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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 17673/2022
In the matter between:
ANNA BOOYSEN First Applicant
VERONICA BOOYSEN Second Applicant
and
CITY OF CAPE TOWN First Respondent
THE OFFICE OF THE DEEDS REGISTRAR, CAPE TOWN Second Respondent
ANTHONY BOOYSEN Third Respondent
CHARMAINE LINDA BOOYSEN Fourth Respondent
Coram: Justice J Cloete
Heard: 17 May 2024
Delivered electronically: 20 May 2024
JUDGMENT
CLOETE J:
[1] The first and second applicants are sisters. The third respondent is their
nephew and the fourth respondent is his wife. On 21 October 2022 the
applicants launched this application, describing its purpose as follows: (a) a
review ‘to correct the wrongs that had been done by the respective
respondents regarding the property’ ; and (b) to ‘correct the legal wrongs
whose ripple effects are being felt by all of us through eviction proceedings
pending in the Magistrate’s Court’ . They made clear in the founding affidavit
that the application is brought in terms of s 6 of PAJA 1 read with s 33 of the
Constitution (pursuant to which PAJA was enacted).
[2] The dispute pertains to an immovable property, being erf […] Manenberg,
Cape Town (the property). At the time the application was launched the first
applicant and third and fourth respondents were all residing at the property.
Although not apparent from the papers it was confirmed during argument that
the first applicant has since vacated the property , as a consequence of which
the aforementioned eviction application brought by the third respondent has
been withdrawn. One of the points raised in limine by the City and third and
fourth respondents is that the second applicant lacks locus standi . I will
however assume in her favour, without deciding, that she has an interest in
the outcome of this matter.
[3] Although in their notice of motion the applicants sought an order setting aside
the ‘sale, purchase and transfer’ of the property by the first respondent (the
City) to the third and fourth respondents, the evidence of these respondents is
that no sale has been concluded, and the report of the second respondent
(Registrar of Deeds) confirms that the property remains registered in the
name of the City. It is accordingly not necessary to deal with this part of the
relief.
1 Promotion of Administrative Justice Act 3 of 2000.
[4] Apart from this the applicants seek orders: (a) setting aside a lease concluded
between the City and the third and fourth respondents in respect of the
property; (b) compelling the Registrar of Deeds to transfer the property from
the City to the first applicant ‘in her capacity as beneficiary’ of the property ;
and compelling the City to provide information relating to ‘the policies and
regulations’ utilised by it ‘in terms of acquisition, development, sale and
transfer’ of the property. The lease in question has an effective
commencement date of 8 April 2019, and its addendum records that for
purposes thereof the date of occupation by the third and fourth respondents
was 6 April 2017.
[5] Given that the applicants seek relief under PAJA they were required in terms
of s 7(1) thereof to launch this application without unreasonable delay and not
later than 180 days after the date –
‘(a) subject to subsection (2)(c), on which any proceedings instituted
in terms of internal remedies as contemplated in subsection
(2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned
was informed of the administrative action, became aware of the
action and the reasons for it or might reasonably have been
expected to have become aware of the action and the
reasons…’
(Section 7(2)(c) is not relevant since the obligation to exhaust internal
remedies has not been raised by any of the respondents).
[6] In their founding affidavit the applicants allege that after the death of their
sister on 4 April 2017 (she was the registered tenant of the property) they
attended at the Manenberg office of the Department of Human Settlements
and met with a Mr Omar Paulse to arrange a meeting for purposes of
transferring the ‘rates lease’ from the name of their late sister to someone else
in the family. Mr Paulse promised to advise them of a suitable date when this
discussion could take place. They further allege that:
‘16. We were still awaiting the call from Mr Paulse when we heard
through the neighbours that our nephew, who is the Third
Respondent was told by Mr Paulse he can purchase the house
from him, and in the interim have the lease in his name so they
can facilitate this sale transaction for him. We immediately after
hearing that information rushed to the rand (sic) office and
enquired why there was a deviation from the normal process of
being a rates lease holder and why they were busy transferring
the house into the Third Respondent’s name.
17. It is also at this time we were told by a Mr Mayekiso that this
house does not belong to us, instead belongs to the City of
Cape Town and they can do whatever they want to do with their
property. We were shocked and we informed him we knew the
property belonged to us as beneficiaries of it since we were the
children of our mother who had passed away.
