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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2025-129318
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 23 August 2025
In the matter between:
INNOCENTIA ZABALA Applicant
[Identity Number: 7[…]]
and
THE REGISTRAR OF DEEDS,
JOHANNESBURG
First Respondent
THE MINISTER OF RURAL
DEVELOPMENT AND LAND REFORM
Second Respondent
MONDE ZIKI
Third Respondent
PALESA DORAH ZIKI Fourth Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] The applicant, Ms Zabala, is the owner of a house in Mofolo North (“Mofolo”) .
The titledeed indicate s that she has a “leasehold”, a remnant of the property rights
black people were allowed by the apartheid government . The house was bought in
2007.
[2] Ms Zabala has recently sold the house to the third and fourth respondents
(“the buyers”), who have since taken occupation of the house despite the house not
being registered in their name. Ms Zabala herself has bought a new hom e (“the
Chelsea Village Property”) , and has moved in there, although the house is not yet
registered in her name. The buyers are paying her occupational rent in the Chelsea
property.
[3] The reason for the property not being transferred is that the transfer of the
dependent Chelsea Village Property into the name of Ms Zabala is dependent on the
transfer of the Mofolo property into the names of the buyers, which transfer is
frustrated because the first respondent is of the opinion that the Minis ter must
consent thereto.
[4] Whether such consent is in fact required lies at the heart of this urgent
application.
[5] Ms Zabala says that the matter is urgent because, if the house is not
transferred to the buyers soon, they may rescind from the contract, and the sale will
fall through. Similarly, the seller of the Chelsea Village Property (the house she
bought) will also rescind from that contract . If the sale falls through, Ms Zabala and
her young child, who recently got a placement in a school close to the Chelsea
Village Property, will have to move again at significan t cost. Ms Zabala disagrees
that the Minister’s signature is needed for the transfer.
[6] Ms Zabala engaged with the Minister’s office in various forms, including going
to the Department itself, on 12 June 2025, 9 July 2025, 14 July 2025 and 28 July
2025, trying to resolve the matter. Most times she was told that there is a backlog
and it can take up to three months for her application to reach the top of the pile. Ms
Zabala is clearly frustrated by this delay.
Urgency
[7] I have considered the papers and applied my mind to the question of urgency
and the merits . While the matter may not rise to the level of extreme urgency often
encountered in this court, I am satisfied that it is urgent enough to warrant immediate
intervention. The applicant will not obtain substantial redress in due course if the
matter is deferred, as there is a risk that the interconnected property sales will
collapse, triggering a cascading “ domino effect ” that will prejudice not only the
applicant but also third parties who are contractually and financially linked to the
transactions.
Merits
[8] This matter deals with a house, held in terms of a leasehold as defined by the
apartheid Regulations for the Administration and Control of Townships and Black
Areas.
1 As stated in the introduction, the apartheid government created different
forms of property rights that black people could have in the urban areas . In the early
1990s, and in anticipation of the end of apartheid, the apartheid government
promulgated the Upgrading of Land Tenure Rights Act 2 (ULTRA) to upgrade certain
land tenure rights, such as the leasehold in this case, to ownership.
[9] This is done in terms of section 2(1). Unti 2024, section 2(1) stated:
“(1) Any land tenure right mentioned in Schedule 1 and which was granted in
respect of—
(a) any erf or any other piece of land in a formalized township for which a township
register was already opened at the commencement of this Act, shall at such
commencement be converted into ownership;
(b) any erf or any other piece of land in a formalized township for which a township
register is opened after the commencement of this Act, shall at the opening of the
township register be converted into ownership;
township register be converted into ownership;
1 1962 Proc R293 GG 373 of 16 November 1962.
2 112 of 1991.
(c) any piece of land which is surveyed under a provision of any law and does not
form part of a township, shall at the commencement of this Act be converted into
ownership,
and as from such conversion the ownership of such erf or piece of land shall vest
exclusively in the person who, according to the register of land rights in which that
land tenure right was registered in terms of a provision of any law, was the holder of
that land tenure right immediately before the conversion.”
