IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-078213
In the matter between –
MAHLANGU, ELIZABETH Applicant
and
MABANE, DIPUO VICTORIA First Respondent
THE MASTER OF THE HIGH COURT Second Respondent
THE DEEDS REGISTRAR Third Respondent
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 27 AUGUST 2025
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By transmission of this judgment by email and uploading on Court Online /
Caselines the judgment is deemed to be delivered
JUDGMENT
SNYCKERS AJ
INTRODUCTION
[1] The first respondent, Ms Mabane, is the registered owner of immovable
property in Soweto. She became the sole registered owner after the death of
her husband, the late Dick Mabane. The property duly devolved to her via the
estate of Dick Mabane. She had been married in community of property to Dick
Mabane, and the property had been registered in their names. The transfer to
Mr and Ms Mabane occurred on 28 August 1986. Mr Mabane passed away in
1990. The transfer of his half share to Ms Mabane occurred pursuant to his
death.
[2] The applicant, Ms Mahlangu, occupies the property. In September 2023, Ms
Mabane brought eviction proceedings against Ms Mahlangu in the Protea
Magistrate’s Court.
[3] In response to the eviction application in Protea, Ms Mahlangu alleged that the
property had been fraudulently transferred to the Mabanes in 1986. She sought
a stay of the eviction proceedings pending an application in the High Court (this
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application) to set aside the transfer of 1986, and to seek transfer of the property
into her name. No stay order has been issued in the Protea Court, but Ms
Mabane states that the existence of the High Court application (this application)
is employed in the Protea Court to obtain postponements of the stay application
and of the eviction proceedings. This is an important dimension to this
application and the manner in which it has been prosecuted.
THE CONTENDING VERSIONS
[4] In the founding papers, Ms Mahlangu sets out essentially the following version:
Her late husband, Velly Mahlangu, bought the property at an auction in late
1985. He bought it as their family home. He did so with loan funding from Mr
Mabane. The property was transferred to him in 1986. The Mahlangus took
occupation in 1986. As security for the loan, Mr Mabane held on to the title
deed. Various requests over the years for the title deed came to nought. Mr
Mahlangu passed away in 2017. Ms Mabane started threatening Ms Mahlangu
with eviction from the property in 2023. When Ms Mabane launched the eviction
proceedings, Ms Mahlangu was shocked to see Ms Mabane asserted that she
was the owner of the property. She went to the Deeds office and obtained
documentation that showed Mr Mahlangu had agreed to transfer the propert y
to the Mabanes in 1986. She had been married in community of property to Mr
Mahlangu and had not consented to this. This was a fraud. It should be
corrected and the property should now be transferred to Ms Mahlangu.
[5] The version in answer is a completely different version altogether. It is
essentially this: Mr Mahlangu was an estate agent who had a business
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relationship with Mr Mabane. Mr Mabane bought and sold properties in the
Soweto area. He used estate agents like Mr Ma hlangu to purchase the
properties at auctions and the arrangement was that they would take transfer
of the properties into their own names, and then effect transfer into the name
of Mr Mabane. The property in question was one of these properties. There
never was any loan, and Mr Mahlangu never bought the property for himself.
An oral lease was concluded in terms of which the Mahlangus could occupy the
property at a monthly rental. After Mr Mabane died, Ms Mabane took over the
administration of his properties (and had the property in question duly
transferred to her name). The Mahlangus stopped paying rent, but refused to
vacate. This was frustrating, and efforts on the part of Ms Mabane’s son to
negotiate an outcome proved unsuccessful, with Ms Mahlangu threatening to
get a powerful connected individual involved in the matte r. As Ms Mabane
became a pensioner, she now needed the property to yield a return for her and
took the decision to seek the eviction of Ms Mahlangu.
[6] Some aspects of the answer bear mention. Of course, on the rules relating to
motion proceedings, I must accept Ms Mabane’s version, except to the extent
that it is far-fetched or capable of being rejected out of hand. Far from this being
the case, Ms Mabane sets out several reasons why the version offered by Ms
Mahlangu is far-fetched. Some of the most important are these:
(a) The power of attorney document in terms of which title was originally passed
to the Mabanes clearly set out that Mr Mahlangu was married in community
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of property. The conveyancers would not have proceeded with the transfer
without satisfying themselves of the required consent from Ms Mahlangu.
(b) The rates and taxes accounts for the property had been sent to Ms Mabane.
Ms Mahlangu does not explain why, if she thought the title deed still reflected
her husband as the owner, they never received any of the accounts , nor
ever made any inquiries in this regard.
