THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no: 2021/8960











In the matter between:

MAMOKETI ELDAH MASHIYANE

First Applicant
ISABEL LOUISA MALOKA

Second Applicant
IVAN MOLOI

Third Applicant
and

LINDIWE MARIA KEKANA NO

First Respondent
THE DIRECTOR GENERAL OF THE DEPARTMENT
OF HOUSING GAUTENG PROVINCE

Second Respondent
THE MEC OF HUMAN SETTLEMENTS
DEPARTMENT GAUTENG PROVINCE

Third Respondent
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes



Date: 28 March 2025

2
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY

Fourth Respondent
THE REGISTRAR OF DEEDS JOHANNESBURG Fifth Respondent



JUDGMENT


DU PLESSIS J

Introduction
[1] T his is an application for the cancellation of a title deed and a declaratory order
that the property in question should devolve in terms of the Conversion of Certain
Rights into Leasehold or Ownership Act1 ("the Conversion Act") read with section 1(1)
of the Intestate Succession Act 2 so that it remains part of the estate of the late
Shardrack Moloi and Jacobeth Moloi. The first respondent filed an affidavit but did not
file heads of argument, and there was no appearance for the respondent on the day
of the hearing.

[2] The first to third applicants are siblings. They seek to invoke the Intestate
Succession Act to ensure that the property, a family home, is preserved for the benefit
of all Moloi family members. The first applicant deposed an affidavit on behalf of the
other two siblings. No confirmatory affidavits were filed for the other two applicants.

[3] Jacobeth and Shardrack Moloi were the applicants' parents . They had eleven
children, of whom only five are still alive. The first respondent's mother was one of
their children. Jacobeth passed away on 17 November 1985, and Shardrack on 4 April
1988. Both died intestate, and their estate was never reported to the Master of the
High Court, Johannesburg.


1 81 of 1988.
2 81 of 1987.

2
[4] The Moloi parents were allocated the property on 16 March 1983 in terms of
Regulation 8 of Chapter 2 of the Regulations Governing the Control and Supervision
of an Urban Bantu Residential Area and Relevant Matters 3 ("the regulations"). They
occupied it pursuant to a Certificate of Occupation (regulation 8). This certificate had
not yet been converted into a full title deed at the time of their passing.

[5] Upon marriage, the first applicant left the family home. The second and third
applicants still reside there. The other siblings have not involved themselves in the
dispute.

[6] The applicants state that they discovered only in 2020 that the property had
been registered in the name of Irma Moloi (the mother of the first respondent), one of
their siblings, who passed away on 6 January 2018. The applicants state that " [t]he
property should remain as a family house and not belong to an individual."

[7] The applicants contend that the property should not have been registered in
Irma's name, alleging that the transfer occurred without proper authority or the consent
of all family members. Although their founding papers suggest the transfer was
irregular or unauthorised, they do not bring a review application. Instead, they seek
interdictory relief in imprecise framed terms. The precise nature and legal basis of the
relief sought remain unclear.

[8] The applicants contend that they were never informed of any adjudication
process relating to the property transfer, nor were they notified when the title was
changed. They further submit that upon the death of their parents intestate, the
occupation rights held under the Certificate of Occupation formed part of their
deceased estate and ought to have devolved equally upon all heirs.

[9] The first respondent opposes the application and contends that the applicants
have misconceived the nature of their claim. She clarifies that she does not intend to

have misconceived the nature of their claim. She clarifies that she does not intend to
evict anyone residing on the property and merely seeks to protect her rights as the

3 Government Notice R1036 of 14 June 1968.

3
registered owner. She emphasises that she has no intention of selling the property,
which has been her home since birth.

[10] She states that the first applicant seeks to evict her and has initiated this
litigation in retaliation for tensions within the household. According to the first
respondent, the property was lawfully transferred into Irma Moloi's name in 1998 in
terms of the Conversion of Certain Rights into Leasehold or Ownership Act, following
a family process facilitated by Pule Moloi, a brother of Jacobeth Moloi. She attaches
correspondence indicating that the family was informed of the proces s, including a
letter dated 1995.

[11] She raises several points in limine, including:
a. That the application should have been brought as a review of the
administrative decision to transfer ownership under the Conversion Act,
which the applicants have failed to do.
b. That the first applicant lacks locus standi, as she is not listed on the
Certificate of Occupation, no confirmatory affidavits are provided by her
co-applicants, and she does not reside on the property.
c. That the matter involves material disputes of fact not capable of
resolution on the papers.
d. That there was non- compliance with Uniform Rule 41A regarding
mediation.

[12] She maintains that the registration into Irma's name was not fraudulent and
challenges the factual basis of the applicants' case.