18. We further informed him the previous government never said the
house belonged to the City of Cape Town Municipality, but
rather their words were “(t)his is your new home now”. We
requested to have a meeting with the City of Cape Town,
however that request fell on deaf ears.
19. On the 24 th October 2018 we decided to write a letter to the
Manenberg Human Settlement expressing our concerns and
requesting our home rental lease to be transferred to myself as
the First Applicant…
24. Our attorney also tried to mediate with the City of Cape Town by
[writing] them two letters, on the 20
th January 2022 and 21 st
February 2022, requesting for reasons and attempting to
mediate the unfavourable situation we currently find ourselves
in…
27. The property was leased and will now be sold by the First
Respondent on or about 06.04.2017 (sic) to the Third and
Fourth Respondents. I am however not certain when the transfer
of the property will take effect…’
[7] In the letter to the Manenberg Human Settlements Contact Centre of
24 October 2018 (annexed to the founding affidavit) the applicants stated that
Mr Paulse ‘is currently busy transferring our home to our nephew whom is a
backyarder’. It is thus clear that by that date the applicants were aware of
what they regard as the impugned decision. The letters of the applicants’
attorney dated 20 January and 21 February 2022 take the issue of delay in
launching these proceedings no further since although ‘adequate’ reasons
were indeed requested in the letter of 20 January 2022, no formal steps were
taken thereafter to procure them prior to this application being instituted 9
months later; and in any event the 90 day period for requesting reasons after
the applicants became aware of the administrative action complained of had
long since passed by 20 January 2022.
[8] Accordingly, on the applicants’ own version, they were aware of the impugned
decision at the latest on 24 October 2018, and the failure to provide adequate
reasons by 21 February 2022, but only launched this application on
21 October 2022. Moreover, although the applicants had a further opportunity
to deal with the delay in a replying affidavit (since it was pertinently raised in
limine by both the City and the third and fourth respondents) they elected not
to depose to any replying affidavit. They have also had legal representation
since at least January 2022.
[9] I am of course bound by the Supreme Court of Appeal decision in OUTA v
South African National Roads Agency Ltd
2 where it was held that:
‘[26] At common law application of the undue delay rule required a
two stage enquiry. First, whether there was an unreasonable delay
and, second, if so, whether the delay should in all the circumstances be
condoned (see eg Associated Institutions Pension Fund and others v
Van Zyl and others 2005 (2) SA 302 (SCA) para 47). Up to a point, I
think, s 7(1) of PAJA requires the same two stage approach. The
difference lies, as I see it, in the legislature’s determination of a delay
exceeding 180 days as per se unreasonable. Before the effluxion of
180 days, the first enquiry in applying s 7(1) is still whether the delay (if
any) was unreasonable. But after the 180 day period the issue of
unreasonableness is pre- determined by the legislature; it is
unreasonable per se. It follows that the court is only empowered to
entertain the review application if the interest of justice dictates an
extension in terms of s 9. Absent such extension the court has no
authority to entertain the review application at all. Whether or not the
decision was unlawful no longer matters. The decision has been
“validated” by the delay (see eg Associated Institutions Pension Fund
2 [2013] 4 All SA 639 (SCA).
para 46). That of course does not mean that, after the 180 day period,
an enquiry into the reasonableness of the applicant’s conduct becomes
entirely irrelevant. Whether or not the delay was unreasonable and, if
so, the extent of that unreasonableness is still a factor to be taken into
account in determining whether an extension should be granted or not
(see eg Camps Bay Ratepayers’ and Residents’ Association v Harrison
[2010] 2 All SA 519 (SCA) para 54).
[10] The applicants have not sought condonation in respect of the delay nor an
extension in terms of s 9 of PAJA, and the City, third and fourth respondents
have not agreed to any such extension. More fundamentally the applicants
also do not explain the reason for the delay which impacts directly on the
interests of justice requirement in s 9 of PAJA as was explained by the
Supreme Court of Appeal in Camps Bay Ratepayers’ and Residents’
Association v Harrison:
3
‘[54] …And the question whether the interests of justice require the
grant of such extension depends on the facts and circumstances of
each case: the party seeking it must furnish a full and reasonable
explanation for the delay which covers the entire duration thereof and
relevant factors include the nature of the relief sought, the extent and
cause of the delay, its effect on the administration of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.’
