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[2012] ZAKZDHC 74
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Ethekwini Municipality v Phyllis and Others (7081/2012) [2012] ZAKZDHC 74 (12 November 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO:7081/2012
In the matter between:
ETHEKWINI MUNICIPALITY
...................................................
Applicant
and
SINDISWE B PHYLLIS AND 24 OTHERS
..............................
Respondents
______________________________________________________
JUDGMENT
______________________________________________________
Delivered : 12 November 2012
M PILLEMER, AJ:
[1] The Applicant, the Ethekwini
Municipality, seeks an order against a number of individual
respondents for the cancellation of
the registration of residential
sites in their names in the Township of Luganda coupled with an order
that the registrar of deeds
is authorised “to act accordingly”.
The Applicant in addition prays for a declaration that it is entitled
to re-allocate
the sites to other persons as it deems meet.
[2] The papers reveal that each of
the respondents is the registered owner of an erf in the township and
that a title deed has been
issued to reflect such ownership;
registration having occurred in terms of s9 of the Less Formal
Township Establishment Act, 113
of 1991.
[3] In terms of s9(7) of the Act
“Ownership of the erf shall be deemed to have been transferred
on the date of registration
by the registrar of a deed of transfer”.
[4] What is sought therefore is an
order cancelling the title deeds and depriving the respondents of
ownership of their land and
conferring on the applicant the right to
allocate what was the respondent’s property to others.
[5] The Registrar of Deeds has not
been cited as a respondent and the registrar has not been given the
requisite seven days notice
required by
s 97
of the
Deeds Registries
Act, 1937
. I was informed from the bar that it was only after I had
asked a few days ago to see the report from the Registrar of Deeds
that
the papers were served on him and that a report is not yet
available.
[6] The properties in Luganda
Township were transferred at various dates in 1995. Some of the
persons who received transfer have
not collected their title deeds.
The respondents were alleged to fall into this category.
[7] The deponent to the founding
affidavit is the Manager: Conveyancing at the municipality. He has
annexed copies of the title
deeds of the respondents that reflect
their ownership, has explained that these were issued by the then
Town Council of the Borough
of Pinetown, which had developed the
township of Luganda in terms the Less Formal Township Establishment
Act and goes on to explain
that it took a while for the title deeds
to become available for collection and that some of the owners did
not come to collect
them. The Borough of Pinetown was incorporated
into the Durban Metropolitan Council in 1995 and persons who would
have had to report
to the Pinetown offices now had to report to the
Durban offices to collect their certificates. He testifies that the
respondents
failed to collect their certificates and failed to put up
structures on the sites as was expected of them when the sites were
allocated.
He then explains the attempts made to contact the
respondents, which largely involved publication in newspapers in
Durban. Enquiries
were also made at the sites themselves from
occupants in the area initially to no avail in relation to all of the
respondents.
There were some who have been located since the
application was launched and so no relief is being sought against
them. There is
some holding cost to the municipality for grass
cutting and the like and there are people on the waiting list for
housing who could
take up the sites. The deponent then asked for the
relief “in the interest of everybody”.
[8] An affidavit is also put up of a
Mr Mhlongo, who is described as a Principal Professional Officer
employed by the municipality.
He confirms the contents of the main
affidavit as it refers to him. There is no reference to him
whatsoever in the main affidavit
so his affidavit is completely
pointless and takes the matter no further.
[9] For a reason that is not
apparent on the file the court was persuaded to issue a
rule nisi
,
which was then served by publication in two newspapers. Considerable
costs have been incurred to date and while the social need
to have
the land developed and for the owners to make meaningful use of their
property is obvious, the applicant had to have a
cause of action
before it could come to court to deprive the respondents of their
ownership of the land that had been transferred
to them.
[10] The fundamental difficulty the
applicant faces is that in terms of s25 of the Constitution no one
may be deprived of property
except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
Mr Mkhize, who appeared
for the applicant, furnished detailed written
argument and in his oral address attempted to persuade me that there
is a law of
general application that applies and entitles the
applicant to the relief. He placed reliance on regulation 11 in
Chapter IV of
the Township Establishment and Land Use Regulations,
1986 promulgated under the Black Community Act of 1984 which make
provision
for an agreement to contain terms and conditions relating
to a breach and that such agreement must deal
inter alia
with
the failure to erect improvements within a given period which will
then be regarded as a breach of the terms on which the
land was made
available and the land may be withdrawn.
[8] I have misgivings as to whether
the regulations apply. But even if they do the regulations are of no
assistance to the applicant
without it first proving the terms of the
agreement in terms of which the land was allocated and the breach
giving rise to the
right to withdraw the land. Applicant fails to do
this, making no mention of the contracts in the papers and I was
informed from
the bar that it is having difficulty locating the
agreements that were signed at the time. In the absence of an
enforceable contractual
term that would confer such a right, short of
expropriation there is no immediately apparent basis in law to cancel
the respondents’
ownership and give their land to someone else.
[5] Mr Mkhize, in the alternative
when it was apparent that he was unlikely to persuade me that he was
entitled to relief on the
papers, asked for the application to be
adjourned to enable the applicant to attempt to locate the contracts
and to supplement
the papers. There does not appear to me to be any
point in doing this. If a cause of action can be sustained when and
if the contracts
are located then proceedings relying upon that cause
of action can be brought. The papers in the present application do
not make
a cause of action and there is no reason for an application
that is fatally defective to remain in limbo.
[6] The application is dismissed.
_______________________
M PILLEMER, AJ
Counsel for the Applicant: M I
Mkhize
Applicant’s Attorneys: Mbele
Dube and Partners
Date of hearing
: 9 November 2012
Date of Judgment
: 12 November
2012