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[2015] ZAKZDHC 75
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Nxumalo N.O v Provincial Department of Housing KwaZulu Natal and Others (12356/2012) [2015] ZAKZDHC 75 (17 September 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO: 12356/2012
DATE:
17 SEPTEMBER 2015
In
the matter between:
LUCKY
CECIL NXUMALO
N.O
.....................................................................................
APPLICANT
And
PROVINCIAL
DEPARTMENT OF HOUSING
KWAZULU
–
NATAL
........................................................................................
FIRST
RESPONDENT
ESTATE
OF THE LATE DUDUZILE REGINA
SIKHAKHANE
.............................................................................................
SECOND
RESPONDENT
NONKULULEKO
KHUMALO
......................................................................
THIRD
RESPONDENT
REGISTRAR
OF DEEDS, KWAZULU –
NATAL
....................................
FOURTH
RESPONDENT
JUDGMENT
Date
of Judgment delivered: 17 September 2015
MARKS,
AJ
:
1)
The applicant Lucky Cecil Nxumalo in his
capacity as authorised representative of the estate of the late
Mhlupheki Hamilton Nxumalo,
seeks interdictory relief against the
four respondents in the following terms:
1.1)
an order interdicting the second and third respondents from
alienating, burdening or dealing with the property known as Erf
1…….
KwaMashu F pending the finalisation of this application;
1.2)
an order that the Registrar of Deeds be
directed to note a caveat on the Deed of Grant relating to such
immovable property;
1.3)
the First Respondent be ordered to transfer
ownership of such immovable property to the KZN Department of Local
Government and Housing
so that the Estate of the Late Mr
Nxumalo may be given the opportunity to purchase the aforesaid
property (this relief is
sought in terms of the notice of amendment
dated 22
nd
October 2013); and
1.4)
the Registrar of Deeds be authorised and directed to set aside the
registration of transfer to Duduzile Regina Sikhakhane and
(if
necessary) the third respondent.
[2]
UNDISPUTED FACTS OR FACTS WHICH ARE
COMMON CAUSE
2.1)
The applicant’s late father, Mr M.H Nxumalo was issued a
residential permit by the Township Manager on 20 September 1960
for
the immovable property which is a dwelling situated at Erf 1….
KwaMashu, KwaZulu-Natal
[1]
.
2.2)
On 2 August 1997, the applicant’s father died intestate.
Shortly after his passing both the applicant and the second
respondent (being his biological children) and other relatives were
residing in the residence
[2]
.
One Linda Thelma Nxumalo had been appointed representative of the
estate.
2.3)
On 5 June 1998 the second respondent, who is now deceased, purchased
the above mentioned property from the first respondent,
the
KwaZulu-Natal Department of Local Government and Housing, for
R3 000.00.
[3]
The property
was then transferred into her name on 13 November 2003
[4]
.
2.4)
On 13 December 2006 the third respondent purchased the said property
from the estate of the second respondent, duly represented
by Mathobi
Agnes Sikakhane,
[5]
for the sum
of R43 506.00
[6]
. The
property was duly transferred and registered in her name on 16 May
2012
[7]
. She has been residing
in the property since 2007 or about eight years.
2.5)
On 5 September 2007, the applicant was appointed as the
representative of his father’s estate by the Magistrates’
Court Ntuzuma
[8]
. During these
proceedings the Magistrate Mr Ngubane erroneously made an order that
the said property belonged to the deceased and
therefore the property
remains the estate property which must devolve upon the heirs
[9]
.
2.6)
During June 2009, the applicant discovered that the third respondent
had purchased this property. He then approached the Verulam
Justice
Centre which dispatched a letter to the offices of Krish Naidoo who
was the attorney dealing with the transfer of the property.
A letter
from the office of Krish Naidoo dated 3 June 2009 with the annexed
Deed of Sale indicated the property had been legally
sold and that
the third respondent is a legal occupant of the property
[10]
.
2.7)
On 27 February 2012 an email correspondence was sent by Verulam
Justice Centre to Krish Naidoo enquiring whether transfer had
been
passed to the third respondent. The reply was that the file was
closed.
2.8)
On 15 February 2013 the applicant then launched the present
application on an urgent basis. On that date the matter was adjourned
sine die
with costs reserved. On 14 January 2014 an application to amend the
Notice of Motion was granted.
2.9)
On 21 October 2014 when the matter was adjourned, both counsel for
the applicant and the third respondent were present in chambers
with
Moodley J when discussions took place and certain issues were raised.
The issues that were discussed were formulated in a
typed memorandum
which was signed by the Judge and attached to the order of court.
