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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025 - 048842
In the matter between:
In the matter between:
LILLIAN NONHLANHLA MOKOENA First Applicant
SARAH DANISILE MTHETWA Second Applicant
and
PHILLIP BANDA First Respondent
REGISTRAR OF DEEDS, JOHANNESBURG Second Respondent
DIRECTOR GENERAL - GAUTENG DEPARTMENT
OF HUMAN SETTLEMENTS Third Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
2
MEC: GAUTENG DEPARTMENT
OF HUMAN SETTLEMENTS Fourth Respondent
THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Fifth Respondent
JUDGMENT
Noko, J
Introduction [1] The applicant s instituted an urgent application for a relief crafted in two
parts. Part A is for an interim interdict restraining the first respondent from , inter
alia, transferring the property , to wit , Erf 9 […], O[…] W[…] Township, held under
Deed of Transfer T[ …] (“the property”) to any third party until determination of
Part B of the application. Part B is for various declarator y orders . The application
is proceeding on unopposed basis as the first respondent did not serve the notice
to oppose or attend Court to oppose the application. The parties
[2] The first applicant Lillian Nonhlanhla Mokoena an adult female resident at
1[…] D[…] K[…] Street, C […] J[…], Soweto , Johannesburg.
[3] The second applicant is Sarah Denisile Mthethwa, an adult female
resident at 2[ …] M[…] P[…], K[…] Extension 6, Johannesburg.
3
[4] The first respondent is Phillip Banda, an adult male resident at 9 […] O[…]
W[…], Soweto, Johannesburg.
[5] The second respondent is the Registrar of Deeds, Johannesburg, carrying
business at cnr V […] W[…] and R […] M[…] Street, Johannesburg.
[6] The third respondent is the Director General – Gauteng Department of
Human Settlement, Johannesburg. The third respondent is cited in his capacity as a functionary responsible for the administration and implementation of the Conversion of Certain Rights into Leasehold or Ownership Act
1 (“Conversion
Act”) and the Gauteng Housing Act. 2
[7] The f ourth respondent is the MEC: Gauteng Department of Human
Settlement cited in h er capacity as the executive responsible for the Human
Settlement Department.
[8] The third and fourth respondents are carrying government business for the
Gauteng Province at 1[ …] D[…] street, M[ …], Johannesburg.
[9] The fifth respondent is the City of Johannesburg Metropolitan Municipality,
a municipality established in terms of Local Government: Municipal Structures
Act
3 with its business address at 1 […] C[…] B[…], B[…], Johannesburg.
Background.
[10] The dispute between the parties relates to the property which was
previously allocated to the late John Banda (“Mr Banda”) and his wife Lilly
1 Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988.
2 Gauteng Housing Act 8 of 1998.
3 Local Government: Municipal Structures Act 117 of 1998.
4
Salimson Banda (“Ms L Banda”) , who were married in community of the property.
A residential permit was issued on 10 February 1968 by the Office of the
Superintendent: Non- European Affairs Department in terms of Section 5(a) of
Chapter 1 of the Johannesburg Location Regulations. The permit provides that Mr Ge orge Mokoena, (Mr Banda’s stepson) is a dependent and entitled to reside
on the property while he remain unmarried. Mr J Banda died on 11 July 1985
4,
Ms L Banda died on 24 November 2003 and Mr Mokoena died on 1 August 2011.
[11] The property is currently registered in the names of the first respondent
under Deed of Transfer T[ …] issued in terms of section 2 of Upgrading of Land
Tenure Act (“ULTRA”)
5.
Applicants’ version.
Urgency
[12] The applicants stated that they have heard recently that the first
respondent intends relocating to his father ’s property in Soweto and intends to
sell the property. First A pplicant was taken by surprise as the property was hers
together with the second applicant but she established after the inquiry with the
municipal offices that it is registered in the names of the first respondent . This
discovery triggered their keenness to immediately launch an urgent application.
[13] Having listened to the submissions made by the first applicant which are
not being challenged and noting that if the property is sold to a third party there
4 See annexure BLS 2.
5 Upgrading of Land Tenure Act 112 of 1991. This Act was passed to upgrade and convert certain
tenure rights (Leaseholds, Deeds of Grant and Quitrents) into full ownership. In contrast the
Conversion Act was intended to convert occupational rights into leasehold where as the ULTRA in
addition catered for transfer of tribal lands.
