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 DIVISION, PRETORIA)
31542 /2023
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE SIGNATURE
03 June 2025 N V KHUMALO.
In the matter between:
MUZA CONNEX FIDERLISI BERNADO FIRST APPLICANT
MUZA ANNA NOMVULA SECOND APPLICANT
and
NANCY M MOKOENA FIRST RESPONDENT
CITY OF JOHANNESBURG SECOND RESPONDENT
METROPOLITAN MUNICIPALITY
REGISTRAR OF DEEDS PRETORIA THIRD RESPONDENT
THE DIRECTOR GENERAL OF THE FOUR TH RESPONDENT
DEPARTMENT OF HOUSING
‘This judgment was handed down electronically by circulation to the parties’
representatives by email. T he date and time of hand -down is deemed to be 03 June
2025
________________________________________________ ______________ _____
JUDGMENT
N V KHUMALO J
Introduction
[1] The Applicant s seek an order against the Respondents in the following terms:
1.1 That the sale and subsequent transfer of the property known as Erf no
7[...] Ivory Park Extension 8 Township in the name of the 1st Respondent
under Title Deed Number: T54097/2019 is cancelled and set aside;
1.2 An order directing the 3rd Respondent (the Re gistrar of Deeds ,
Pretoria ) to cancel and set aside the Title Deed which holds the property
known as Erf no 7[...] Ivory Park Extension 8 Township in the name of the 1st
Respondent.
1.3. The abovementioned property known as Erf no 7[...] Ivory Park
Extension 8 Township reverts back to its original owner, City of Johannesburg
Metropolitan Municipality (“the 2nd Respondent) , in order for them to facilitate
that the 4th Respondent (Department of Human Settlement), Gauteng, hold s
an investigation and a hearing in terms of s 24A of the Gauteng Housing Act 6
of 1998 in order to determine who is rightfully entitled to the ownership of th e
property known as Erf no 7[...] Ivory Park Extension 8 Township;
1.4 It is ordered that a caveat be issued to prevent the alienation of this
property until the matter is finalized;
1.5 That all subsequent transfer of the immovable property known as Erf
no 7[...] Ivory Park Extension 8 Township be declared invalid.
1.6 That the Applicant be paid the sum of R350 000.00 as a fair and
reasonable pay for the expenses incurred in improving the property;
1.7 And costs in the event of opposition.
[2] The 1st Applicant, Mr CFD Muza, and the 2nd Applicant , Ms A N Muza, are
husband and wife married in community of property on 26 November 2016 and the
occupants of erf no 7[...] Ivory Park Extension 8 (the property) , the ownership of
which is in dispute.
[3] Ms N M Mokoena, the 1st Respondent is the registered owner of the property
which she holds under Title Deed number: T54097/2019 , transferred to her subject
to a pre-emptive right in terms of s10A of the Housing Act 107 of 1997 .
[4] The 2nd Respondent is the City of Johannesburg Metropolitan Municipality
Region A , cited as the Municipality as defined in the Municipality and Structures Act
117 of 1998 read together with the Municipal and Structure Amendment Act 33 of
2000 and Notice 6766/200.
[5] The 3rd Respondent is the Registrar of Deeds, Pretoria an entity appointed
and regulated by the Deeds Registration Act 47 0f 1947 , responsible for the
registration of deeds and maintaining information on the real estates and mortgages .
The 4th Respondent is the Director General of the Department of Human Settlement
and an officer responsible for housing and urban development matters in terms of s
24A of the Gauteng Housing Act 6 of 1998 (GHA) .
[6] The 1st Applicant ha s been in occupation of the property since 1997 till to date
and alleges that he was at all relevant times due to receive transfer of the property
until the unknown occurred and in consequence thereof, the 1st Respondent received
transfer of the property instead, which he says was in error. hence the
abovementioned reliefs sought.
Historical background to the title obtained
[7] The property was acquired by the 1st Responden t’s deceased husband in
December 1990 in terms of the Black Communities Development Act, 1984 (Act
No.4 of 1984) , by signing an agreement with the Transvaal Provincial Department as
the lessor . In March 1997 he and the 1st Respondent signed a new lease agreement
with the Department of Housing at the Local Ivory Park Municipality Offices which
falls under the City of Johannesburg in terms of the Gauteng Housing Act 107 of
1997. They then held the property subject to leasehol d from the Ivory Park
Metropolitan Substructure.
[8] The properties were intended to provide sites for homeless people with the
appropriate service s plus services charges , and for incorporation into the area of
jurisdiction of a local authority whereupon the Lessee shall have a pre -emptive right
to purchase the pr operty should it be available for sale . The properties were also not
to be sublet , assign, ceded or any of the rights or obligations delegate d without prior
consent of the lessor . The lessor was also not to erect more than one structure
without prior written consent of the lessor . Site competent person" means a
competent person as defined in section 1 of the principal Act; ( BCDA)
[9] The Appli cant alleges that :
[9.1] by the time the transfer of the property to the 1st Respondent took
place on 29 August 2019 , the 1st Respondent was no longer qualifying for the
subsidised housing (therefore not homeless) as she had acquired a property
in the interim through a mortgage bond originated facility which was
transferred to her name in 2012 .