Certain instructions were given to Mr
Seedat
and Mr
Naidoo
.
The memorandum reads as follows: –
‘
The
following issues were discussed:
1
proper service of all the pleadings by the
applicant on all the relevant parties;
2
Not satisfied with State attorney’s
notice to abide. Need to explain transfer and whether alternative
property can be allocated.
3
3
rd
Respondent purchased property via funding from the Dept. of Human
Settlements. Wants to retain property.
4
Applicant requires property to be
retransferred to estate. Family home and sentimental reasons.
5
Mr Naidoo to investigate Judicare
appointment. 3
rd
respondent has difficulty placing him in funds.
6
Both legal representatives to investigate
whether another property is available for allocation to the parties.
7
Parties to make relevant enquiries and
revert by end February 2015.’
2.10)
Notice of set down together with the returns of service on the
parties were filed on 13 August 2015, and the matter was set
down for
argument on 27 August 2015. The first respondent filed a notice
to abide the decision of the court.
3.1)
At the hearing, it became apparent that counsel for the applicant, Mr
Seedat,
was attempting to introduce a new ground to the applicant’s
argument that did not form part of the papers,
inter
alia
that the Director – General
had not complied with the provisions of The Conversion of Certain
Rights into Leasehold of Ownership
Act 81 of 1988.
3.2)
Mr
Khan
for the third respondent quite correctly objected which led Mr
Seedat
moving for an application for a postponement, in order to make
application at a later date for leave to file supplementary
affidavits.
The application for a postponement was opposed and Mr
Khan
indicated that if it could be possible with the consent of Mr
Seedat
and leave of the Court, that if he was
given leave to argue the matter first then Mr
Seedat
could decide whether he would still seek a postponement. This was
done and Mr
Seedat
withdrew
his application. The matter was then argued.
ARGUMENT
3.3)
The applicant in its heads of argument, and Mr
Seedat
in oral argument, contended that only the representative of the
estate of the late Mr Nxumalo had the right to purchase the property
from the first respondent, yet the second respondent clandestinely
and without permission of the applicant or his family purchased
the
property from the first respondent. When the second respondent passed
away, the representative of the estate sold the property
to the third
respondent. As the second respondent had thus acted in
fraudem
legem
and
contra
bones mores
, the contracts of sale were
both illegal. Further, he contended that the Court is obliged to take
judicial notice of the Convention
of Certain Rights into Leasehold of
Ownership Act 81 of 1988. (hereinafter “the Act”). As the
procedures laid down
in the Act were not complied with, the initial
sale of the property to the second respondent was rendered a nullity.
Further, there
is no evidence that the prescribed enquiry was held,
the Court must draw an adverse inference and this will provide
corroboration
that the second respondent in purchasing the property,
and the Director – General in selling the property to her, did
not
do so within the prescripts of the Act. On that basis, the court
should grant the order prayed in the interest of justice and equity.
3.4)
Mr
Seedat
then referred the court to
Nzimande v
Nzimande and Another
2005 (1) SA (W)
and the Moodley J’s aforementioned memorandum.
3.5)
The third respondent in its heads of argument, and Mr
Khan
in oral argument, contended that the
relief sought cannot be granted for the following reasons: firstly,
the applicant’s late
father was issued with a residential
permit to occupy the immovable property and ownership of such
property was not transferred
to him before his death; secondly the
property was legally purchased by the second respondent who took
transfer into her name;
and thirdly the third respondent
bona
fide
purchased such property and
transfer was registered into her name in 2012.
JUDICIAL
NOTICE
4.1)
A Court is obliged to take judicial notice of an act of Parliament,
and I must therefore consider the provisions of the Act.
The purpose
of the Act was to provide for the conversion of certain rights of
occupation into leasehold or ownership and for matters
connected
therewith.
Section
2(1) of the Act is pre-emptory and stipulates that the Director –
General shall conduct an inquiry in the prescribed
manner in respect
of affected sites in order to determine who shall be declared to have
been granted a right of leasehold or ownership
in regard to such
sites.
Section
2(2) requires the Director – General to publish a notice
indicating that such enquiry is to be conducted.
Section
2(3) is discretionary and confers powers upon the Director –
General to:
a)
give effect to any agreement or transaction in relation to the rights
of a holder of site permit;
b)
give effect to any agreement or transaction in respect of such rights
entered into or made before the death of the last holder;
c)
consider any intestate heir of the last such holder to have been
granted a right of leasehold or ownership in respect of
the
site concerned;
d)
give effect to any court order.
