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[2014] ZAFSHC 87
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Mangaung Metropolitan Municipality v Nomvalo and Others (1133/2014) [2014] ZAFSHC 87 (29 May 2014)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1133/2014
In the
matter between:-
MANGAUNG
METROPOLITAN MUNICIPALITY
….......................................................
Applicant
and
MZIWANDILE
GOODMAN NOMVALO
….................................................................
1
st
Respondent
TSHADI
BLANDINAH MOKGADI
….........................................................................
2
nd
Respondent
MALEHO
JOHN MOKGADI
…....................................................................................
3
rd
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
…........................................................
4
th
Respondent
HEARD
ON:
22 MAY 2014
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
29 MAY 2014
[1] In
the notice of motion the applicant sought an order directing the
second respondent to suspend building activities on a certain
erf and
that the applicant be authorised to demolish structures erected on
the property, and that the Registrar of Deeds (the fourth
respondent)
be prohibited from registering the property in the name of the first
respondent or any other person who may claim to
be the purchaser
thereof. In the alternative the applicant seeks an order
suspending building work on the property pending
the finalisation of
applicant’s investigation into the dispute surrounding the
ownership of the property (which has to be
concluded within 45 days)
and any proceedings instituted pursuant thereto. At the hearing Mr
Johnson, for applicant, proceeded
only with the alternative prayer.
[2] The
first respondent resides on the property in question, being 26275
Jonga street, Phahameng, Mangaung, Bloemfontein (the property).
The
founding affidavit alleges that the second and third respondents,
being Tshadi Blandinah Mokgadi and Maleho John Mokgadi,
are
registered co-owners of the property and reside on the property, but
no relief is sought against them. In the answering
affidavit
the first respondent says that the third respondent is the spouse of
the second respondent but left Bloemfontein during
2009 and has not
been residing at the property for the last five years and neither the
first nor the second respondent have any
idea where he is currently
staying. The sheriff’s return states that service of the
application on the third respondent
took place by handing it to a
person on the property. In the replying affidavit, in cavalier
fashion, the deponent says that
the second respondent “could
and should” have advised the third respondent of the
application.
[3] The
application is opposed by the first and second respondents.
They raise as points
in limine
that the Provincial
Department of Local Government and Housing and the Master of the
Supreme Court and the unidentified complainants
have not been joined.
The first respondent says he is building in terms of plans
approved by the applicant, which approval
has not been withdrawn, and
which the applicant apparently does not intend to withdraw.
[4]
This application followed upon a complaint lodged with the applicant
on 8 October 2012 by unidentified relatives of the second
respondent,
stating that the property was wrongly transferred to the second and
third respondents by the Provincial Government
in 2009, because the
Master’s Letters of Authority dated 17 July 2002 stated that
the property had to be transferred to three
persons. The
relatives of the second respondent stated that the property had not
been transferred to the correct beneficiaries.
The applicant
does not disclose who the complaint came from. An investigation
was opened.
[5] The
applicant attaches Letters of Authority issued by the Master of the
Supreme Court on 17 July 2002 stating that the second
respondent has
been authorised to take control of the assets of the estate of the
late William Reid who died on 6 December 1963.
The deponent to
the founding affidavit says that Reid was the owner of the property.
The Master’s Letters of
Authority state that the property
must be registered into the name of (1) Mathlodi Annah Reid, (2)
Phimdiwe Christinah Reid and
(3) Tshadi Blandinah Reid. Such
registration never took place.
[6] The
Deed of Transfer dated 4 March 2009 reflects that transfer of the
property from the applicant is given to the second and
third
respondents. The Deed of Transfer transfers the property to the
second and third respondents in terms of section 4(1)(b)
of the
Conversion of Certain Rights into Leasehold or Ownership Act 81 of
1988, on behalf of the Member of the Executive Council
responsible
for Housing in the Free State Provincial Government.
[7] The
applicant says the official from the Provincial Government who
authorised the transfer acted contrary to the Master’s
Letters
of Authority, in terms whereof the property had to be transferred to
the above-named three persons (the second respondent
and two others
who are not before court).
[8] In
the answering affidavit the first respondent says that the applicant
was involved in the transfer of the house, and consented
to the
transfer to the second and third respondent, and that the applicant
should explain its role in this transfer. These
allegations
elicit the response in the replying affidavit that an explanation of
the processes under Act 81 of 1988 would be superfluous
and
irrelevant, and “Even to the extent that the applicant was/may
have been involved in the process, the allegations hold
true”.
The applicant says the uncertainties need to be investigated
fully.
[9] The
first respondent says the Master had no authority to decide to whom
the leasehold should be transferred in terms of Act
81 of 1988. In
the replying affidavit the applicant does not give a direct response
to this allegation. The first respondent
also points out that
the complaint was made three years after the transfer of the property
to the second and third respondents.
The applicant has had 17
months plus 50 days to investigate this complaint.