[9.2] The 1st Respondent and her deceased husband sold their subsidised
property to him on 11 June 1997 for an amount of R3 500.00, which he paid in
two instal ments of R1 500 ,00. The last instalment of R500 was paid on
August 1997 whereafter he continued to occupy the property without any
issues . He has been paying the levies ever since.
[9.3] It was their agreement that they would approach the offices of the 2nd
Respondent and change all documents therein to reflect the Applican t’s
name . He was not aware of any rules or law that pertains to the sale of the
land. As a result of the sale, he effec ted improvements that amounts to a sum
of R350 000.00 on the property . The property was just a stand with a shack at
the time of the verbal sale agreement, with no concrete buildings at the time.
He then built a house and outside structures wherein he resi des with his wife
and 3 children .
[10] The 1st Respondent is now reneging on the sale agreement and insist s that
his family vacate the premises . She has proceeded with a n eviction action she
instituted in the Magistrate Court which is pending.
[11] On 4 December 2009 a dispute arose in a meeting at the 2nd Respondent
offices that was for the purposes of changing ownership. In the light of the dispute
another meeting was scheduled on 14 January 2010 with no positive results ,
notwithstanding that an official of the 3rd Respondent , (later herein after referred to
as Ms Makhubela) attended to the matter and had promised to furni sh the 1st
Respondent with an alternative property seeing that he made such significant
improvements to the property .
[12] Furthermore , the Applicant claims that since the belated transfer of the
property to the 1st Respondent was only in 2019 , therefore in error , as at the time
she no longer qualified for the subsidised housing , the transfer was in violation of the
housing department rules that says ‘a recipient of a state provided property must be
“A FIRST -TIME HOME OWNER.’
[13] The Applicant therefore alleges that a s a result , the transfer must be
cancelled , with the property revert ing to the 3rd Respondent . However in the
meantime, the files with the content of their particulars had disappeared , therefore
the 4th Respondent mus t then hold an investigation and a hearing in terms of s 24 A
of the Gauteng Housing Act 6 of 1998 (GHA) to determine the rightful owner .
[14] Alternatively , if it is the sale to him that is found to be invalid, he holds a lien
over the property as security for repayment of the expenditure incurred. He therefore
must be reimbursed all the money he spent on the improvements which totals R350
000.
[15] The 1st Applicant attaches amongst other things two notices from the City of
Johannesburg Region A, one dated 4 December 2009, calling upon the occupier of
the property to come and register for a title deed and the other one dated 14 January
2010 asking the occup ier to bring water and lights statements with them. 1st
Applicant has also attached a windeed search that indicates that the Maokeng
property was registered on 13 August 2012 in the name of the 1st Respondent.
Whilst the registration of the Ivory Park pro perty took place on 29 August 2019. He
attached p roof of payment to the Municipality which shows a sporadic payment of
amounts of R100 .
Respondents answer
[16] The 1st Respondent disputes the allegations made by the Applicants that she
or she and the deceased did not qualify for the housing subsidy when they acquired
the property since her deceased husband applied for the subsidized housing in
1991. At the time they were staying with the deceased’s parents and not owning any
property. They were then allocated the site Erf 7[...] in Ivory Park. The deceased had
to sign a lease agreeme nt with the Transvaal Provincial Administration on 28
November 1990 and a further month to month lease agreement with the Ivory Park
Metropolitan Substructure as the lessor on 15 March 1997 . Both leases attached .
[17] She denie s that they sold the proper ty to the 1st Applicant. According to her
they built a structure on the site that consisted of 2 bedrooms, a kitchen, a dining
room and an outside bathroom, using board and zinc roofing . They lived comfortably
on the property with their four children for a period of + - 6 years but later had to
make a choice to move away from the area for the sake of their small children. At the
time crime was on the rise as it was not yet a fully built up area. The relocation was
intended to be temporal with an intention to later built a proper structure and for their
son to take occupation . They were able to buy a house in the Township Maokeng
(referred to as the Maokeng property) through a mortgage bond. She and her
husband took transfer of the Maokeng property in 2010 when registration took place.
[18] They let the 1st Applicant stay in the property without a sale or lease
agreement concluded as he was destitute , squatting on a vacant land with no place
to stay . He was a lso a friend of the deceased and was to look after the property as
they could not leave it unattended. Consequently , the Applicant was to remain there
until they were able to build so that their son could take occupation of the property or
until her husband’s cousin could move to Gauteng coming down from Limpopo who
was the one supposed to occupy and look after the property until their son take s
over occupation. The cousin, however, reneged. The deceased is the one who
concluded the agreement with the 1st Applicant to look after the property. S he is
therefore not sure of the terms agreed upon , however it was never their intention to
sell. As far as she knows the 1st Applicant was o n his own when he moved in .
