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South Africa: South Gauteng High Court, Johannesburg
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2024
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[2024] ZAGPJHC 798
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Mohlala v Masamaite and Others (059691/2021) [2024] ZAGPJHC 798 (8 August 2024)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 059691/2022
DATE
:
08-08-2024
1.
REPORTABLE: NO.
2.
OF INTEREST TO OTHER JUDGES: NO.
3.
REVISED.
8
August 2024
In
the matter between
THOBEDI
COLLINS MOHLALA
Applicant
and
LAWRENCE
MASHAMAITE AND THREE OTHERS
Respondents
JUDGMENT
WILSON,
J
:
On 4 July 2024, I
issued a
rule nisi
,
recorded in paragraph 20.2 of my judgment handed down on that date.
The judgment is reported as
Mohlala v
Mashamaite
(2022/059691) [2024] ZAGPJHC
607 (4 July 2024). The
rule nisi
invited the MEC for Human Settlements in Gauteng, the Ekhuruleni
Metropolitan Municipality and the Registrar of Deeds to show cause
today, Thursday 8 August 2024 at 10am or as soon as thereafter
counsel may be heard, why an order declaring that the applicant
purchased the property at erf 6[…], W[…] M[…]
zone 2 T[…], Gauteng province, in terms of a valid deed
of
alienation should not be granted.
The MEC for Human
Settlements, the municipality and the registrar of deeds have all
been served with a copy of my judgment. There
is on file an email
from the legal adviser to the MEC, acknowledging that the judgment
has been brought to the MEC's attention.
Neither the
registrar of deeds nor the municipality nor the MEC have shown any
cause why the
rule nisi
should not be made final. When the matter was called this morning, Mr
Kabinde appeared again for the first respondent. He started
out by
advancing a complaint that the
rule nisi
does not specifically invite the first respondent to show cause why
the order is contains should not be granted.
The reason for this
is that the
rule nisi
relates exclusively to matters that the first respondent argued fully
before me on 30 May 2024, and to which I had due regard in
preparing
my judgment of 4 July 2024.
The
rule
nisi
was issued in order to invite the
second, third and fourth respondents to disclose any facts that may
be peculiarly within their
knowledge that would have affected the
validity of the sale agreement.
The
rule
nisi
was fully motivated in my
judgment. Nobody could be in any reasonable doubt about why I issued
the
rule
that I did. Nor could there be any doubt that the first respondent
has been heard fully on the matters to which it relates. That
notwithstanding, Mr Kabinde continued to assert that the first
respondent had been excluded from these proceedings and should be
given a further opportunity to advance reasons why the
rule
should not be confirmed
I gave Mr Kabinde
an opportunity to address me again on behalf of the first respondent.
He raised only one point of any substance
and that was that paragraph
1 of my
rule nisi
does not track perfectly on to paragraph 1 of the applicant’s
notice of motion.
It is true of
course that paragraph 1 of the
rule
nisi
, and paragraph 1 of the notice of
motion, are not textually identical. They are however materially
identical. Paragraph 1 of the
notice of motion asked for a
declaration that the sale, which I have held valid, in fact took
place. Paragraph 1 of the
rule nisi
has the same effect, but it goes further and identifies the documents
that I considered amounted to a valid deed of alienation.
Whether or
not those documents constituted such a deed was the very focus of the
dispute between the parties when the matter was
argued on 30 May
2024. There was no conceivable prejudice to the first respondent in
my granting relief declaring that the documents
constitute a valid
deed. The first respondent was heard fully on that issue.
I am not bound to
follow the text of an applicant’s notice of motion slavishly. I
may grant relief in textually different
terms if it is appropriate to
do so. I may even grant such relief without hearing the parties
unless there is a material difference
between the relief claimed and
the relief granted that would prejudice either party. Here there is
no conceivable prejudice to
the manner in which I recast paragraph 1
of the applicant’s notice of motion in paragraph 1 of the
rule
nisi
. Paragraph 1 simply identifies the
valid deed that was before me and about which the parties argued
extensively on 30 May 2024.
Despite my having
pointed all of this out, Mr Kabinde continued to assert that his
client had been excluded from these proceedings.
I was unable to work
out why that submission was persisted with. Mr. Kabinde nonetheless
requested that the matter be postponed
in order for his client to
make further submissions in relation to the
rule
.
In circumstances
where the first respondent has already been afforded a full hearing
before this court on exactly the issues dealt
with in the
rule
,
that application has to be refused.
For the reasons I
have given, the
rule nisi
must be confirmed, I accordingly make the following order –
1
It is declared that annexures TCM 1, TCM 2
and TCM 3 to the applicant’s founding affidavit constitute a
valid deed of alienation
for the purposes of
section 2
(1) of the
Alienation of Land Act 68 of 1981
.
2
It is declared that the applicant, Thobedi
Collins Mohlala, is the owner of the property situated at ERF 6[…]
W[…]
M[…], Zone 2, T[…], Gauteng Province (“the
property”).
3
The second respondent, the Ekurhuleni
Municipality, is directed forthwith to amend its records to reflect
the applicant as the owner
of the property.
4
The third respondent, the Registrar of
Deeds, is directed forthwith to register the property in the
applicant’s name.
5 There is no order as to costs.
WILSON, J
JUDGE OF THE HIGH COURT
8 August 2024