[11] I accept that in heads of argument filed on their behalf the applicants’ counsel
attempted to make out a case for condonation but it was incumbent on the
applicants themselves to have done so in their papers. Put simply there is
3 [2010] 2 All SA 519 (SCA) at para [54] referred to in OUTA above.
nothing before me to enable me to exercise a discretion to come to the
assistance of the applicants in respect of the delay which is very lengthy. That
is the end of the matter and the application falls to be dismissed on this
ground alone.
[12] However given that it is desirable, where possible, for a lower court to decide
all issues raised in a matter before it ,
4 I also deal with the review relief itself.
The Constitutional Court in Bato Star5 stated as follows:
‘[27] The Minister and the Chief Director argue that the applicant did
not disclose its causes of action sufficiently clearly or precisely for the
respondents to be able to respond to them. Where a litigant relies upon
a statutory provision, it is not necessary to specify it, but it must be
clear from the facts alleged by the litigant that the section is relevant
and operative. I am prepared to assume, in favour of the applicant, for
the purposes of this case, that its failure to identify with any precision
the provisions of PAJA upon which it relied is not fatal to its cause of
action. However, it must be emphasised that it is desirable for litigants
who seek to review administrative action to identify clearly both the
facts upon which they base their cause of action, and the legal basis of
their cause of action…’
[13] A similar situation arises in the present matter and I will adopt the same
approach as in Bato Star. It is clear from the notice of motion that the actual
impugned decision is the conclusion of the lease between the City and the
4 Theron N.O. v Loubser N.O.: In Re Theron N.O v Loubser 2014 (3) SA 323 (SCA) at paras [21],
[24] and [26]; Spilhaus Property Holdings (Pty) Ltd and Others v MTN and Another 2019 (4) SA
406 (CC) at para [44].
5 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4)
SA 490 (CC).
third and fourth respondents. The only “procedural irregularities” relied upon
by the applicants are set out in the founding affidavit as follows:
‘28. We are advised that in terms of law as earlier highlighted we are
entitled to procedural protection in that, with everything that
affects us we ought to be consulted and allowed to participate in
whatever process that may unfold against and affecting our
lives. We categorically state we were never approached by
anyone prior to our property being leased and being in the
process of being sold and we equally know not of the reason for
the said lease and sale…
30. The processes followed in this transaction requires a judicial
microscope to ensure that we are not being robbed from what
we believe is rightfully ours…
32. When we get the record of the processes followed especially
from the offices of First Respondent we are certain more will be
revealed…
33. We equally pray for supplementing these papers at a later stage
once we receive more information as requested…’
[14] The applicants ’ papers were never supplemented and there is no rule 53
record before the court. The complaint that the applicants were required to be
consulted by the City is not identified with reference to any mandatory and/or
material procedure or condition prescribed by an empowering provision for
purposes of s 6(2)(b) of PAJA. The deponent to the City’s answering affidavit
was Ms Grace Blouw, the Manager at Tenancy Management, Public Housing.
She pointed out that the applicants do not seek to set aside the City’s decision
to normalise the third respondent’s tenancy but only the resulting lease
agreement. Accordingly even if the lease is set aside on review the City’s
decision to normalise that tenancy remains intact.6
[15] The first applicant alleges that she, together with her siblings, her mother who
passed away in 2000, and the third respondent, first took occupation of the
property in around 1984 after being forcibly relocated from Table View under
the apartheid government. The applicants’ late sister who passed away on
4 April 2017 was, in the City’s records, the ‘previous existing tenant’ . On
4 October 2018 the Directorate: Human Settlements and the Department:
Home Ownership Transfers & Tenancy Management conducted a house visit
at the property. Its subsequent report dated 11 February 2019 indicated inter
alia the following. The third respondent had filed a housing application on
9 December 2005 at a time when the first applicant was absent from the
property (this was during the period 2000 until 2007). According to the City’s
records the date of original tenancy of the registered tenant ( the applicants’
late sister) was 2 June 2000.