5
would be complications to reverse the title, I was persuaded that the matter
deserves of the audience of the urgent court and application was accordingly
granted.
Merits
[14] The first applicant stated that the second applicant and herself were
children of the late Mr Mokoena. During their investigation they approached the
office of the fifth respondent in Soweto and accessed records relating to the
property. The record revealed that Ms L Banda approached Soweto Council in
1987 and applied for the applicants to be added on the permit issued in respect
of the property. The entries to this effect are on the document titled “ House File ”
record sheet (entries between 28 July 1987 and 1 Dece mber 1990) and is
attached to the applicants’ founding affidavit marked BLS 13.
[15] The first applicant avers that after the death of both grandparents and her
father she took occupation of the property and stayed with Mr J Banda’s brother ,
Mr Saimon Banda (1[…]) (“Mr S Banda”) who had his own immovable property
elsewhere in Soweto . The copy of Mr S Banda shows that he was born in
Malawi.
[16] She subsequently relocated temporarily to Pretoria for work and during her
temporary absence in 2004 Mr S Banda surreptitiously approached Greater
Johannesburg Transitional Metropol itan Council Housing Transfer Bureau
(“Soweto Council ”) and applied for the property to be registered into the names of
his son, Phillip Banda, the first respondent . Mr S Banda submitted an affidavit to
the Council where he stated that he cedes all his rights and interest over the
property to the first respondent. As it is stated in the documents attached to the
founding affidavit it does not appear anywhere that Mr S Banda had any right over the property which was capable of cession to Mr Phillip Banda. To this end
the view is that the cession was incompetent.
6
[17] It is stated further in the affidavit that both Messrs Saim on and Phillip
Banda completed the claim forms with the Council to register the property into
Phillip Ba nda’s names. The claim form6 requires in para 6.2.2. that an
investigation “… into the possibility of some form of family title for the benefit of
the members of the immediate family residing on the property” should be
undertaken . No such investigation w as undertaken by the Council.
[18] The applicant s contend that during 1998 the Council conducted an
investigation in terms of section 2 of the Conversion Act after which a decision
was conveyed that the property is allocated the applicants . That notwithstanding,
the records indicated that the first respondent approached council in 2004 to
acquire the proper ty. The decision of the council , she argues, to allocate the
property to the first respondent is administrative decision as envisaged in the
Promotion of Administrative Just ice Act7 and is accordingly reviewable.
[19] In addition, it is the version of the applicants that the process in terms of
the Conversion Act is intended to ensure that the informal rights of the citizens
are converted into formal rights. The first respondent had never acquired the
informal rights and as such the decision taken to register the property in the name of the first respondent is not correct and unlawful.
[20] Legal principle and analysis .
Ownership of Land
6 See Annexure BLS 9 attached to the Applicant’s Founding Affidavit at CL 01- 45.
7 PAJ Act 3 of 2000.
7
[21] It is trite that the ownership of land by the Blacks8 has been precarious
until 19889 with the promulgation of the Conversion of Certain Rights into
Leasehold or Ownership Act 81 of 1988 ( Conversion Act ). In terms of this
legislation t he Commissioner was authorised to, inter alia , make determinations
in respect of permits, leaseholds and ownership rights of land by African people.
This is set out in section 210 of the Conversion Act which requires that an inquiry
be conducted to determine as to who should be allocated the property.
[22] The administration and the implementation of the Conversion Act was
assigned to Provinces with effect from 26 July 1996 in terms of Proclamation 41
of 1996, Government Gazette 17230 of 26 July 1996. On 28 August 1996, a
resolution was signed by the Premier of the Gauteng Provincial Government designating the Member of Executive Council: Housing and Land Affairs as a
competent authority for the administration of the Conversion Act .
[23] The Gauteng Provincial government promulgated the Gauteng Housing
Act 6 of 1998 which provided for the mechanism to adjudicate over housing
8 See Native Land Act 27 of 1913, Native Urban Areas Land Act 21 of 1023, Group Areas Act,
regulations governing the Control and Supervision of an Urban Black Residential Area and
Relevant Matters of 1968, Black Communities Act 4 of 1984.
