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[2015] ZAFSHC 49
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Mogege and Another v Mapuoa and Others (3989/2006) [2015] ZAFSHC 49 (10 March 2015)
IN
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : 3989/2006
In the matter
between:-
RUTH
MOGEGE
….......................................................................................................
1
st
Plaintiff
LAMSLEY
MOGEGE
….............................................................................................
2
nd
Plaintiff
And
TLHAKODI
MAAJE SAMSON MAPUOA
….......................................................
1
st
Defendant
MAPINO
MITTAN MAPUOA
…...........................................................................
2
nd
Defendant
MAHGAUNG
LOCAL MUNICIPALITY
….........................................................
3
rd
Defendant
DIRECTOR
MAGAUNG LOCAL MUNICIPALITY
….......................................
4
th
Defendant
RESISTRAR
OF DEEDS (FREE STATE)
….........................................................
5
th
Defendant
THE
SENIOR MAGISTRATE, CIVIL DIVISION
FOR
BLOEMFONTEIN (MR H.F FRITZ)
…........................................................
6
th
Defendant
JUDGMENT
BY:
MOCUMIE,
J
HEARD
ON:
10
FEBRUARY 2015
DELIVERED
ON
:
10
MARCH 2015
MOCUMIE.
J
[1] Prior to the
advent of democracy in 1994 African people could not own any property
in their own names. The then municipalities
known as councils owned
the property and the occupiers and their children and descendants
were granted residential permits to stay
on such property. As a
direct consequence to that dispensation, first and second plaintiffs’
parents together with both plaintiffs
stayed on Erf (4)3557 Chief
Moroka, Mangaung under the residential permit appended to the papers
as ‘PL2’.
[2]
Between 1995 and 1996 the Local Transitional Council, Mangaung as the
owner of the property under its jurisdiction, in terms
of past
legislation, transferred its ownership of such properties into the
names of the occupiers and permit holders under the
Conversion of
Certain Rights to Leasehold Act 81 of 1988 which came into operation
on 1 January 1989
1
.
This meant that all occupiers and or residential permit holders
became owners subject to an enquiry by the Housing Committee of
the
Council, replaced by the third respondent under the new dispensation.
Upon a determination by such committee and having satisfied
certain
requirements, the occupants or the person who had satisfied the
requirements set, replaced the Council as owner.
2
[3] During 1991
plaintiffs’ parents were the residential permit holders of the
property in issue. The plaintiffs as their
children were registered
as although second plaintiff moved out for some time. The defendants
were later registered as lessees.
They stayed with the plaintiffs’
family for three months as agreed upon. At the end of three months,
the second plaintiff
returned home and the defendants’ left to
look for alternative accommodation.
[4] In 1997, Mrs
Constance Mogege, the plaintiffs’ mother, passed on, intestate.
The plaintiffs as her heirs, continued to
stay in the house as their
home. Ms Mogege’s death was reported to the municipality and
the first plaintiff was appointed
executrix of the deceased’s
estate and thus the only person authorised to dispose of the
deceased’s estate. The letter
of authorisation is ‘PL1 ’.
The first plaintiff stayed on the property on her own with her child
after Mrs. Mogege
passed on in 1997. She effected renovations to this
property to the amount of R18 000.
[5]
On 28 June 1999, she received a letter from the housing committee of
the third defendant informing her that on 3 June 1999 the
Adjudication Committee of the third defendant held a meeting. Her
application for the residential permit was unsuccessful. On 7
July
1999, she wrote to the director of the third defendant asking the
city
‘
to
provide our office with the relevant Act and or legislation under
which the Adjudication Committee reached its decision in the
above
matter. Further, kindly inform our office as to whether the relevant
authority makes provision for an internal appeal and
if so, the
higher internal authority to which appeals must be directed. Should
the Adjudication Committee be the relevant authority
to which appeals
must be directed we confirm our client’s instructions to apply
for appeal against the decision of the Committee
on 3 June 1999.
Furthermore, kindly provide our office with the information upon
which the decision was made together with the
reasons for the
decision. Reasons for appeal will be furnished as soon as we have
received the information requested above. The
third defendant failed
or refused to provide her with any answer or provide her with such
reasons or to process her appeal. That
was the last time she heard
from the third defendant.
[6] The next time
she heard anything from the third defendant about the property in
issue was when she received a letter from E.G.
Coopers and Sons
attorneys, representing the third and fourth defendants, dated 7 July
1999 informing her that the property was
registered in the
defendants’ names on 6 August 1999. She was also hearing for
the time about the defendants as occupiers
of the property at some
stage.
[7]
It is not surprising then that subsequent to this turn of events, the
defendants’ attempted to evict the plaintiffs from
what they
deem to be their property and home. The plaintiffs sought legal
advice from different sources to fight the threatened
eviction
without luck until they approached their current legal representative
which culminated into these proceedings. In this
application the main
relief the plaintiffs seek is the cancellation of the Title Deed TE
21650/99 (as envisaged in section 6 of
the Deeds Registries Act
3
).The
consequential relief sought by the plaintiffs is stated as follows in
the Particulars of Claim:
‘
2.That
the first plaintiff in her capacity as administrator and or executrix
in terms of letter of authority no. 10926/2006, is
authorised to pass
transfer of the property, namely Erf 3557 or 43557 Mangaung,
Bloemfontein, under Title Deed No.TE21650/99; alternatively
3. That
the registrar of the court or fifth defendant be authorised to sign
the necessary documentation to effect such transfer...’