[19] After some time the 1st Applicant had moved in , they noticed that he had
demolished the structures they had built and started building his own structures in
the property without their consent . She and the deceased tried to seek an audience
with him to initiate talks about it to no avai l, the 1st Applicant refused to meet or to
talk to them. As they could not get his attention, a notice to vacate was then served
on him. The 1st Applicant resisted and undertook to continue the construction.
[20] She confirms that in 2010 she and the deceased received an invitation to
attend the local Municipal Office from the Housing Department but was not told what
it was all about. They found the Applicants already there. A Ms Caroline Makhubela ,
an official fr om the Housing Department , after talking to the Applicants alone , came
and t old them that the property now belongs to the Applicant s without providing any
clarity why it would be so. They did not accept that as they never sold the property.
After the meeting they never got a feed back .
[21] She denies that sh e ever signed anything for any sale or transfer of the
property to the 1st Applicant and did not pursue the matter of the alleged sale any
further. She disputes that she is not eligible to own the property, and argue that even
if she was not , the Applicant could not be a receiver of a subsidy as he is a foreign
national from Mal awi.
[22] She points out that, on the passing of the deceased she as the executor of the
estate appointed her son to assist her with the administration of the estates
whereupon the property was transferred to her. On a further attempt to evict the
Appli cants from the property, the 1st Applicant told her son that he paid an amount to
the Housing Department for the purchase of the property alleging now to be the
lawful owner of the property. The said information was not put to her and the
deceased when the y were called at the Municipality Offices. And she was hearing it
for the first time. It, however, did not make sense as she and her husband were the
holders of the title and do not understand what the 1st Applicant was paying for . They
also could not prove such allegations.
[23] She then attended the offices of the 2nd Respondent to investigate how it
could have been possibl e for the Applicants to obtain ownership of the property
without their involvement. The housing Department informed them that they sent
several notices to the property and there was no response. The outcome of an
investigation into the alleged sale conducted by the Head of Department at the
request of her son did not find to have been any resale or re allocation of the
property except to her and the deceased.
[24] The Applicants were notified of the 2nd Respondent’s findings but continue to
refuse to vacate the property despite the numerous requests and lawful demands.
She was directed to attend head office and uplift her title deed in order to proceed
with the evic tions of the Applicants and all those who o ccupy the property through or
under the 1st Applicant. As a result , in 2021 she launched the eviction proceedings at
the magistrate court which 1st Applicant is oppos ing. The matter was set down for
oral evidence on 21 June 2022 and postponed sine die.
[25] The 1st Respondent also indicate d that the utilities are owed on the property to
the Municipality in v arying amounts , inter alia, an amount of R57 282.41, owed as of
22 January 2016, R63 545.41 owed as of 16 March 2016 and an amount of R 111
279.70 owed as of 22 March 2019. Point 2 (b) of t he title deed indicate that she and
the deceased could not sell the property within 8 years of transfer without offering it
to the Provincial Housing Department and obtaining their consent . The 1st Applicant
cannot produce proof of any payments made in relation to the sale of the property as
no sale of the property informal or formal has ever taken place.
[26] In relation to the co nstruction , the 1st Respondent indicated t hat t he 1st
Applicant has proceeded to built whilst fully aware that he was not authorised to do
so under a firm believe that this would confer ownership on him as he now relies on
the building and reconstruction as grounds for setting aside and cancellation of her
Title Deed. He did not obtain their consent to demolish the structures that were
already there and to build his ones.
Applicant’s reply
[27] In reply , the 1st Applicant disputed the averments in the 1st Respondent’s
affidavit . He denied that there were rooms built on the property except for a one
room shack which was also on a very bad state and unoccupiable.
[28] He disagreed that th e 1st Applicant and the deceased ever occupied the
property , pointing out that the date of th e sale of the Maokeng property is 2003 and
he started staying at the property from 1997 . From 1997 it is not clear where the 1st
Respondent and her husband were staying. They had stopped qualifying for a home
subsidy as soon as they qualified to purchase a n immovable property. Therefore , at
all relevant times until the property was transferred to the 1st Respondent in 20 19 it
remained the property of the 2nd Respondent and a state subsidy property as it was
leased to the 1st Respondent . It remained so until July 2019 when it was transferred
to the 1st Respondent .
[29] He points out that the 1st Respondent only started evicting him once she got
the title deed and had done nothing since 1997 . In the eviction action the 1st
Respondent brought in the magistrate court the 1st Respondent alleges there in that
the property was leased to him. He denies that the sta nd was leased to him but sold.
[30] On the invitations from the Municipality that he allegedly did not forward to
the Mokoenas , he disputes that the 1st Respondent was not aware of the meeting.
He alleges that he delivered the invitation to attend the meeting personally to the 1st
Respondent . At the meeting the 1st Respondent and her husband agreed that they
sold the property to him but could not abide by the agreement because their children
were grown up then. The operations manager advised them that for fairness they
must look for another stand to build on as he has done. The operations manager
then asked him for his ID as well as birth certificates of his children and advise d
them that a new stand was going to be allocated to 1st Respondent and deceased
and a new file opened for them .
