About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 190
|
|
Abdul and Another v Jacobs and Others (A542/12) [2014] ZAGPPHC 190 (19 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA )
Case
number: A542/12
Date:
19 March 2014
In the matter
between:
ANVER LESLIE
ABDULL
.......................................................
FIRST
APPELLANT
KATY SUSAN
ABDULL
......................................................
SECOND
APPELLANT
And
DEON SHERLIN
JACOBS
.................................................
FIRST
RESPONDENT
CHARMAINE
FLORENCE JACOBS
..........................
SECOND
RESPONDENT
THE DIRECTOR
GENERAL OF THE
DEPARTMENT OF
HOUSING, GAUTENG
PROVINCE
........................................................................
THIRD
RESPONDENT
THE MEC FOR THE
DEPARTMENT OF
HOUSING, GAUTENG
PROVINCE
..........................
FOURTH
RESPONDENT
THE REGISTRAR OF
DEEDS
(PRETORIA
)....................................................................
FIFTH
RESPONDENT
JUDGMENT
MOSEAMO AJ
[1] This is an
appeal against the decision of this court delivered by Justice Fine
dismissing appellants’ application with
costs including
reserved costs.
[2] Appellants
applied for an order (a) cancelling Title Deed no. T 049127/2006
which deed holds property known as Erf 486 Geluksdal
Township (the
property) in the names of the first and second respondents. (b)
Declaring that the Director General of the Department
of Housing,
Gauteng Province, hold a hearing for purposes of determining who the
rightful claimant in respect of the property is.
[3] Appellants
joined the Director General and MEC for the Department of Housing as
third and fourth respondents respectively. Registrar
of deeds was
also joined as the fifth respondent. The third, fourth and fifth
respondents did not participate in these proceedings
and therefore
any reference to the respondents refers to first and second
respondents.
[4] The claim arose
from transfer of property by the Ekurhuleni Municipality (the
municipality) to the first and second respondents.
[5] The version of
the appellants is that the second appellant’s mother was the
lessee of Erf 486 Geluksdal Township (the
property). She passed the
lease to the first and second appellants in 1990 when she could not
afford to pay rental. Appellants
took over the lease. Appellants
moved out of the property in 1995 and bought their own property but
later returned to the property
when they could not keep up with the
loan repayments. They later entered into a sale agreement with the
Brakpan Town Council as
the seller of the property and the appellants
as purchasers. According to appellants the property was supposed to
have been transferred
to them.
[6] The version of
the respondents is that they lodged a claim with the municipality to
be awarded ownership of the property and
they were awarded same by
the municipality.
[7] Appellants
contend in their heads of argument that the municipality erroneously
registered the property in the names of first
and second respondents.
The basis of this contention is that appellants were the lessees of
the property and they subsequently
concluded a sale agreement with
the municipality. Their argument is that the property ought to have
been transferred to them as
a result of the concluded sale agreement.
[8] Appellants
submit that it is likely that the process that was undertaken by the
appellants to have property transferred to them
was in fact used to
effect transfer to the respondents.
[9] It appears that
a central question in this matter is the validity or otherwise of the
transfer of ownership by the municipality.
[10] It is trite
that the supporting affidavit must set out the cause of action and
failure to do will entitle the respondents to
ask the court to
dismiss the application on the ground that it discloses no basis on
which the relief can be granted.
[11] In BAYAT AND
OTHERS V HANSA AND ANOTHER
1955 (3) SA 547
(N) it was held that an
applicant for relief must make his case and produce all evidence he
desires to use in support of it in
his affidavits filed with the
Notice of Motion.
[12] In his founding
affidavit the first appellant states that: he became aware that the
property had been transferred to the names
of the first and second
respondents’ names. He does not know how the property was
registered in the names of the first and
second respondents when he
had signed a lease agreement and subsequently signed a sale agreement
with the same council. In 2007
he became aware that the first
respondent had lodged a claim with the municipality to be awarded
ownership of the property. He
had also lodged a claim with the
municipality. Upon enquiry from the municipality he was advised that
he would be called to a hearing.
[13] In LEGATOR
MECKENNA V SHEA
2010 (1) SA 35
at 44 H-I the court stated that:
“in accordance
with the abstract theory the requirements for the passing of
ownership are twofold, namely delivery –
which in case of
immovable property is effected by registration of transfer in the
deeds office coupled with the so called real
agreement…”
It was further
stated that the essential elements of the real agreement are an
intention on the part of the transferor to transfer
ownership and the
intention of the transferee to become the owner of the property. The
abstract theory does not require a valid
underlying contract, for
example sale.
[14] In the present
case the registration of the property in to the names of the
respondents has taken place; the second enquiry
in terms of the
McKenna case is whether there was an intention on the part of the
transferor to transfer ownership and the intention
on the part of the
transferees to become the owners of the property.
[15] There is
nothing in the founding affidavit to suggest that the municipality
did not have the intention to transfer the property,
in fact the
first appellant in his founding affidavit states that he does not
know how the property was registered in the names
of the Respondent
when they had signed an agreement with the council.
