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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2018- 21599
In the matter between:
MOTLALEPULA ATTALANA TLHAPI
Applicant
and
ABEL PATRIC BANGANE First Respondent
THE REGISTRAR OF DEEDS
Second Respondent
TEMBISA OFFICE OF HOUSING
Third Respondent
EKURHULENI DEPARTMENT OF HOUSING
Fourth Respondent
JUDGMENT
Marais, AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
17 January 2025
DATE SIGNATURE
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[1] In this opposed application the applicant, Ms MA Tlhapi, seek s an order
against the first respondent , Mr AP Bagane , for the setting aside of a transfer to him
of an immovable property, Erf 2 […], Portion 9/10, T […], T[…] (“the property ”).
[2] It is common cause that the property , prior to its transfer to the first
respondent , belonged to the Ekurhuleni Municipality , and that it was transferred to
the first respondent by the Registrar of Deeds in 2011.
[3] The applicant’s founding affidavit is cryptic and contains gaps in the sequence
of events , and reasoning.
[4] The applicant claim ed that the property belonged Mr Isaac Pule, who is
related to her, and allegedly being sickly, he wished to donate the property to her
during 2002, resulting in him signing written a “cession agreement ” in respect of the
property in her favour during 2003. It is not explained what the nature of Mr Pule’s
rights were, but it can safely be assumed that what was meant was that Mr Pule
allegedly had some form of permit issued by the local muni cipal council .
[5] The applicant’s case i s that prior to the alleged donation and cession
agreement, she was already in occupation since 1999, and that she remained in
undisturbed occupation until 2012, when the first respondent obtained an eviction
order against her in the Tembisa Magistrates’ Court . This order was set aside by this
court during 2014 on application by the applicant. The basis for the setting aside has
not been revealed. The eviction proceedings are still pending in the Magistrates’
Court.
[6] The picture that the applicant painted was that the eviction proceedings came
as a total surprise, and she seem ed to suggest that in the eviction proceedings the
first respondent did not rely on a title deed in respect of the property . This resulted in
her questioning the first respondent’s status as the registered owner of the property.
The applicant’s approach was that if the first respondent somehow became the registered owner, this happened in a manner entirely unknown to her.
[7] Regrettably, the applicant’s version was grossly incomplete and misleading.
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[8] The answering affidavit reveals that there was a dispute between the
applicant and the first respondent about the property , and that during 2009 the first
respondent approached the Gauteng Provincial Government in terms of the
Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 (“the Act”)
to adjudicate the dispute between himself and the applicant regarding the right to the
property in terms of section 2 of the Act . At the hearing of oral argument, it was
common cause that the dispute was submitted for adjudication in terms of the Act.
[9] It was also common cause that after hearing oral evidence the adjudicator
ruled that the first respondent was entitled to receive transfer of the property in his
name and that the applicant has no valid claim to the property.
[10] Not satisfied with the ruling, the applicant then appealed against the ruling in
terms of section 3 of the Act. An appeal panel of three adjudicators rejected the applicant’s appeal and made a final ruling on the first respondent’s entitlement to the property on 19 October 2010.
[11] In summary, the adjudicator and appeal panel found the following on the
evidence before them :
a. The property in question was initially acquired by Tiger Foods for Mr
Pule, who was also employed by Tiger Foods . At the time of the inquiry, the
permit issued by the local municipality was still in Mr Pule’s name, due to a
delay or failure to update the records.
b. Mr Pule and the First Respondent concluded an exchange agreement
during the 1990’s in terms of which Mr Pule transferred his rights in the
property to the first respondent , in exchange for the right to another property
(Stand 5757 Sekhotga Ext 9) to which the first respondent was entitled to. The
first respondent obtained the rights to the latter property though and exchange
agreement with a Mr J Ramotshela, who similarly obtained his rights through
the Tiger Foods employees’ housing initiative.
c. Mr Pule in his testimony confirmed the exchange agreement alleged by
the first respondent. He testified that he cannot read or write and was
unaware of the content of the document (the cession agreement) he was
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asked to sign by the applicant. There was also an allegation that the applicant
gave him alcohol before he was asked to sign the document, which was
irrelevant to the finding.
d. Subsequently, the first respondent was convicted of a criminal offence,
and during 1997 was sentenced to a term of imprisonment. He left a Mr
Mabiya in control of the property while he was in prison. When he was
released from prison during 2004, he found the applicant in occupation of the
property as a tenant.