[31] He alleges that the 1st Respondent only started to evict him recently after her
husband passed away. Whilst her son has been harassing him telling him that he
was prepared to reimburse him the purchase price he paid and laments that he lost
the recording of the discussion . When a ll this time the allegations were on the basis
that he paid the deceased and not the 2nd Respondent.
[32] He argues that the notice to va cate was only served in 2019 and 1st
Respondent saw the house personally for the first time after two decades. There
were no investigations made or concluded as alleged by 1st Respondent.
[33] He reiterated that the 1st Respondent and her husband sold the stand to him
in 1997 before any title was issued and it was still an informal settlement. The 1st
Respondent and the deceased delayed him when they had to approach the
municipality to change the stand to his name . They started to pull back from the
agreement a fter he had effected the improvements , that is why he approached the
2nd Respondent.
[34] The 2nd Respondent has nevertheless continued to issue the title deed to the
1st Respondent without proper procedure for the dispute resolution and or an enquiry
in terms of s 24A of the G HA and the necessary report or outcome thereof. The title
must revert to 2nd Respondent to enabl e the tribunal to exercise its powers without a
hindrance It will not be able to exercise its powers whilst the title remains in the
hands of the 1st Respondent . The status quo of the title deed in the name of the 2nd
Respondent is relevant to the enquiry. The 3rd Respondent does not have powers to
cancel the title deed in the event that it surfaces that the property indeed does not
belong to the 1st Respondent. property dispute started since 2010, but the
[35] He su bmits that the 1st Respondent received the title deed in error both in fact
and law. At the time the stand was allocated to him per the 2nd Respondent and also
per giving effect to their initial agreement of sale of the stand . Legally the 1st
Respondent no longer qualified for the housing subsidy. The title deed came
erroneously in the name of the 1st Respondent in 2019 disregarding the sale that
came about more than 2 decades ago.
[36] The 1st Respondent only issued a letter of demand attempting to evict him in
2019 after she received a Title Deed when he has stayed in the property since 1997.
Clause 2 (b) became applicable only after the property has erroneously been
transferred to the 1st Respondent in 2019 . He therefore seeks to correct the error by
cancel lation of the title deed.
[37] At the time of the sale he was not aware of requirements that he had to
comply with and that the 1st Respondent was not in possession of a title deed yet. It
was only in 2009 that he then discussed the matter with his family friends to arrange
a date and t ime to go to the local offices of the 2nd Respondent to effect their
agreement and there was no problem at all. That they were family friends is
indicated by them allowing him to stay for 25 years at the time when his family friend
was alive . He is certain that if he was still alive today all the legal action would not
have commenced and everything was going to be resolved in a good way.
[38] The rooms were bu ilt before the area had title deeds . All occupants were
informed by the area council tha t since the streets are proper ly made by the
municipality and the sewer pipes clearly installed , they need to be cautious of the
boundaries when building at least to be two meters away from the EFR demarcation
and not build on top of the municipal services. Whenever the title deeds come, they
can submit the plans with no guarantee that plans will be approved. It is also
possible that certain structures will have to be adjusted for approval. He alleges that
the 1st Respondent only became aware of the developments recently, if she had an
issue he could have stopped him long time ago.
[39] The provisions of the Housing Act became applicable once the property was
transferred otherwise it remained the property of the 2nd Respondent then as an
owner entitled to allocate and reallocate to anyone out of its own discretion. The
invitation letter was clear regarding the subject of the invitation. The sole purpose of
the issue was stand 7[...], the property. To date the co vers of the offic e file still bears
his name , but the contents of the file have disappeared. That started when the 1st
Respondent’s s son became involved and was colluding with the HOD.
[40] On the meeting with Makhubela he alleges that Ma khubel a enquired on the
property and the 1st Respondent agreed to have sold the property to him and needed
it back , now that the children have grown. It was then that Ma khubel a told the 1st
Respondent and the d eceased that they will be allocated a new stand as he has
already built on the property and it was now allocated to him. Makhubela ’s duty was
to resolve stand disputes. She opened a new file for the 1st Respondent and the
deceased for the allocation of a new stand.
[41] The 1st Applicant a rgues that the basis on which the property was allocated to
him was due to the sale agreement he concluded with the 1st Respondent as well as
the improvement s he had effected . An investigation how the transfer took place will
shed some signific ant light as transfer to the 1st Respondent was in error.
[42] There are numerous dispute s of facts in this matter . Notwithstanding their
likelihood foreseeable at the time of launching this application , as the parties were
also party to an action in the Magistrate Court that involv es the same property , and
seeking a final relief together with ancillary relief , the Applicants nevertheless
proceeded on paper , without resort to oral evidence . The Plascon Evans1 Rule is
therefore applicable in deciding upon the disputes of fact inherent in the matter . In
essence, the court will grant a final order if the facts stated by the Respondent,
together with the admitted facts in the Applicant’s affidavit, justify such an order. The
general rule of resolving the disputes of facts in motion proceedings emanat ing from
the decision of Van Wyk J (with whom De Villiers JP and Rosenow J concurred)
in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd2 where it is
further stated that :
“. . . . Where it is clear that facts, though not formally admitted,
cannot be denied, they must be regarded as admitted. ”
[43] There are exceptions applicable to th e rule, that is when allegations or denials
of the Respondent are so far-fetched or clearly untenable that the Court is justified in
rejecting them merely on paper (see Botha AJA’s remarks in Associated South
African Bakeries Pty Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere ).3 In
certain instances the denial by Respondent of a fact alleged by the applicant may not
be such as to raise a real, genuine or bona fide dispute of fact (see in this
regard Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd ,4 Da Mata v Otto,
NO,5 ).