[10] As
to the building activities of the first respondent, the following are
the relevant facts:
(1) On 20 April 2013 he applied to the applicant for
approval of building plans. In the application in the section
dealing
with Status of Ownership of the Property (p 53) first
respondent stated that he is the Erf Permit Holder of the premises.
The
space allows for three possibilities for an applicant for
the approval of building plans, namely (i) residential permit holder,
or (ii) Erf Permit holder, or (iii) title holder.
(2) On page 54 there is a “Declaration by Owner”.
That is completed by the first respondent. On the
previous
page the first respondent stated that he is not the owner
(title holder) but the Erf Permit holder. The first respondent
never tried to mislead anyone. He
bona fide
completed
the form.
(3) The applicant says in terms of section 4(3) of the
National Building Regulations and Building Standards Act 103 of 1977
the
first respondent was obliged to provide details of the owner. If
one looks at the application, the first respondent did not
therein
say he was the owner (title holder); he said he was the erf permit
holder. Where he gave details of the owner in
the declaration,
he gave his own particulars. The plans were approved by the
applicant, and the first respondent commenced
building.
(4) On 12 November 2013 the applicant addressed a letter
to the first respondent giving him notice to immediately suspend
building
activities on the site because he had not stated who the
owner of the property was.
(5) On 28 January 2013 an agreement of sale was entered
into in terms whereof the second respondent sold the property to the
first
applicant for R10 000, which has been paid in full.
[11] In
the answering affidavit the first respondent says he has obtained
permission from the applicant’s relevant department
for the
building, and does not fall within the purview of section 21 of Act
103 of 1977. In terms of section 21 of the Act
the magistrates’
court can direct that building operations stop if the court is
satisfied that such erection is contrary
to or does not comply with
the provisions of Act 103 of 1977 or any approval or authorisation
granted thereunder. Section
21 gives no power to the High
Court. If section 21 is the basis the applicant is coming to
court on, it has failed to satisfy
the court that the building is
contrary to the provisions of the Act. Mr Johnson, for
applicant invoked the common law.
In a situation like the
present where statutes govern the rights of the parties, it is not
justified to ignore the statutes and
rely only on the common law.
The first respondent made a
bona fide
error in stating
that he was the owner. The plans have been approved. The
fact as to who the correct registered owners
should be is, on the
applicant’s case, under dispute. Even if the first
respondent had correctly stated that the owners
are the persons named
in the title deed, namely the second and third respondents, the
complaint which the applicant is investigating
would have remained,
because the complainants say that the registration in the deeds
office is not correct.
[12] Mr
Roux pointed out that the applicant now requires 45 days for its
investigation.
Yet, it has had 50
days since the notice of motion was launched. The applicant
does not say what the nature of the investigation
is it intends to
make. It does not say why 17 months was not enough or what
action it intends to institute.
[13]
The requirements for a temporary interdict are (1) a prima facie
right, though open to some doubt (2) well-grounded apprehension
of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted (3) balance of convenience
in
favour of granting interim relief (4) absence of any other
satisfactory remedy (
Setlogetlo v Setlogetlo
1914 AD
221
,
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189;
Herbstein and Van Winsen,
The Civil Practice of the High Courts of
South Africa
5
th
Ed vol II (2009) 1456 - 1457).
[14]
The applicant fails on all the requirements for an interim interdict.
There are conflicting statements in the letters of authority
issued
by the Master and the Deed of transfer, done at the behest of the
Provincial Government. The actions of the Provincial
Government
are not merely mechanical (
Nzimande v Nzimande and Another
2005 (1) SA 83
(W) par [56], [67]). The Provincial Government
has not been joined. The first respondent has approved plans.
There is a procedure under Act 103 of 1077 for the setting aside of
approved plans by way of an appeal under section 9 of Act 103
of
1977. The applicant has decided not to follow that course,
which would have been far less complicated and less expensive.
In this application the applicant has clothed the issue as a dispute
about the approval of building plans. But the dispute
is about
who the true owner of the property is.
[15] As
to the alleged irreparable harm, the one who is going to suffer harm
is the first respondent who has put in R300 000 of
improvements. If
the complainants believe they have a case and are entitled to the
property, they should have instituted
action against the first
respondent.
[16]
The first respondent has contracted builders, they may suffer damages
if the work is stopped. The applicant does not
say why 45 days
would be crucial after such a long delay. The alternative
relief open to the applicant lies in an appeal
under section 9 of the
Act. The balance of convenience favours the respondents.
[17]
The applicant has failed to make out a case for any relief
ORDER
1. The
application is dismissed with costs.
____________
A. KRUGER, J
On
behalf of applicant: Adv J.M.C. Johnson
Instructed by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
On
behalf of 1
st
respondent: Adv L.A. Roux
Instructed by:
Kramer, Weihmann & Joubert Inc.
BLOEMFONTEIN