[16] The report indicated further that the third respondent was not part of the
original family housed in 2000 but part of a previous tenancy dated 1984. He
moved out in 1999 but moved back during 2001 and occupied a structure in
the yard with his family. He was employed. The fourth respondent moved in
with the third respondent during 2001. She was also employed. Their two
daughters, both of whom were majors, were unemployed. Importantly, the first
applicant was not part of the original family housed per the City’s records in
6 In terms of the well -established Oudekraal principle, Oudekraal Estates (Pty) Ltd v City of Cape
Town and Others 2010 (1) SA 333 (SCA).
2000 for the reason already given. After she returned in 2007 she occupied
the main house with her two sons, one of whom was an unemployed adult.
[17] The City, applying its policy referred to below, determined that the third
respondent qualified as an ‘unlawful occupant’ since the tenant had passed
away and he was not a member of the ‘original household’ when the
applicants’ late sister was registered as the tenant in 2000. (The fourth
respondent was in a similar position). It was then recommended that the third
respondent’s tenancy be regularised in terms of clause 1.3 of the City’s
Unlawful Occupation Policy
7 which provides that unlawful occupants who
moved onto a property prior to 1 March 2006 will be considered for
‘normalisation’ subject to their meeting the eligibility criteria, which the City
was satisfied the third respondent had met.
[18] At a meeting of the City’s Cases Committee (which Ms Blouw chaired) on
21 February 2019 it was resolved that the third respondent’s tenancy be
normalised on this basis, subject to there being evidence on file confirming
that he was still in occupation (which was subsequently provided), and that he
be given the opportunity to purchase the property once the normalisation
process was complete. It was further resolved that the third respondent be
entitled to move into the main dwelling on his own volition. Accordingly, on the
City’s version: (a) neither applicant had filed a housing application in respect
of the property when the third respondent’s application was approved; and
7 Policy on the Unlawful Occupation of Council Rental Stock, approved on 27 March 2008,
C90/03/08.
(b) sadly in the circumstances, the applicants have no entitlement to the
property as “beneficiaries” of their late mother who passed away in 2000.
[19] The Unlawful Occupation Policy was annexed to the City’s answering
affidavit. Ms Blouw explained that in cases such as the present, where an
original tenant of a property belonging to the City passes away and there are
persons left in the property, the position is regulated by the City’s Housing
Policy which must be read together with the Unlawful Occupation Policy. The
latter Policy refers to an unlawful occupant as one who has been left behind
by a tenant who has died. Whereas clause 1.3 provides that unl awful
occupants who moved in prior to 1 March 2006 will be considered for
normalisation subject to their meeting the eligibility criteria, clause 1.4
provides that unlawful occupants who moved in after 1 March 2006 must
vacate, failing which legal action will be taken for their eviction unless they are
the next qualifying applicants for assistance on the waiting list or qualify in
terms of clause 1.2 which pertains to children of ‘former tenants’ which is not
the case in the present matter. The City also confirmed that while the first
applicant is recorded as only having moved back into the property in 2007, the
second applicant is not recorded as having lived in the property at all. Indeed
in her confirmatory affidavit the second applicant confirmed that she resides at
a different address. Save for one or two minor discrepancies in dates the third
and fourth respondents confirm the City’s version in all material respects.
[20] While the court has great sympathy, in particular for the first applicant, there is
simply no evidence to refute the City’s version in relation to the absence of
any right on the part of the applicants to either lease or own the property, or to
support the applicants’ claim that the procedure adopted (and explained) by
the City was in any way procedurally unfair. It is also well -established that a
court hearing a review is not at liberty to substitute a decision of an
administrative functionary simply because it does not like it. In the
circumstances the application must in any event fail.
[21] Although the City asks for costs in a limited respect, in the exercise of my
discretion I decline to make any such order in the particular circumstances of
this case. Counsel for the applicant appears pro bono; the City can hardly be
hugely out of pocket as a result of this application; and the third and fourth
respondents are represented by the Law Clinic of the University of Cape
Town.
[22] The following order is made:
1. The application is dismissed; and
2. Each party shall pay their own costs.
J I CLOETE
For applicants: Adv S Sibanda
Instructed by: Mbebe and Associates (Mr U Mbebe)
For first respondent: Adv P Gabriel
Instructed by: ZS Incorporated (Mr W Saban)
For third and fourth respondents: Adv T Mayosi
Instructed by: UCT Law Clinic (Mr Y Moodley)