4.5)
However, there is no evidence to suggest that the Director –
General or his delegate did not act within the prescripts
and
confines of the Act in making his determination. There is no
onus
upon the second or third respondents to produce evidence relating to
the inquiry as envisaged in section 2(1) of the Act. Furthermore,
section 2(3) of the Act is discretionary. In any event the second
respondent was also the biological daughter of the deceased,
and
therefore entitled to occupy and purchase the property which she did.
Moreover, these allegations are nowhere to be found in
the papers or
in the applicant’s heads of argument for that matter.
THE
JUDGE’S MEMORANDUM
5.1)
The memorandum drafted by Moodley J is not an order of court.
Moreover, paragraph 6
[11]
thereof does indicate that Moodley J on the ‘face of it’
indicated that it would appear that the correct party
to which the
house must be transferred to would be the applicant, as indicated in
the letter at para 9.
[12]
However, even if this was mentioned in chambers, there is nothing
untoward in having a
prima
facie
view of a matter. However, only after having regard to all the
papers, the affidavits, heads of argument and hearing oral argument
can a court be in a position to evaluate the evidence in its totality
and make a proper determination accordingly.
[6]
The
Nzimande
[13]
decision that Mr
Seedat
referred to in oral argument does not assist the applicant’s
case either. It is distinguishable on the facts in that the
court
there was confronted with a customary law that did not allow transfer
of ownership of immovable property to women, a law
which is
unconstitutional. In this matter, the Assistant Director –
General transferred the property to the second respondent,
who was
also a heir to the deceased estate. She had been occupying, leasing
and residing in the property with her children at the
time she
purchased it. This sale was thus legal and within the prescripts of
the Constitution
[14]
. After
the second respondent died, the sale of the property by the
representative of her estate to the third respondent was also
legal,
and he thus remains the legal owner.
[8]
CONCLUSION
8.1)
The applicant has failed to establish a case for the relief he seeks
on the papers. This entitles the third respondent to an
order
dismissing such application.
[9]
COSTS
9.1)
In considering the issue of costs, the Court had a discretion which
is to be exercised judicially. The Court is required to
take into
account the circumstances of the case, the issues at hand, the
conduct of the parties and any other related circumstances.
9.2)
The general rule is that the costs follow the result. There are no
circumstances in this matter for the court to deviate from
this
general principle.
9.3)
Notwithstanding the fact that the third respondent has been
unnecessarily occasioned with costs in this matter the Court does
not
deem it fair and equitable that costs be awarded on the scale of
attorney and client, as the Court must guard against censuring
a
party by way of a punitive cost order when with the benefit of
hindsight a course of action taken by a litigant turns out to
have
been a lost cause.
[10]
ORDER
10.1)
The application is dismissed with costs, including the reserved costs
occasioned by the adjournments on 15 February 2013 and
21 October
2014.
S
MARKS, AJ.
APPEARANCES
For the
Applicant: Adv Seedat
instructed by
Shaheen Seedat & Company, Durban.
For the
Respondents: Adv S Khan,
instructed by
Krish Naidoo & Associates, Durban.
Date of Hearing:
27 August 2015.
Date
of Judgment: 17 September 2015.
[1]
Annexure
B to the applicant’s founding affidavit of the papers: p 15.
[2]
Applicant’s
founding affidavit para 10 of the papers: p 8.
[3]
Annexure
AA to the third respondent’s answering affidavit of the
papers: p 46, duly signed by Dr Sikhakhane and CJH Olivier
in her
capacity as Assistant Director.
[4]
Annexure
BB to the third respondent’s answering affidavit of the
papers: p 47.
[5]
Annexure
I to the papers: p 76 (letter of authority to transfer the property
issued by the Master of the High Court and dated
10 November 2008.)
[6]
Annexure
CC to the third respondent’s answering affidavit of the
papers: p 48 – 51, duly signed by both parties.
[7]
Annexure
DD to the third respondent’s answering affidavit of the
papers: p 52 – 54.
[8]
Annexure
A to the applicant’s founding affidavit of the papers: p 14.
[9]
Annexure
C – D to the applicant’s founding affidavit of the
papers: p 17 – 26.
[10]
Annexure
F of the applicant’s founding affidavit of the papers: p 27 –
28.
[11]
Judges
notes signed by Moodley J on 21 October 2014.
[12]
Letter
handed in by Mr Seedat on the date of argument (not objected to by
Adv Khan)
[13]
Nzimande
v Nzimande and Another
2005 (1) SA 83
W.
[14]
The
Constitution of the Republic of South Africa Act,
1996
.