[10] This section was declared unconstitutional in Rahube v Rahube,
3 which
declared the provision unconstitutional retrospectively to 27 April 1994. The relevant
paragraphs in the order read as follows:
“2 (a) Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991
is declared constitutionally invalid insofar as it automatically converted holders
of any deed of grant or any right of leasehold as defined in regulation 1 of
Chapter 1 of the Regulations for the Administration and Control of Townships
in Black Areas, 1962 Proc R293 GG 373 of 16 November 1962 (Proclamation
R293) into holders rights of ownership in violation of women’s rights in terms
of section 9(1) of the Constitution.
(b) The order in (a) above is made retrospective to 27 April 1994.
(c) In terms of section 172(1)(b) of the Constitution, the order in paragraph
2(a) and (b) shall not invalidate the transfer of ownership of any property
which title was upgraded in terms of section 2(1) of the Upgrading of Land
Tenure Rights Act 112 of 1991 through: finalised sales to third parties acting
in good faith; inheritance by third parties in terms of finalised estates; and the
upgrade to ownership of a land tenure right prior to the date of this order by a
woman acting in good faith.
(d) The order in 2(a) above is suspended for a period of 18 months to
allow Parliament the opportunity to introduce a constitutionally permissible
procedure for the determination of rights of ownership and occupation of land
procedure for the determination of rights of ownership and occupation of land
to cure the constitutional invalidity of the provisions of section 2(1) of
the Upgrading of Land Tenure Rights Act 112 of 1991.”
3 [2018] ZACC 42.
[11] In other words, all the upgrading of rights that happened in terms of section
2(1) of ULTRA reverted to what they were before the upgrade – in this case, the
leasehold.4 This order of invalidity was suspended for 18 months from 30 October
2018 (it being 30 May 2020) to allow P arliament to rectify the issue. Parliament did
so by amending section 2(1), which came into operation on 1 June 2024.
[12] The section was amended, adding the following requirement:
“2. Application for conversion of land tenure rights mentioned in Schedule
1.—(1) Any person who is the registered holder of a land tenure right
mentioned in Schedule 1 according to the register of land rights in which that
land tenure right was registered in terms of the provisions of any law, or could
have been a holder of that land tenure right had it not been for laws or
practices that unfairly discriminated against such person, may apply to the
Minister, in the prescribed manner, for the conversion of such land tenure
right into ownership in respect of— […]”
[13] The first respondent relies on this amendment to state th at the Minister’s
approval is required before they can complete the transfer process. Ms Zabala
disagrees, stating that consent is not applicable in this instance, as she ac quired the
property through a commercial transaction. When she acquired the property, the
township was not declared a formalised township as contemplated in section 15 of
ULTRA.
5 This only happened in December 2019. If it was proclaimed a formalised
township at the time that she purchased the house, she would have obtained full
title. Still, she says that her right of leasehold was converted to ownership ex lege in
terms of ULTRA in 2019, a proposition that is supported by the Chief Registrar in
Circular 5 of 2024.6 Moreover, the fact that she bought the property and that she is a
4 There were three categories of people excluded from the retrospective working of the declaration of
invalidity, namely an upgrade through a finalised sale to third parties acting in good faith, inheritance
by third parties in terms of the finalised estate and the upgrade to ownership of Land Tenure Rights
prior to the date of the order, by a woman acting in good faith.
5 Act 112 of 1991.
6 Paragraph 3.1 states:
“3.1.1 Section 2(1) of ULTRA (prior amendment) reads as follows:
2 Conversion of land tenure rights mentioned in Schedule 1 (1) Any land tenure right mentioned in
Schedule 1 and which was granted in respect of-
woman for whom the amendment was intended to provide protection excludes her
from the consent requirement.
[14] The Registrar of Deeds opposed the application, stating that the amended
section 2(1) clearly requires the Minister’s approval before the leasehold can be
upgraded to ownership, and no such approval was granted. There is also no
application for review of the Minister’s failure to make a decision. The court making
that decision would be violating the principle of the rule of law , as the court cannot
make that decision for the Minister.
[15] As for the argument that her tenure right is not affected by the declaration of
invalidity, the first respondent submits that at the time the Rahube order of invalidity
was made (30 October 2018), Mofolo North had not been formalised into a township,
which only happened in December 2019. Thus, by the time Mofolo North was
formalised as a township, which formalisation would have meant an ex lege upgrade
into ownership, section 2(1) was already declared unconstitutional.