9 Schabort J having held in Moremi v Moremi and Another 2001 SA 936 (W) at 939I that [T]he
conversion of rights brought about by the 1988 Act formed part of the legislative process aimed at
delivering society from the tenurial fetters of the years of racial segregation… ”. See also judicial
pronouncements in the Conversion Act … 9 Nzimande v Nzimande 2005 (1) SA 83 (W), Phasha v
Southern Metropolitan Local Council [2000] 1 ALL SA 451 (W), Kuzwayo v Estate Late Masilela
[2010] ZASCA 167 (1 December 2010) , unreported judgment in Ndaba v Thonga and Others
(18674/20199 [2020], (23 November 2020) (Gauteng Local Division).
10 Section 2 provides that: “(1) Any secretary shall conduct an inquiry in the prescribed manner in
respect of affected sites within development areas situated within his province, in order to
determine who shall be declared to have been granted a right of leasehold with regard to such
sites”
8
disputes. The Gauteng Province further promulgated the Gauteng Housing
Amendment Act of 2000 with regulations relating to the adjudication procedure.
[24] Section 2(1) of the U pgrading of L and Tenure Right Act (“ULTRA”)11 which
was promulgated after the Conversion Act intended to provide security of Tenure
enjoins the Department of Human Settlement to conduct an enquiry in order “…
to determine who shall be declared to have been granted a right of leasehold with regards to such sites”. The records presented by the applicants do not set out
that an inquiry was conducted before the Deed of Transfer was issued in favour
of the first respondent.
[25] As it noted above the provisions of the Conversion Act are crafted in pre-
emptory terms and non- compliance thereof may amount to nullity for any conduct
inconsistent therewith. During the discussion with the applicants, they were
agreeable to the proposition that the matter may rather be referred to the
Department of Human Settlement for consideration in accordance with the
provisions of the Conversion Act. The aforesaid is in sync with the provisions of
section 2 of the ULTRA which is also crafted in pre- emptory terms which may
nullify the decision if there was non- compliance with the Act.
Analysis .
[26] The background set out by the applicants seem to suggest that there was
an investigation which was conducted in terms of the Conversion Act. This
version is not supported by t he facts presented and the documentation which the
applicants obtained from the offices of the fifth respondent. I f an investigation
was conducted the documents would have included the advertisements as
envisaged in terms of the Conversion Act inviting interested parties to attend the
said inquiry. There would have been a title deed issued after the inquiry and not
11 Act 112 of 1991.
9
one only issued in 2005 subsequent to the property having been claimed by the
first respondent as supported by his father.
[27] The documents obtained from the offices of the Counc il confirms that the
property was allocated to the applicants ’ grandparents and later to their
grandmother after the death of the grandfather. There is no indication that the
property was ever allocated to the applicants ’ father. There is however a
confusion as it appears that the grandmother requested that the property be allocated to the applicants in 1987 as her children whereas in fact , they are
grandchildren and not children. At this time Mr Mokoena was still alive. St rangely
the property was allocated by the Soweto City Council to t he grandmother in
1990. On the other hand, seven years earlier in 1983, the permit was issued only
in the names of the applicants. Notwithstanding the aforegoing confusion the
property was never allocated to the first respondent or his father and as such they held no informal rights which could have entitled them to benefit from the Conversion Act or be upgraded as contemplated in Upgrading of Land Tenure Act.
[28] The crafting of the application is chaotic. Amongst others , the applicants
seek for an order declaring unconstitutional the customary law rules, Black
Administration Act, section 1(4)(b) of the Intestate Succession Act , and without
this Court making a comprehensive pronouncement, the papers are not backed
up by any proper factual presentation or sound legal basis. Ordinarily the parties do make submissions of what are the legal issues for the court to determine but ultimately it is for the court based on the facts presented to make a determination of the issues to be adjudicated upon.
