black Areas, 1962 (Proclamation R293 of 1962).
15.2
Any
quitrent title as defined in regulation 1 of the Black Areas Land
Regulations, 1969 (Proclamation R188 of 1969).
15.3
Any
right of leasehold as defined in section 1 (1) of the Black
Communities Development Act, 1984 (Act 4 of 1984).
15.4
Any
right of leasehold within the meaning of the Conversion of Certain
Rights to Leasehold Act, 1988 (Act 81 of 1988).
15.5
Deed
of grant rights or rights of leasehold as defined in regulation 1 (1)
of the Regulations concerning Land Tenure in Towns, 1988
(Proclamation R29 of 1988).
15.6
Deed
of grant rights or rights of leasehold within the meaning of the
Regulations for the Disposal of Trust Land in Towns, 1988
(Government
Notice R402 of 1988).
16.
Schedule
2 to the Act enumerates the following land tenure rights:
16.1
Any
permission granted in terms of regulation 5 (1) of the Irrigation
Schemes Control Regulations, 1963 (Proclamation R5 of 1963),
to
occupy any irrigation and residential allotment.
16.2
Any
permission to occupy any allotment within the meaning of the Black
Areas Land Regulations, 1969 (Proclamation R188 of 1969).
16.3
Any
right of occupation granted to any registered occupier as defined in
section 1 of the Rural Areas Act (House of Representatives),
1987
(Act 9 of 1987).
16.4
Any
right to the occupation of tribal land granted under the indigenous
law or customs of the tribe in question.
17.
The
plaintiff has failed to identify any of the properties as being
properties contemplated above.
18.
Even
if it is assumed for argument in favour of the plaintiff that the
properties are indeed properties contemplated in schedule
2 and will
be alleged to be so, more particularly that such properties will be
alleged to be those listed in paragraph 16 above,
the plaintiff would
have to allege that
the
plaintiff has a right of occupation, of tribal land, granted under
the indigenous law or customs, of the tribe in question
.
19.
The
third defendant argued that what the plaintiff alleges in paragraph
10 of his particulars of claim is by no stretch of the imagination
tantamount to what is actually required. Paragraph 10 of the
particulars of claim states that
plaintiff
and its family/ancestors have since the 1950’s, openly and with
the permission to do so, occupied the land, and
due to it being
tribal land as well as previously inflicted apartheid’s
legislation, been refused title in and to the land
.
20.
It
is consequently clear that what the Act intends, is to formalise the
ownership to the land of any person who had at some stage
been
granted rights of occupation in terms of the system of indigenous law
of a tribe. What the plaintiff however alleges
that it has
openly and with permission to do so, occupied the properties.
21.
Only
when it is clear that the plaintiff has a land tenure right
contemplated in Schedule 2, such a right
had
to be granted
in
respect of
any erf or other piece of
surveyed land
.
See section 3 (1) of the Act.
22.
The
third defendant submitted that, at the very least, the plaintiff must
make the allegation that at the time of the granting of
the
occupation of land in terms of the rules of a system of indigenous
law of by the tribe, the formal granting of the rights of
occupation
had, and that stage
,
been done in respect of the properties which were at that stage erven
or surveyed land.
23.
Although
the properties are identified by the maps attached to the particulars
of claim as “JBSM2” it is clear that
these maps were only
drafted by registered professional land surveyor during October 2011
and it is clear that the maps did not
exist in the 1950’s.
24.
Furthermore,
even if it is assumed for the purpose of the argument in favour of
the plaintiff that he intends to rely on section
3, schedule 2, and
paragraph 4 thereof to claim an upgrading of land title, the third
defendant submitted that the following further
allegations would be
necessary in order to sustain the cause of action:
24.1
The
identity of the tribe to which the plaintiff refers and that it was a
community living and existence like a tribe or any part
of a tribe
living and existing as a separate entity; and
24.2
That
the properties in question were tribal land, in that such properties
were either land in respect of which the tribe was the
owner or which
was held in trust on behalf of the tribe or which has been allocated
for the use of the tribe to the tribe by the
State or the South
African Development Trust in section 4 of the Development Trust and
Land Act, 1936, Act No. 18 of 1936; and
24.3
The
fact that the granting of the rights was done under indigenous law or
customs of the particular tribe in question, and, due
to the
stipulations of the
Law Of Evidence Amendment Act, 1988
, Act No. 45
of 1988, more particularly section 1(1) thereof, allege what the
particular rules of this system of indigenous law
of the tribe were,
from which allegations it will be clear whether the court will be in
a position to take judicial notice of the
content of the rules
(something which will be highly unlikely given the nature of the
allegations made) or whether the plaintiff
will have to lead expert
evidence on the content of the rules of the tribe.
25.
The
third defendant consequently argued that the particulars of claim
fall short of the minimum allegations that are required to
sustain a
cause of action in terms of the Act. Consequently, the third
defendant, as excipient, requested that the particulars
of claim be
struck
alternatively
that the exception be upheld and that the plaintiff be granted leave
to amend his particulars of claim within 14 of the date of
the order.
26.
Lastly
the third defendant submitted that the particulars of claim are also
excipiable in one or more of the following:
26.1
the
citation of the parties is incorrect in that the trustees ought to
have been cited in their representative capacities instead
of the
trusts (See Du Toit v Vermeulen
1972 (3) SA 848
(A) and Clarkson N.O.
v Gelb
1981 (1) SA 288
(W); and
26.2
It
is not clear from paragraph 7 of the particulars of claim to which
parties’ reference is made when alleging a dispute and
which of
these parties has the right to claim ownership in and to the
properties.
27.
I
have considered all the submissions of the third defendant and am
inclined to agree that the particulars of claim are indeed excipiable
for the reasons submitted.
28.
Consequently,
I make the following order:
28.1
The
exception is upheld.
28.2
The
plaintiff is granted leave to amend his particulars of claim within a
period of (14) fourteen days.
28.3
The
plaintiff is ordered to pay the costs of this application.
________________________________
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Representation for Plaintiff:
Counsel
No appearance
Instructed by:
Representation for the First Defendant:
Counsel
No appearance
Instructed by
Representation for the Second Defendant:
Counsel
No appearance
Instructed by
Representation for the Third Defendant/Excipient:
Counsel
Adv. G. J. Diamond
Instructed by
Booyens Du Preez & Boshoff
Representation for the Fourth Defendant:
Counsel
No appearance
Instructed
by