[44] Inversely , since the 1st Respondent failed to avail herself of her r ight to apply
for the viva voce evidence of the Applicant , if the court is to be satisfied as to the
inherent credibility of the Applicant’s factual averment, it may proceed based on the
correctness thereof and include this fact among those upon which it will determine
whether the Applicant is entitled to the final relief he seeks .6
Issues arising are :
1 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (
2 1957 (4) SA 234 (C) at p 235 G,
3 1982 (3) SA 893 (A) at p 924A).” .
4 1949 (3) SA 1155 (T) at pp 1163 -5;
5 1972 (3) SA 585 (A) at p 882 D - H
6 Rikhoto v East Rand Administration Board , 1983 (4) SA 278 (W), at p 283E -H).
[45] The Applicant alleges that the transfer was erroneous and should be
cancelled on the basis that (1) the property was already sold to him at the time of
transfer (2) and the 1st Respondent did not qualify to take transfer of the p roperty in
her name as she already at the date of transfer owned an immovable property. The
question to be determined in that regard is therefore ;
[45.1] whether or not there was a sale of the property de facto and de iure as
alleged by the 1st Applicant that entitled him a right to own the subsidised
property or to be considered for ownership thereof . It is therefore to be
determined if 1st Applicant had proven factually the c onclusion of such an
agreement and its legality and his eligibility to bu y the property.
[45.2] Whether ignorance of the law exonerate s the ignorant from the
application thereof. (It excuses no one from compliance )
[46] With regard to the second issue the question is whether the 1st Respondent
was at the time of registration of transfer of the property in 2019 eligible to take
transfer of the property even though she already held ownership of the Maokeng
property. Whether or not the 2nd Respondent was authorised to pass transfer of the
property to the 1st Respondent at the time of transfer,
Whether or not there was a sale of the property as alleged by the 1st Applicant?[
[47] Prior to determining the facts, it is apropos to determine the legal framework
applicable with regard to saleability of the property at the time alleged . The starting
point in determining th at issue would be to look at the terms and conditions under
which the property or site was held by the deceased and the 1st Respondent , the
alleged seller , at the time the alleged sale supposedly took place.
The Leasehold and Lease agre ement
[48] The s alient terms and conditions under which the property was obtained by
the deceased in 1990 are pronounced in the preamble of the Leasehold
agreement he entered into with the Transvaal Provincial D epartment , which,
inter alia read as follows :
“Whereas the Transvaal Provincial Department as the Lessee who was
in the process of acquiring certain land, being portion 1 (a portion of
portion 4) of the farm Kaalfontein 12 IR, and generally known as
“Kaalfontein Squatter Camp” (the property) through expropriation ,
And whereas the Lessor intends transferring the property to th e local
authority in order to allow it to be incorporated within the jurisdiction of
such local authority thus enabling the Lessee s of the sites on the
property to acquire the s ites under Leasehold or Freehold Ownership.
And where as the Lessor has agreed to let the sites on the property to
certain Lessees in the interim pending the acquisition thereof by such
Lessee s as set out before;
[49] The lease agreement thereafter provides for, inter alia, the following selected
pertinent conditions , cited verbatim hereunder:
[49.1] paragraph 1 th ereof reads:
“The lessor hereby lets to the lessee who hereby hire site
number 7[...] situated in the property (the premises) “
[49.2] paragraph 2 reads:
“Notwithstan ding the date of signature of this agreement, the
lease shall commence or shall be deemed to have commenced
on 28 November 1990.
[49.3] paragraph 7 reads:
“The lessee shall not have a right to cede or assign this lease or
sublet the premises or any building erected on the premises or
any portion thereof, or to cede or assign his rights to this
agreement, not to part with the occupational possession thereof
to any person whatsoever without the prior consent of the
lessor. ’
[49.4] Paragraph 8 reads:
The lessee undertakes not to erect more than 1 structure on the
premises or allow any other party to e rect such additional
structure .
[49.5] Paragraph 9 reads :
The parties place on record that the property is intended for
incorporat ion into the area of jurisdiction of a local authority.
However , the lessee’s right of occupation shall not otherwise be
affected by such incorporation and he shall have a pre -emptive
right to purchase the premises should it become available .
[49.6] Paragraph 10 reads:
It is noted that the intention of the parties is to provide sites for
homeless persons with the appropriate services and service
charges.