[8]
The opposing affidavit submitted in resistance to the relief sought
in the application concludes with the following prayer:
’
die
kanselasie van Titelakte in hulle naam asook alle alternatiwe
eise...met koste van die hand gewys word.’ However on the
day
set out in the notice of set down duly received by the defendants’,
both defendants’ failed to make an appearance
and the
application proceeded on an unopposed basis. Third and fourth
defendants’ had previously indicated that they will
abide the
decision of the court. Sixth defendant took no issue with this
application from the onset as he was cited only as an
interested
party.
[9] The plaintiffs’
case on the papers and argument is that the Transfer Deed was
unlawfully executed and ought to be cancelled.
They assert that
defendants illegally and fraudulently so registered the house in
dispute under their names. The defendants’
have never held any
residential permit with regards to the property in dispute. That is
why they did not append any document except
the Title Deed in
dispute. The plaintiffs contend that the Transfer Deed was unlawfully
executed without their knowledge.
[10] The defendants’
case on the papers is that they bought the house from the plaintiffs’
late mother in 1997 as the
Title Deed reflects. Initially, they
stayed on the property for a period of three months on their own on
the property undisturbed.
During that period they do not know where
the plaintiffs and their late mother were staying. They deny that
they ever stayed on
the property as lessees. The plaintiffs
intimidated them and made threats against them to the extent that
they reported them to
the police. When the police failed to take any
steps against the plaintiffs, they moved out of the house in dispute.
They further
deny that that the registration was done illegally as
the plaintiffs allege or at the instance of the third and fourth
defendants
as the plaintiffs seem to insinuate. Despite all their
assertions they ask merely for the dismissal of the application with
costs.
They have made no counter claim for any order to establish the
validity of the steps they have taken which are inconsistent with
the
rights claimed by the plaintiffs.
[11] As I understand
the scheme of the Conversion Act, when it came into operation on 1
January 1988 Mrs Mogege’s residential
permit became eligible
for conversion into leasehold tenure, subject to the holding of an
inquiry by the Director General in terms
of section 2 of the same
Act. In the absence of the third and fourth defendants’ take on
this matter the only reasonable
conclusion that can be drawn from the
facts is that no proper enquiry was held by the third defendant. Had
such enquiry been held,
the plaintiffs as the occupiers of the
property in dispute would have been called to attend such enquiry. In
the worst case scenario,
in the event that the third defendant had
taken a decision to sell the property in issue, it would have been
obliged to advertise
such sale. The advert would, in all
probabilities, have warned the plaintiffs about the defendants’
closely guarded actions.
[12]
Of concern, is the fact that the property in dispute was disposed of
whilst the first plaintiff was the sole executrix of the
deceased’s
estate. Not to call her to a meeting or an inquiry as prescribed by
the Conversion Act was unlawful and points
to fraudulent conduct on
the part of the officials of the third defendant. That is why the
plaintiffs were never provided with
reasons why they were overlooked
by the Adjudicating Committee when it dealt with their property.
There is sufficient evidence
on the papers to indicate that the
property has always belonged to the Mogege family and none on the
part of the defendants. I,
in any event find that the purported sale
was contrary to the scheme of the Conversion Act and unlawful. The
transfer of the property
into the names of the defendants is null and
void
ab initio.
The
only option I am left with in order to redress this unlawful conduct
is to cancel the Title Deed TE 21650/99, as envisaged in
section 6 of
the Deeds Registries Act.
[13] The general
rule is that the winning party must get its costs. I have no reason
not to follow this rule.
[14] In the result I
make the following order.
ORDER
1.
It is declared that the Deed of Transfer in relation to Erf 3557
Chief Moroka crescent, Rocklands Mangaung Bloemfontein Township,
registration Division IQ, Province of Free State, held by Certificate
of Township Title Number: TE 21650/99 is null and void
ab
initio.
2. The Registrar of
Deeds (Bloemfontein, Free State) (5
th
respondent) is
ordered to cancel the Deed of Transfer referred to in paragraph 1
above.
3. The Registrar of
Deeds (Bloemfontein, Free State) (5
th
defendant) is
ordered to cancel the Certificate of Ownership referred to in
paragraph 1 above registered in the names of Tlhakodi
Maaje Samson
Mapuoa and Mapino Mittan Mapuoa and register it in the names of the
first plaintiff, Ms. Ruth Mogege.
4. The first and
second respondents are directed to pay the plaintiffs costly jointly
and severally, the one paying the other to
be absolved.
B. C. MOCUMIE, J
On behalf of the
plaintiff: Mr. Khang
Instructed by:
Mphafi Khang Inc.
Bloemfontein
1
Its
purpose , as shown by the long title, was, to provide for the
conversion of certain occupational rights in development areas
for
leasehold, and for matters connected therewith.
2
See
Nzimande
v Nzimande & Another
2005
(1) SA 83
(W) for a useful discussion of the important legislative
history surrounding the Conversion Act and the categories of tenure
it
regulates. See also
Toho
v Diepmeadow City Council &Another
1993
(3) SA 679
(W);
Kuzwayo
v Representative of the Executor in the Estate of the late Masilela
[2011]
2 All SA 599 (SCA).
3
Deeds
Registries Act 47 of 1937
.