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2024
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[2024] ZAGPJHC 861
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Mashamaite v Mohlala and Others (2022/059691) [2024] ZAGPJHC 861 (8 September 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED.
DATE:
8 September 2024
Case
No.
2022/059691
In
the matter between:
LAWRENCE
MASHAMAITE
Applicant
and
THOBEDI
COLLINS MOHLALA
First
Respondent
EKURHULENI
METROPOLITAN MUNICIPALITY
Second
Respondent
REGISTRAR
OF DEEDS, JOHANNESBURG
Third
Respondent
MEC
FOR HUMAN SETTLEMENTS (GAUTENG)
Fourth
Respondent
JUDGMENT
WILSON
J:
1
The applicant, Mr.
Mashamaite, seeks leave to appeal against my order of 14 August 2024,
in which I declared the first respondent,
Mr. Mohlala, to have
purchased the land at ERF 6[…] W[…] M[…], Zone
[…], T[…], Gauteng Province
("the property")
pursuant to a valid sale agreement.
2
In oral argument Mr.
Maphutha, who appeared for Mr. Mashamaite, reduced the grounds of
appeal to three distinct propositions, which
I shall address in turn.
3
The first proposition is
that I incorrectly rejected Mr. Mashamaite’s denial that he
entered into the sale agreement Mr. Mohlala
alleged. It was said that
I should not have accepted the documents alleged to constitute the
deed of alienation as authentic, because
Mr. Mashamaite had issued a
bare denial that he had signed them.
4
There is no prospect of
this proposition being sustained on appeal. The deed of alienation
was embodied in three affidavits and
an annexure commissioned by
three different police officers on three different occasions across a
number of months at the Tembisa
Police Station. To attack their
authenticity, Mr. Mashamaite plainly had to do more than insist that
he did not sign them.
5
Like a sheriff’s
return, the statement of a commissioner of oaths that a person has
signed a document and understands its
contents constitutes
prima
facie
proof of those facts. It will not lightly be impeached.
Evidence must be adduced that the commissioner’s statement is
false.
6
There is no such evidence
on the papers. In argument, Mr. Maphutha asked rhetorically what sort
of evidence that might be, but it
seems to me that evidence of any
fact inconsistent with the proposition that Mr. Mashamaite signed the
documents before a commissioner
– such as evidence that he was
somewhere other than Tembisa Police Station on the date the affidavit
was commissioned –
would have been enough. There was no
such evidence, and the bare denial issued in place of it was plainly
insufficient (see
Wightman t/a JW Construction v Headfour (Pty)
Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA), paragraph 13).
7
The second proposition is
that I had no evidence before me that Mr Mashamaite was in fact the
owner of the property at the time
that he sold it to Mr. Mohlala. It
follows, so Mr. Maphutha argued, that the sale could not have passed
ownership to Mr. Mohlala.
However, it was common cause on the papers
before me that Mr. Mashamaite was the owner of the property at the
relevant time.
8
There is presently no
title deed available for the property. The property was allocated to
Mr. Mashamaite by the fourth respondent,
the MEC. Accordingly, I gave
the MEC, together with the second respondent, the Municipality, and
the third respondent, the Registrar,
the opportunity to adduce
evidence that the property belonged to someone other than Mr.
Mashamaite at the time it was sold. They
all declined that
opportunity.
9
There is accordingly no
factual basis for the proposition that Mr. Mashamaite did not
own the property when he sold it, and
no prospect of a court of
appeal accepting that proposition.
10
The third proposition is
that the sale of the property was void for non-compliance with
section 10A of the National
Housing Act 107 of 1997
, which states
that it is a condition of every housing subsidy that a "dwelling
or serviced site” acquired under the
subsidy will not be
alienated within eight years of its acquisition, unless the property
has first been offered for sale back to
the relevant provincial
housing department that allocated the site or dwelling to the subsidy
beneficiary.
11
Neither party canvassed
the potential application of
section 10A
to the facts of this case on
the papers
a quo
. The issue became relevant because I asked
the parties to address the question of whether
section 10A
in fact
applied. Although the parties argued the case
a quo
on the
basis that the property had not been offered to the MEC under
section
10A
, there are no facts dealing with that issue on the papers. Nor
have the parties adduced any other facts which would bring this case
within the ambit of
section 10A.
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12
Moreover, the MEC, in
whose favour
section 10A
operates, has declined to adduce evidence or
present argument on the point.
13
In these circumstances,
the proposition that the sale was void for non-compliance with
section 10A
lacks any discernible factual substrate on the papers.
There is accordingly no prospect of it being accepted on appeal.
14
I ordered each party to
pay their own costs
a quo
. There is no reason to depart from
that approach in the application for leave to appeal.
15
The application for leave
to appeal is dismissed, with each party paying their own costs.
S
D J WILSON
Judge
of the High Court
This
judgment is handed down electronically by circulation to the parties
or their legal representatives by email, by uploading
it to the
electronic file of this matter on Caselines, and by publication of
the judgment to the South African Legal Information
Institute. The
date for hand-down is deemed to be 8 September 2024.
HEARD
ON:
6
September 2024
DECIDED
ON:
8
September 2024
For
the Applicant:
MR
Maphutha
(Heads
of argument drawn by MR Maphutha and K Kabinde)
Sithi
and Thabela Attorneys
For
the First Respondent:
MV
Sehunane
Instructed
by Sehunane Attorneys Inc