[16] In my view
ownership has passed to the respondents. The appellants have not
shown any mistake or lack of intention on the side
of the
municipality to transfer ownership that can vitiate the transfer.
[17] Appellants
contend that failure by the respondents to provide information
regarding the type of documents submitted by them
to the municipality
confirms their submission that the municipality committed a clerical
error. In this regard appellant referred
the court to the case of
KHUZWAYO V EXECUTOR, ESTATE OF THE LATE MASILELA
2011 (2) ALL SA 599
(SCA)
[18] It is trite
that the applicant must make out a prima facie case in his founding
affidavit. In my view the appellants have failed
to make out a case
for the respondent to answer.
[19] The case of
khuzwayo referred to by the appellants is different from the present
case in that:
Khuzwayo, the
appellant in that case, had applied for a site and later handed back
the site after failing to pay the money required
by the municipality.
Masilela was then handed the site and he paid the required sums and
built a house on the site. His family
had been staying on the
property for 18 years before it was transferred to Khuzwayo. Khuzwayo
had no claim to the site as she was
not a permit holder or an
occupier. The court held that the transfer was a clerical error, and
made an order for the cancellation
of the deed of transfer.
[20] In the present
case the respondents and the appellants lodged a claim for ownership
of the property. The municipality had two
competing claims that they
had to decide on.
[21] According to
appellants’ heads of argument, appellants lodged their claim
for ownership during 2005 and their subsidy
was approved on 27
September 2005. According to the Deed of Transfer the agreement to
transfer ownership of the property to respondents
was concluded on
the 9th September 2005, which was prior to the approval of the
appellants’ subsidy scheme. Therefore the
submission that the
transfer was as a result of a clerical error stands to be rejected.
[23] In my view the
court a quo correctly found that there has been a proper transfer of
ownership in that the appellants, in their
papers have not shown that
the necessary intention on the part of the municipality or the
respondents was lacking.
[24] Appellants
submit that respondents a quo had not raised issue of non joinder as
part of their opposition to their application.
[25] In NGCWASE AND
OTHERS V TERBLANCHE NO. AND OTHERS
1977 (3) SA 796
AD it was held
that the court can mero metu raise an issue of non-joinder to
safeguard the interest of third parties.
[26] I agree with
the appellant that the court has often adjourned proceedings for a
party with substantial interest in the matter
to be joined. I also
agree that in the case of Khuzwayo mentioned above the court ordered
cancellation of the registration of ownership
without requiring the
municipality to be joined.
[27] In my view
failure to join an interested party is not always fatal, it will
depend on the circumstances of each case. In the
present case the
municipality has a direct and substantial interest in the possible
order cancelling the transfer. However considering
the fact that the
appellants’ founding affidavit does not disclose a cause of
action, joining the municipality would not
have cured the defect.
[28] Appellants
submit in their heads of argument that the dispute between first and
second respondents and the appellants should
be dealt with in terms
of Section 24B of Conversion of Certain Rights into Leasehold and
Ownership Act 81 0f 1998 (the Act).
[29] Section 24B of
the Act provides for the establishment of an adjudication panel and
an appeal panel. It also provides for the
appointment of adjudicators
to adjudicate on disputed cases in order to determine the lawful
beneficiary to whom residence or property
must be transferred.
[30] Section 24B of
the Act does not provide a basis on which the court can cancel
transfer of ownership of a property, rather it
provides for a process
that must take place before the transfer takes place. In the absence
of the grounds for cancellation of
the transfer of ownership then
Section 24B of the Act does not assist the appellants in their case.
[33] Appellant
submits that municipality did not consider all the factors in
transferring the property to the respondents. Appellants
put forth
the following question: “what were the facts considered to rank
the respondents above other claimants like the
appellants.”
[34] The only way
the court could determine whether the municipality has taken all
factors in to consideration is if the municipality
was joined as a
party to the proceedings alternatively if the appellants were in
possession of the reasons from the municipality
for their decision to
transfer.
[35] In my view,
looking at all the facts, especially the fact that there were two
competing claims; it appears that the approval
of appellants’
subsidy came after the municipality approved the respondents’
claim; municipality decided to transfer
ownership to the respondents.
[36] In so far as
the appellants are challenging the procedure followed to arrive at
the decision or the reasonableness of the decision
to transfer
ownership to the respondents, then PAJA is applicable and therefore
the application should have been in terms of PAJA.
[37] It follows
that, in my view, the court a quo correctly found that no case was
made out for the relief sought. Consequently
the appeal must fail.
The following order
is made:
The appellants’
appeal is dismissed with costs
MOSEAMO AJ
ACTING JUDGE OF
THE HIGH COURT OF PRETORIA
I agree,
FABRICIUS J
JUDGE OF THE HIGH
COURT OF PRETORIA
I agree,
KGANYAGO AJ
ACTING JUDGE OF
THE HIGH COURT OF PRETORIA