(c) The eviction proceedings were brought in September 2023. The documents
Ms Mahlangu alleged she obtained after learning, from the eviction
proceedings, that Ms Mabane claimed ownership, were dated March 2023.
They had clearly been obtained several months before the eviction
proceedings were brought. The version in the founding papers therefore
could not be true.
(d) On what basis could Ms Mabane have been threatening Ms Mahlangu with
eviction unless Ms Mabane had title to the property? This is not explained
at all in the founding papers.
(e) The story relating to the title deed is highly implausible given Mr Mabane
and Mr Mahlangu’s knowledge of how security worked in the immovable
property sphere, and the absence of any mortgage agreement. Without an
endorsement of the title deed, its mere possession would have been of no
use to the Mabanes and Mr or Ms Mahlangu could have obtained proof of
title from the Deeds Office.
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(f) Documentation was provided ( as corrected in a supplementary affidavit)
showing Mr Mabane’s modus operandi with other estate agents , thereby
corroborating Ms Mabane’s version.
PROCEDURE
[7] No replying affidavit was delivered to the answering affidavit , that had been
delivered in March 2025. Ms Mabane eventually enrolled the matter for hearing,
having filed her heads of argument. Ms Mahlangu as applicant was entirely
silent and passive in relation to filing heads of argument or co -operating with
respect to a practice note.
[8] The matter was allocated to me for my opposed roll of 25 August 2025. I
allocated it to be heard on Tuesday 26 August at 14.00 or as soon thereafter as
counsel may be heard. This was posted on the public roll, and also set out in a
widely shared note I posted on the Caselines file on 17 August 2025 . My
Caselines note indicated that the matter would be called, with or without heads
of argument from the applicant, but that it would be useful to ascertain the
position of the applicant before the hearing. I also noted in that note that the
notice of set down had been served on the applicant’s attorneys on 7 August
(having been emailed to them in July).
[9] The matter also appeared on the unopposed roll of the same week.
[10] As I was about to enter court on Tuesday 2 6 August at 14.00, to have
the matter called, I was advised that Ms Mabane’s counsel was in court but that
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she had been advised that counsel for Ms Mahlangu would be delayed due to
transport problems, and that I was to wait for him.
[11] My registrar contacted the attorney whose number had been provided
to him as the attorney for Ms Mahlangu. The attorney confirmed that counsel
for Ms Mahlangu, Mr Tshivase, was “on his way to court”. He did not say where
Mr Tshivase was nor when he was expected to arrive, and when my registrar
sought further particularity, the line was cut.
[12] This situation was not acceptable. At around five minutes past two, I had
the matter called and Ms Wierzbicka started addressing me on behalf of Ms
Mabane.
[13] It then emerged that Ms Mahlangu had in fact taken some procedural
steps on Friday 22 August. These comprised the following:
(a) A replying affidavit dated 21 August was served on Ms Mabane’s attorneys,
but not uploaded onto Caselines. It sought condonation for its late filing.
(b) New attorneys of record, Njozela Attorneys, came on board for Ms
Mahlangu by notice dated 21 August 2025.
(c) An amended notice of motion was served on Ms Mabane’s attorneys, in
which the setting aside was now sought via a Rule 53 review, also
contemplating the production of ‘the record’.
(d) Mr Tshivase served an undated practice note (for some reason stating ‘date
of filing: not applicable ’) in which the only information of any significance,
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apart from counsel’s details, was the assertion under ‘status of the matter’
‘matter not ready for hearing’ . This had also not been uploaded on
Caselines.
[14] Physical copies of these documents were handed up to me.
[15] At between 14.15 and 14.20, enter stage left Mr Njozela (Ms Mahlangu’s
new attorney) and Mr Matshidza, another counsel. Mr Matshidza advised me
that he was not appearing for Ms Mahlangu, but was acting only as a
messenger to advise me that he had been asked by Mr Tshivase to advise the
court that he, that is Mr Thsivase, had contacted Mr Matshidza and told him he,
Mr Tshivase, would be at court “in fifteen minutes”. Mr Matshidza could not tell
me what was detaining Mr Tshivase, nor where he was, save that he understood
him to be travelling “from Kagiso”. He could not tell me when Mr Tshivase left
Kagiso, save that Mr Tshivase had assured Mr Matshidza that he, that is Mr
Thivase, would arrive at court “within fifteen minutes”.