[50] The deceased ’s signed a declaration for Resettlement of Squatters/Backyard
Dwellers to Ivory Park on 24 September 1990 stating the following :
“I hereby declare that I am neither a Lessee of a Tembi sa City
Council dwelling nor an owner of property within the jurisdiction
of the City or Council of Tembisa.
I consent to being resettled to Ivory Park as I am homeless and
consent that should it be discovered that I do in fact lease or
own a home of my own , the stand allocated to me at Ivory Park
should revert back to Transvaal Provincial Administration and
should then be allocated to a homeless person. (my emphasis ”)
[51] In March 1997 , (the year the 1st Applicant alleges that the property was sold to
him), following the incorporation of the leased sites into the area of jurisdiction of a
local authority , the deceased and the 1st Respondent concluded a lease agreement
with the Ivory Park local Municipality that had acquired the property in the meantime.
Some of the terms and condition s of the old lease were re tained with the inclusion ,
inter alia, of the following pertinent clauses :
5.1 the sites are solely for residential purposes
5.2 Lessee entitled to erect a prefabricated building on site
5.3 Before any building is erected on the site , the lessee shall
submit a building plan in respect thereof to the Lessor for approval
6. The Lessee shall not sublet the site of building erect ed thereon
or any portion thereof, cede or delegate any of this right or obligation in
terms of this agreement of lease to any other person or body .
7. The Lessee shall not without the prior written consent erect more
than on e structure on the site .
10. This agreement shall terminate and shall cease to be of force
and effect from the date upon which the Lessee enters into a deed of
sale in respect of the site .
10.3 The Lessor may terminate this lease if :
10.3.1 The Lessee at the time of entering into the Lease made a
false statement which was material into entering into this
agreement of lease or
10.3.3 The Lessee br eaches any other term of this agreement
10.3.4. The lessee vacates the site .
10.4 The site shall be deemed vacated if the lessee or his immediate
family has not occupied the site for a period of 30 days without advising
the Lessor in writing of the absence .
[52] In the affidavit attached to the Lease Agreement the deceased confirms that
he is a South African citizen possessing a South African ID. He does not own
or lease any other residential property nor derive any benefit from the housing
subsidy scheme. The documents were attached and referred to by the 1st
Respondent in her response to the Application.
Analysis
[53] The 1st Respondent has stated in her affidavit that at the time of application
and conclusion of the leasehold agreement, she and the deceased owned no
property and were together with their children staying with the deceased’s parents at
Defateng in Tembisa . Only the deceased was employed. There is no cogent and
factual disputation to those allegations which are confirmed in a declarati on and an
affidavit filed by the deceased as part of the documents when signing the lease
agreements .
[54] The property was therefore obtained with the terms and conditions of the
leasehold fully applicable, particularly those in relation to the ce ssion, assigning of
the rights therein, subletting, vacating or temporarily absenting oneself from the
leased property or parting with the occupational possession of the stand to any
person whatsoever without the prior consent of the lessor.
[55] The 1st Respondent confirms that the family’s vacation of the premises did
occur in 1997 , albeit temporarily with the intention to retain the property for their son
and rebuild a proper structure. The 1st Applicant was requested to stay in and look
after the pr operty at least for a period of 6 years until their son was old enough to
take over ownership of the property. This happened when they could not secure the
deceased’s cousin who was supposed to look after the property. They agreed with
the 1st Applicant , in accordance with their intention, to temporarily vacate the
premises . It is not in dispute that the 1st Applicant moved in to the site or property in
June 1997.
[56] The temporal absenteeism or permanent vacation was in terms of the lease
prohibited without the consent of the Lessor upon which the lease could be
terminated. The agreement further stat ed that the property shall be deemed vacated
if the Lessee or his immedia te family has not occupied the site for a period of 30
days without advising the Lessor in writing of their absence. The result of which was
that the Lessor could cancel the lease following the proper protocol as per terms of
the lease agreement . The reason for the temporal move is alleged by the 1st
Respondent to have been due to the crime that was on the rise at the settlement with
no proper structures and their children were still small for that environment. That fact
is not challenged by the 1st Applicant.
[57] The 1st Applicant on the other hand disputes that his possession of the
property and the move by the Mokoena s was temporal . He allege s that he bought
the property from the deceased and the 1st Respondent for R3 500.00 which he paid
in full by way of three (3) equal instalments of R1000 and the R500 . Howeve r, there
is no written agreement or proof of payment. He insists to have negotiated the terms
thereof with the deceased. Furthermore, that he was at the time unaware of the law
applica ble on sale of land but they had agreed , as parties to the sale agreement that
they will approach the 2nd Respondent for change of ownership . It is because of this
sale that there is a dispute on ownership .
[58] Notwithstanding the point of view that the matter is to be decided on the facts
as alleged by the Respondent unless the allegations are far -fetched and inherently
improbable . The 1st Applicant disregards the fact that the 1st Responde nt and the
deceased were not able to deal with the property in any way they wish except as per
the terms of the Lease hold that was applicable at the time, unless they obtained
consent to deviate from the terms thereof .