[16] However, the first respondent did not take into account that the order of
invalidity was suspended for 18 months. On the first respondent’s interpretation ,
there was no section 2(1) at the time of the upgrade of Mofolo North, since the old
section 2(1) was declared unconstitutional and the new section had not yet been
promulgated. This is not only an incorrect interpretation of the order, it also leaves a
legal vacuum.
(a) any erf or any other piece of land in a formalized township for which a township register was
already opened at the commencement of this Act, shall at such commencement be converted into
ownership;
(b) any erf or any other piece of land in a formalized township for which a township register is opened
ofter the commencement of this Act, shall at the opening of the township register be converted into
ownership;
(c) any piece of land which is surveyed under a provision of any low and does not form part of, a.
township, shall at the commencement of this Act be converted into post ship, and as from such
conversion the ownership of such erf or piece of land shall vest excluindo In the person who,
according to the register of land rights in which that land tenure right was registered in terms of a
provision of any law, was the holder of that land tenure right immediately before the conversion."
3.1.2 Looking at the underlined parts in par. 3.1.1, it is clear that the land tenure rights were converted
and ownership vested automatically by operation of law (ex lege) on:
Date of commencement of ULTRA (1 September 1991) - see section 2(1)(a);
Date of opening of the Township Register - see section 2(1)(b).
[17] Instead, when applying this sequence of the declaration to invalidity and the
subsequent promulgation of the new section 2(1) to the fact s at hand, the following
sequence emerges:
a) Ms Zabala acquired a leasehold property right in the property in 2007;
b) The Rahube judgment declared section 2(1) unconstitutional, but its
invalidity was suspended until May 2020. This means that from 30 October
2018 until 30 May 2020, the old section 2(1) was still applicable.
c) Mofolo North was formalised as a township in December 2019, at a
time the unamended section 2(1)(b) was still applicable, which provides that
any erf in a formalised township, for which the township register was opened
after the commencement of ULTRA, shall at the opening of the register ex
lege be converted into ownership.
d) Since the conversion happened ex lege, the Minister’s approval is not
required. The requirement of Ministerial approv al is only applicable from 1
June 2024.
e) Ms Zabala thus became the owner of the Mofolo North property on the
date that Mofolo North was formalised into a township.
f) Since the Minister’s approval is not required in terms of ULTRA , the
first respondent can register the house in the names of the third and fourth
respondents, if all the other requirements for the transfer of the property are
complied with.
[18] The only concern, and what is not clear from the papers, is whether, but for
the approval of the Minister, there are other reasons why the property should not be
transferred. For that reason, the order is framed in the form of a rule nisi, to allow an
opportunity for the first respondent to place any information before the court should
there be any other reason why the property cannot be transferred.
[19] The applicant asked for punitive costs. I see no reason why this is warranted.
Costs is to be awarded on scale B, given the complexity of the issue.
Order
[20] The following order is made:
1. The matter is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court , and the ordinary time limits and procedures are
abridged to enable the application to be brought as one of urgency.
2. A rule nisi is hereby issued calling upon the First Respondent and all
interested parties to show cause to this court on 15 September at 9:00 why
the following order should not be made final:
a. The transfer of the property described as Erf 1 […] M[…] N[…], City of
Johannesburg, Gauteng Province, situated at 1[…] M[…] Street, M[…] N[…],
Soweto, City of Johannesburg, Gauteng Province, from the Applicant to the
Third and Fourth Respondents is hereby authorised.
b. The First Respondent is directed to effect transfer of the property
described as Erf 1 […] M[…] N[…], City of Johannesburg, Gauteng Province,
situated at 1[ …] M[…] Street, M[ …] N[…], Soweto, City of Johannesburg,
Gauteng Province, from the Applicant to the Third and Fourth Respondents
within 14 days of the granting of the Order.
c. The First Respondent is to pay the costs on a party and party scale, to
be taxed on scale B.
3. Should the First Respondent object to the granting of a rule nisi, they
are allowed to supplement their papers five court days before the hearing. The
Applicant is also allowed to supplement their papers subsequently, two days
before the hearing.
WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg
Date of hearing:
20 August 2025
Date of judgment:
23 August 2025
For the applicant:
SB Vukeya instructed by M Magome
Incorporated
For the respondent:
V Mtsweni instructed by the office of the
State Attorney