THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2023-110621
In the matter between:
TLHALEFANG JEREMIA MACHELLE Applicant
and
ELIAS SOYPHE CHAUKE
First Respondent
APOSTOLIC FAITH MISSION OF PORTLAND
OREGON (SOUTH AFRICAN BRANCH) INC
Second Respondent
DIRECTOR GENERAL, DEPARTMENT OF
HOUSING, GAUTENG PROVINCE
Third Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Fourth Respondent
REGISTRAR OF DEEDS, JOHANNESBURG
Fifth Respondent
MASTER OF THE HIGH COURT,
JOHANNESBURG
Sixth Respondent
JUDGMENT
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 19 August 2025
2
DU PLESSIS J
Introduction
[1] The applicant, Mr Machele, occupied the house allocated to his aunt, in terms
of a lodger's permit. When his aunt , Ms Mohano, 1 passed away, the house was
transferred to the second respondent, the church. In this opposed motion, Mr Machele
seeks an order setting aside the transfer of the property and a declaration that his
lodger permit be converted into full ownership under the Conversion of Certain Rights
into Leasehold or Ownership Act 81 of 1988 2("Conversion Act").
[2] [2] The second respondent, the church, opposed this application, raising
various points in limine, including a lack of standing, prescription, prematurity under
the Conversion Act, and that the matter is not suitable for motion proceedings.
[3] On the merits, the respondents contend that the deceased, Ms Mohano,
executed a valid will in 1999 in which she bequeathed the property to the church, and
that the subsequent transfer in 2005 was lawfully effected pursuant to that will. Mr
Machele, however, claims that Ms Mohano died intestate and that his lodger’s permit
entitles him to claim ownership.
Background
[4] Mr Machele is Ms Mohano's nephew, who moved in with her in 1991 to help
her after the passing of her husband. Ms Mohano passed away on 18 April 2000, after
which Ms Molefe was appointed as the executor of her estate. In the court papers, the
respondents presented a document signed in May 1999, which purports to be a valid
will. It leaves the entire estate to the church.
[5] Ms Molefe passed away on 8 May 2001. The property in question was
registered in the name of the church on 15 February 2005, and the transfer document
indicates that it was done in terms of a valid will. The Deed of Transfer also indicates
1 There were various spellings of the surname. The surname as appearing on the death certificate is used.
2 Act 81 of 1988.
3
that she purchased the property from the City of Johannesburg, but that she passed
on before the transfer of the property.
[6] The property in question was allocated to Ms Mohano from the documents on
4 April 1991, in accordance with Regulation 8, Chapter 2 of the Regulation Governing
the Control and Supervision of an Urban Black Residential Area and Relevant Matters.
A document uploaded indicates that the applicant received a lodger’s permit granted
under Regulation 20 of Chapter 2 of the same Regulation on the same day. The
applicant relies on the lodger’s permit issued under Regulation 20 on that day. The
church disputes its authenticity.
[7] Various points in limine were raised. However, I do not need to make definite
findings on standing , prescription and whether the application was brought
prematurely, since the matter hinges on the question of whether Ms Mohano died
testate or intestate: a question of fact . If the will was validly executed, then she died
testate and the transfer of the property was lawfully done in terms of the last wishes
of Ms Mohano. If the document presented to the court is not the last will of Ms Mohano,
the sequence of events will be different.
[8] Whether the document relied upon by the respondents is the last will of Ms
Mohano raises a factual dispute that cannot be resolved on the affidavits and requires
oral evidence regarding its execution, authenticity, and the circumstances of its
creation. A simple denial by the applicant, accompanied by unparticularised
allegations of fraud, is insufficient. In practice, establishing fraud on motion is rarely
possible.
3
[9] Where a dispute of fact is foreseeable and goes to the core of the relief sought,
motion proceedings are unsuitable. The disputes of fact were both foreseeable and
significant. In those circumstances, it is not appropriate to allow the applicant to
proceed by motion.
4
proceed by motion.
4
3 Prinsloo NO v Goldex 15 (Pty) Ltd 2014 (5) SA 297 (SCA) at 304A–C; N v N [2022] ZAECGHC 9 para 31.
4 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162 and 1168.
4
[10] In the result, the application falls to be dismissed, 5 and costs must follow the
result.
Order
[11] The following order is made:
1. The application is dismissed, with costs.
_____________
WJ du Plessis
Judge of the High Court
Gauteng Division,
Johannesburg
Date of hearing:
4 August 2025
Date of judgment:
19 August 2025
For the applicant:
BB Ntsiname instructed by Shibambo
Attorneys
For the first and second respondents:
I Moselana instructed by Nkosi Nkosana
Inc
5 Transnet Ltd t/a Metrorail v Rail Commuters Action Group 2003 (6) SA 349 (A) at 368C–D and 368G–H.