[59] It was nevertheless, inherentl y impossible for the deceased and 1st
Respondent to sell the property at the time and guarantee ownership , when they did
not own it , a fact that the Applicant himself points out that it was a n informal
settlement and they did not have a title deed. They could not derive any gain from it.
The property was still held u nder a subsidised leasehold meant for th e poor and the
homeless , bestowing only a pre -emptive right to a subsidised Freehold ownership as
and when it becomes available for transfer . As a result ab sent a real right , property
ownership could not be sold.7
[60] Moreover as it has been pointed out by the 1st Respondent, that besides the
fact that they lacked ownership at the time, the 1st Applicant was a foreigner
therefore not eligible for consideration for either the Leasehold or Freehold
ownership under the applicabl e subsidy scheme . As it has happened with the
deceased , he, as the intended Lessee , had to confirm that he is a South African
citizen in possessi on of a South African ID and f urther that he does not own or lease
any other residential property nor derive any benefit from the housing subsidy
scheme.
[61] In addition, the 1st Applicant ’s claim is based on an alleged oral agreement for
the sale of the land, which is an immovable property . Verbal agreements in respect
of sales of immovable property are invalid therefore not binding in law.8
[62] The 1st Applicant has also allege d that at the meeting that took place at 2nd
Respondent’s offices in 2009 or January 20 10, one Makhubela an official at 2nd
Respondent , told the 1st Respondent and the deceased that due to the sale, they
will be furnished with another site, and that the property will now be registered in the
name of the Applicant s. This also could not be possible , for the fact that the 1st
7Wessels J in Glutthaar vs Hussain 1912 TPD 322
8 The Alienation of Land Act No. 65 of 1981 (“ the Act”) in s 2 provides that “no alienation of land
shall….. be of any force or effect unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting on their written authority.”
Applicant was not a citizen of South Africa . It would have been interesting to see the
documents that 1st Applicant alleges to have submitted to the 2nd Respondent , which
he convenient ly claims to have disappeared from his file . He could not prove the
refuted sale either . It is also noted that he only got married to the 2nd Applicant in
2016. Nevertheless , the property could not be sold or alienated for gain.
[63] Therefore , the allegations by th e 1st Applicant that the meeting was an
enquiry in terms of s 24A of the GHA (even though the notice d id not say so and
there is no report or proof of outcome ) whereupon a decision was made that the
property was then to be transferred to him and that the subsequent transfer not to
him but to the 1st Respondent was err oneous is ill advised . The conduct of such
enquiries is regulated by the GHA .
Lack of awareness of the Law
[64]] The 1st Applicant further alleges that he did not know or was not aware of the
law applicable in relation to the sale of the property . Ignorance of the law is an
excuse if it can be proven to be both genuine and material. In that case, the excuse
acceptable . No individual is blanketly exonerated from compliance with the law due
to ignorance. Hence in S v Waglines (Pty) Ltd and Another [4] Didcott J (as he then
was) stated that:
‘Ignorance of or a mistake about the law is indeed an excuse
cognisable by our courts. The excuse does not always amount,
however, to an acceptable one. That the ignorance or mistake must
first be both genuine and material goes without saying. Less obviousl y,
but in principle no less necessarily, it has to be reasonable in addition
whenever culpa enters the reckoning, whenever that serves as mens
rea. It cuts no ice otherwise, since the unlawful act which it explains is
then committed through culpa. The question therefore posed by such a
case is whether the person concerned should reasonably have realised
that what he was doing or about to do might well be unlawful. And the
answer depends largely on the care he took or did not take to acquaint
himself with the true legal position. The duty to investigate this is clear,
to speak generally at all events and not of any area where the law’s
reach is suspected so little that the possibility of trouble and the
consequent need for caution would never occur to a prudent
mind. Strong demands are placed, by comparison, on all those
engaged in trades, occupations or activities which are legally regulated
and known by them to be. They are expected to learn the rules and
obliged to make the effort.
Sometimes, to be sure, the duty to investigate will be performed
satisfactorily when advice on the lawfulness or otherwise of the course
envisaged is obtained from a source ostensibly qualified to furnish
such, and to think it lawful will be reasonable once the assurance has
thus been given that it is .’ [Emphasis mine].
[65] The 1st Applicant’s ignorance of the law does not exonerate him from the
effect of non-compliance or to put it in another way , validate what is rendered invalid
because of his non-compliance . To seek that the 2nd Respondent recognise the non-
compliant question able sale and give effect thereto is ill considered. No one is
allowed to improve his own condition or to benefit by his own wrong (Nemo ex suo
delicto meliorem suam conditionem facere potest ).9 In Coetzee v Steenkamp10 the
court opined as follows :
[16] I am satisfied that in this matter the plaintiff sought from this Court
to accord him its imprimatur to benefit from his own wrongful act, which
the Supreme Court of Appeal has enjoined a person cannot do, and
which precedent binds this Court. In Brooks v Minister of Safety and
Security 2009(2) SA 94 (SCA) at 100E –F (para 16) in a different
context but on the same principle Ponnan JA remarked :
“[16] It is true that in matters of human behaviour we are often told not
to judge by results, but in law, when considering whether a contention
is well founded, the absurdity of the results to which it will give rise is
9 Roman Law. Ulpian in D50.17. 134.1
10 (579/2009) [2010] ZANCHC 25 (18 June 2010)
not an immaterial consideration. That a person in the position of Brooks
could by his own intentional wro ngful act create in favour of his
dependents a cause of action that would not otherwise exist is nothing
short of preposterous; indeed in my view that would be a dangerous
proposition. After all it is a trite principle of our law, that a person
should not be allowed to benefit from his/her own wrongful act. ”
(My emphasis).