e. The applicant ’s evidence before the adjudicator was that she never
held a permit from the local council to occupy the property, but was a tenant
there since 1999, paying R500.00 per month to Mr Mabiya. She testified that
Mr Pule ceded his rights to the property to her 2003 in terms of a written
cession .
f. It appeared that the records of the local municipality had not been
updated pursuant to the aforesaid exchange agreements as far as occupation
permits were concerned, but the accounts for municipal services presented to
the tribunal indicated that the account was in the first respondent’s name in respect of the subject property , and in Mr Pule’s name in respect of Stand
5757 Sekhotga Ext 9. This supported the existence of the exchange
agreement , and that it had been implemented by the first r espondent and Mr
Pule.
g. By the time Mr Pule allegedly ceded his rights in the property to the
applicant , he had no such rights to cede, and the cession failed to transfer
such non- existing rights.
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[12] Consequently, both adjudicator and the appeal tribunal held that the first
respondent was entitled to be awarded the property, while the applicant had no right
to the property whatsoever.
[13] Due to the conclusion that I have reached, it is not necessary to make a
finding about the correctness of this decision . Nevertheless, it would appear that the
1 The adjudicator in essence applied the maxim “nemo plus iuris ad alium transferre potest
quam ipse habet ”.
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inquiries were conducted in a fair and competent manner, and that the findings were
both supported by the facts and the law.
[14] The first respondent’s undisputed version is that the property was transferred
to him during 201 1 pursuant to the aforesaid process. The title deed of the property
confirms that the property was transferred to the first respondent by the Ekurhuleni
Municipality by virtue of the award to the first respondent on 19 October 2010, which
is the date of the appeal tribunal ’s award in favour of the first respondent.
[15] In a poorly constructed replying affidavit, devoid of any factual substance, the
applicant admitted that the aforesaid processes took place but stated that she
intended to take the tribunals on review but failed to do so.
[16] Section 3(2 ) of the Act provides that a person aggrieved by the decision of an
appeal tribunal, may within 30 days from the date he or she was informed of the
appeal tribunal’s decision, appeal to a competent court. In terms of section 3(5) this
appeal is to be dealt with as if it is an appeal from the Magistrates’ Court.
[17] The applicant did not lodge an appeal against the award in favour of the first
respondent.
[18] It is trite law that a court order or an administrative decision remains in force
until set aside.
2 The Ekur huleni Local Municipality clearly considered itself bound by
the decision of the adjudicator and appeal tribunal , with the result that it intended to
transfer the ownership of the property to the first respondent. On the other hand, the first respondent intended to take transfer. Consequently, there was clearly a real agreement (saaklike ooreenkoms) for the transfer of the property to the first respondent. In terms of our abstract system of transfer of property, what is required
for a valid transfer is a real agreement (i.e. an agreement with the intention to pass transfer) and transfer in the D eeds Office. Importantly, the real agreement should not
be equated with the underlying causa which creates per sonal rights
(verbintenisskeppende ooreenkoms - for instance a sale agreement) and defects in
2 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] 3 All SA1(SCA)
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the underlying agreement do not vitiate the transfer. Only if the real agreement is
invalid the ownership will not pass , despite registration of ownership.3
[19] No case has been made out by the applicant that the real agreement resulting
in the transfer of ownership to the first respondent was invalid , nor that there was
any other defect in the process of transfer in the deeds office. To the contrary, the
first respondent’s ownership of the property is, on the facts before the court, unassailable.
[20] The application must, therefore, fail and costs should follow the result. It will
be appropriate for costs to be on Scale “B” to the extent that costs on that scale had
been incurred by the first respondent.
[21] Consequently , the following order is made:
ORDER
1. The application is dismissed; and
2. The applicant is ordered to pay the costs of this application on Scale
“B”.
DAWID MARAIS
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of hearing:
28 November 2024
Date of judgment:
17 January 2025
For the Applicant: Advocate D V Nxumalo
3 Legator McKenna Inc. v Shea 2010 (1) SA 35 (35) at paragraph [22 ] and see Hlongwane v
Moshoaliba 2018 JDR 0689 (GJ)
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Instructed by Khoza and Matsepe Inc
For the Respondent: Advocate S Mchasa
Instructed by Nentswuni and Associates