12 This would have to be done without
12 This principle was aptly explained in Fischer and Another v Ramahlele and Others [2014]
ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA in which the following was stated: There may
also be instances where the court may mero motu raise a question of law that emerges fully from
the evidence and is necessary for the decision of the case. That is subject to the proviso that no
10
making out a case for the parties and disregarding authorities which clearly
states that decision should be within the province of the case presented by the
parties.13 During the engagement with the first applicant it became apparent that
the gripe is how the matter was handled by the Gauteng D epartment of Human
Settlement and the appropriate course to take is to refer the dispute back to that office for the necessary inquiry. [29] Ordinarily the failure by the Department of Human Settlement to conduct
an inquiry would lead to the pronouncement that the decision taken by the
department and the issuing of the title deed should be set aside and re- instating
the residential permit granted to the applicants . However , in this instance the first
respondent would need to be granted an opportunity to address the court, if he so wishes,
14 before the finalisation of the matter.
[30] The facts presented by the applicants clearly shows that they have a clear
rights alternatively prima facie rights emanating from the residential permit which
could have been transformed into a secured tenure in terms of Conversion Act alternatively ULTRA. The allegations that the first respondent threatened to sell
the property and t he fact that Deed of Transfer has been issued remain a harm
visiting the applicants without any appropriate redress being available. Denial of property should be in accordance with the Constitution as it also enhances the
prejudice will be caused to any party by its being decided. Beyond that it is for the parties to
identify the dispute and for the court to determine that dispute and that dispute alone.
13 See C onstitutional Court in Molusi v Voges NO 2016 (3) SA 370 (CC) at 381H -382B that the
court should adjudicate and make a decision upon the disputes as are presented before it. See
also SCA in The Road Accident Fund and Others v Hlatswayo and Others ZASCA [2025] 17 at
para 42.
14 See Western Cape Education Department and Another v George 1998 (3) SA 77 SCA at 84E
where the curt held '… it is desirable that any judgment of this Court be the product of thorough
consideration of, inter alia, forensically tested argument from both sides on questions that are
necessary for the decision.' This judgment is referred to on the basis of parity of reasoning.
11
right to dignity. The balance of convenience favour the granting of the order and
the first respondent would not suffer any prejudice. To this end it can be
concluded that the requirements for interim interdict have been m et.
Conclusion .
[31] In the result I find that a proper case has been made for an interim relief,
pending the investigation by the Gauteng Department of Human Settlement, for
an order restraining the second respondent to transfer the property to any party and the Gauteng Department of Human Settlement is directed to conduct an
investigation as envisaged in t erms of the Conversion Act alternatively ULTRA
and file a report with the court and the first respondent. The final report would provide a cue whether the property was properly allocated to the first respondent and if not, the registration of the property to the first respondent may have to be set aside.
Costs
[32] In view of the change in the order sought and the first respondent having
not been given an opportunity to address the court costs should be reserved until
the final determination of the lis .
Order
[33] In the premises I make this order:
1. Interim interdict is issued restraining The Registrar of Deeds
(Johannesburg) from registering transfer of Erf 9[ …] O[…] W[…] T[…], held by
Deed of Transfer Number T[ …] to any party pending investigation an envisaged
in section 2 of the Conversion Act alternatively section 2 of the ULTRA.
12
2. The first respondent is interdicted from selling and / or passing transfer of
Erf 9 […] O[…] W[…] T[…] to any party pending the investigation envisaged in
1above.
3. The Director -General: Department of Housing, Gauteng Province or the
relevant functionary is directed to institute an inquiry as contemplated in terms of the Conversion of Certain Rights to Leasehold Act 81 of 1988 alternatively
Upgrading of Land Tenure Rights Act 112 of 1991.
4. Costs are reserved.
M V NOKO
Judge of the High Court,
Gauteng Division, Johannesburg.
This judgement was prepared and authored by Noko J and is handed down electronically by circulation to the p arties / their legal representatives by email
and by uploading it to the electronic file of this matter on CaseLines. The date of
the judgment is deemed to be 23 April 2025.
Date s:
Hearing: 14 April 2025.
Judgment: 23 April 2025.
Appearances
For the Applicant s: Lillian Nonhlanhla Mokoena and
Sarah Danisile Mthethwa.
In person
For the Respondent s: No Appearance.