[66] The attempt by the 1st Applicant of a deranged show of ignorance is devoid of
all credence . The fact that he alleges the existence of a void sale agreement of the
land to justify his erection of buildings on it and to garner sympathy cannot assist
him. Particular ly regard being had to the fact th at he was aware that 1st Respondent
obtained the property through a Leasehold or Freehold housing subsidy scheme for
the homeless for which he didn’t qualify for at the time as a foreigner . Likewise, to
have interacted with the 2nd Respondent’s office on numerous occasions . He
seem ed in any way to have been aware that ownership was not yet passed to the
deceased and 1st Respondent , therefore they held no title deed to the property yet .
Also of the restrictions applicable on alienation of the property and the erection of
buildings or structures on the propert y.
[67] As to the purpose of him being in the proper ty he said his friends allowed him
to stay in the property for 25 years , to show that they were good friends , confirming
1st Respondent allegation that he was let in the property as the deceased’s friend
who was destitute , therefore with no likelihood of a sale agreeme nt. He even laments
that if his friend was still around he would still be staying in the property
[69] Absent a valid sale agreement, t he 1st Respondent and the deceased
remained the legitimate holders of the property in terms of the lease agreement .
They were qualified at the time they obtained the subsidised leasehold and
continued to hold a pre -emptive right to ownership of the property from 1991 which
was not disturbed in 2010 by their acqui sition of the Maokeng propert y. They still
validly remained entitled to the ownership of the property and therefore registration
of the property or transfer of ownership effected by the 2nd Respondent not
erroneous.
Reimbursement
[70] The Applicant seeks also an order that he be paid the sum of R350 000.00 as
a fair and reasonable pay for the expenses he incurred in improving the property
without any proof of how th e amount is constituted. He built more than 1 structure on
the property without submitting any building plans and illegally sublet the said
structures wi thout permission from the lessee and or the 2nd Respondent contrary to
the terms and conditions of the Leasehold. His reply of a mere shrug that the
building plans were to be submitted there after and structures not required to be
demolished nullifies his claim for the unsubstantiated reimbursement amount. He
fails to make a case for that order , that is , reimbursement and the quantum thereof .
This is notwithstanding the provisions of s 28 (1) of the Alienation of Land Act11 as he
has also failed to prove the applicability thereof since he could not prove the
existence of a sale agreement .
[69] The Applicant has not made a case for an order for the relie fs sought against
the Respondents. As a result t he Application w ill have to fail .
[70] Under the circumstances the following order is made:
11 28. Consequences of deeds of alienation which are void or are terminated
(1) Subject to the provisions of subsection (2), any person who has performed partially or in full in
terms of an alienation of land which is of no force or effect in terms of section 2(1), or a contract
which has been declared void in terms of the provisions of section 24(1)(c), or has been
cancelled under this Act, is entitled to recover from the other party that which he has performed
under the alienation or contract, and —
(a) the alienee may in addition recover from the alienator —
(i) interest at the prescribed rate on any payment that he made in terms of the deed of
alienation or contract from the date of the payment to the date of recovery;
(ii) a reasonable compensation for —
(aa) necessary expenditure he has incurred, with or without the authority of the
owner or alienator of the land, in regard to the preservation of the land or
any improvement thereon; or
(bb) any improvement which enhances the market value of the land and was
effected by him on the land with the express or implied consent of the said
owner or alienator; and
(b) the alienator may in addition recover from the alienee —
(i) a reasonable compensation for the occupation, use or enjoyment the alienee may
have had of the land;
(ii) compensation for any damage caused intentionally or negligently to the land by
the alienee or any person for the actions of whom the alienee may be liable.
(2) Any alienation which does not comply with the provisions of section 2(1) shall in all respects be
valid ab initio if the alienee had performed in full in terms of the deed of alienation or contract and the
land in question has been transferred to t he alienee.
1. The Application is dismissed with costs.
2. The Applicant to pay the Respondent’s costs on a party and party
Scale B.
____ ____________________
N V KHUMALO J
Judge of the High Court
Gauteng Division, Pretoria
On behalf of the Applicant : Mr Mchasa
Instructed by: NGOETJANA ATTORNEYS
walter@ngoetjana.co.za
On behalf of the Respondents : Mr S Singede
Instructed by: RAJEN V NAIDOO ATTORNEYS
Info@rajenvnaidooattorneys.co.za