The law
[13] The applicants seek to challenge the registration of the property in the name of
Irma Moloi and to prevent the first respondent from dealing with the property. While
they do not expressly seek to review the administrative decision that led to the
registration, the substance of their claim amounts to such a challenge. They allege
that the transfer was effected without proper process or the consent of family members
and that it was fraudulent or erroneous.

4

[14] This Court is familiar with these types of cases, where in a growing number of
disputes, family members seek to contest past transfers of property effected in terms
of the Conversion Act . While the statutory scheme was enacted to facilitate the
regularisation of tenure following the end of racially discriminatory systems of
occupation, it prescribes a clear process, including an administrative inquiry and
determination under section 2. Where such a process has led to the registration of title
in one person's name, the correct remedy, in my view, would be for an aggrieved party
is to challenge that administrative act by way of review. This is well -established in
authority, including Kuzwayo v Masilela
4 where it was clearly stated that

"Section 6 is not an empowering provision, however. It provides only that the Registrar
of Deeds may not cancel any deed of transfer except upon an order of Court. Kuzwayo
argued that an application could not be brought under s 6: there must be some other
cause of action."

[15] And later5

"The only administrative decision that could and should have been made was that of
the Director -General or his delegate, after the inquiry mandated by s 2 of the
Conversion Act. […] It would undoubtedly have been best for the Estate, had it been
made aware of a decision of the Director-General, and of the declaration and transfer
that would follow, to take the Director- General on review. […] The Conversion Act
requires an inquiry to be conducted by the Director -General pursuant to s 2 before a
declaration is made that a site permit be converted to full ownership, and before
transfer is effected to the occupier. The high Court erred in directing transfer by the
Gauteng Provincial Government to the Estate in the absence of such an inquiry. In my
view, although the Estate is probably entitled to acquire ownership, an inquiry should
be held.


[16] The Court may not grant declaratory or interdictory relief that has the effect of

[16] The Court may not grant declaratory or interdictory relief that has the effect of
usurping or bypassing the Director -General's administrative powers under the

4 2010 (1) SA 277 (SCA) para 25.
5 At paras 28 and 29.

5
Conversion Act. If the applicants were dissatisfied with how ownership was determined
or transferred, their remedy was a review, not this application.

[17] Similarly, in Moloi v Moloi ,
6 the Court declined to interfere , absent a proper
review.

[18] T he applicants seek to prevent the registered owner from exercising her
ownership rights but fail to engage with the administrative decision that led to
registration. The notice of motion does not seek the review or setting aside of any
administrative decision. In effect, the applicants ask the Court to undo the
consequences of an administrative process without invoking the correct legal remedy.
That is impermissible.

[19] The legal framework governing the transfer of rights under the Conversion Act
anticipates that disputes about entitlement to ownership will arise and provides a
mechanism, by way of an administrative inquiry followed, where necessary, by judicial
review, for resolving them. Where parties believe that such a transfer was effected
irregularly or to the exclusion of legitimate beneficiaries, they are required to approach
the matter through those established channels. What is before this Court is not such
a challenge. Instead, it is an application that seeks to undo the effect of a registered
title without engaging in the process that gave rise to it. Whatever the broader context
or personal history may be, the relief sought cannot be granted outside the bounds of
the statutory scheme.

[20] In the absence of a proper review, and in light of the relief being ineloquently
framed and legally uncertain, the application cannot succeed. The point in limine, that
the applicants have pursued the incorrect legal remedy, is upheld.




6 Moloi v Moloi, Smith v Mokgedi [2012] ZAGPJHC 275 para 38.

6
Conclusion

[21] Disputes of this nature often involve competing claims to family homes, where
there are long shared and overlapping histories of occupation. The disputes
surrounding who has what rights to the family home are increasingly common in our
courts. The facts are often complex and intense emotions are frequently involved.

[22] Still, the law requires clarity in the form and framing of the relief sought.
Applicants who wish to challenge how property was transferred in terms of the
Conversion Act must do so through review proceedings. Courts are not unsympathetic
to the hardship faced by families navigating the bureaucratic legacy of apartheid- era
land tenure systems. However, a court cannot grant relief where the wrong legal
mechanism is employed.

Order
[23] The following order is made:
1. The application is dismissed, which costs are to be taxed on scale
B.


____________
WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg


Date of hearing;:

12 February 2025
Date of judgment:

28 March 2025
For the applicant:

BB Ntsimane instructed by Shibambo
Attoneys

For the respondent:

L Mtshiyo instructed by Cuzen Randeree
Dyasi Incorporated (who withdrew of
attorneys of record on 22/01/2025).