[16] As Ms Wierzbicka was, understandably, submitting that the applicant’s
team was apparently seeking to engineer the inability of the application to be
heard, and that I should determine the matter, I felt the best was for the matter
to stand until 15.00 for me to consider the replying affidavit and to take it from
there, affording Mr Tshivase another 40 minutes to arrive.
[17] I considered the replying affidavit in the intervening period.
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[18] The reply comprised nothing other than bald denials and references
back to the founding affidavit. It failed, in any way, to deal pertinently or at all
with any of the allegations in the answer, and in particular to offer explanations
for the issues set out in answer that called for explanations (some of which are
listed above). One of the issues set out in answer was that Ms Mahlangu failed
to establish her locus standi and the basis upon which she claimed to be entitled
to have the property transferred to her. It was pointed out that on Ms Mahlangu’s
version, the property had been registered in her husband’s name when it was
fraudulently transferred. She did not say she was the executrix (or Master’s
representative) in her late husband’s estate. She did n ot say whether her late
husband died intestate or who his heirs were. She did not explain why she
would be entitled to have the property transferred into her name. None of this
was addressed in any way in the reply.
[19] Be that as it may, when the matter was called again at 15.00, Mr Tshivase
was not present. Mr Matshidza had in the meantime received instructions to
represent Ms Mahlangu in the application. He would accordingly address me
on the application for Ms Mahlang u. But, he said, his laptop needed first to be
booted up before he could do so. I entertained some submissions from Ms
Wierzbicka while Mr Matshidza’s laptop booted up. Once his laptop had been
booted up, Mr Matshidza said he needed to be invited to Caseli nes to be able
to address me. Ms Mabane’s attorneys there and then duly invited him to
Caselines.
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[20] Mr Matshidza then addressed me on behalf of Ms Mahlangu. I had in the
meantime ruled that I accepted the replying affidavit and would determine the
matter on the papers as they stood.
[21] Around half past three or twenty to four, Mr Matshidza advised me that
Mr Tshivase had now messaged him to say he, Mr Tshivase, was “in Pritchard
Street”. The idea was that Mr Tshivase would take over and address me on
behalf of Ms Mahlangu. Given the history of the afternoon, I was decidedly
uncertain that Mr Tshivase would appear, and if so, when. Mr Matshidza
continued to address me.
[22] Enter stage left, at around 15.40, Mr Tshivase. He apologised. He said
his son had been in an accident. This was the first anybody mentioned an
accident. He also said he had been in chambers from seven o’clock in the
morning. I felt further wasting of time on the precise whereabouts of Mr Tshivase
at different times of the day was not appropriate at that point in dealing with the
matter. Be that as it may, he said the matter was not ready to be heard and had
not been properly enrolled.
[23] I told Mr Tshivase he should address me on the application and that I
had accepted the replying affidavit. I told him I was not inclined to allow the
applicant to use her own default (not having filed heads of argument) as a basis
to postpone the finalisation of the matter. I told him we were dealing with the
issue that Ms Mahlangu had failed to indicate her locus and why the property
should be transferred into her name.
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[24] Mr Tshivase then said “his junior”, referring to Mr Matshidza, would
address me on the application , instead of Mr Tshivase himself . I was taken
aback. I asked Mr Tshivase to confirm that it was his decision that Mr Matshidza,
who was not steeped in the matter, should address me, and that he, Mr
Tshivase, who was steeped in the matter, would not address me. This Mr
Tshivase confirmed. I was not going to debate the appropriateness of that
decision with Mr Tshivase at that point.
[25] Back to Mr Matshidza. Mr Matshidza now sought an order postponing
the matter and directing Ms Mahlangu to “supplement her papers”. This, I was
told, was to allow justice to be done.
[26] I heard the matter until 16.30 and then reserved judgment.
PLASCON-EVANS OR REFERRAL?
[27] It needs no belabouring that on the papers as they stand it is impossible
to give relief to Ms Mahlangu.
[28] Not only is the respondent’s version full, credible and substantiated; the
reply to it is woeful in setting up any genuine dispute on the papers in respect
of the respondent’s version. The reply fails to attempt to address, let alone does
address, any of the serious problems with the version in founding set out in the
answer.
[29] One of the points taken in answer is that the registrar’s act of registration
was not administrative action susceptible of “review” – this is based on good
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authority.1 The amended notice of motion styling the relief as a Rule 53 review
simply compounds this problem. Any neutral observer of the events in this
application, and its relationship to the pending eviction proceedings in Protea,
would be forgiven if he or she were to remark that the obvious purpose of the
amended notice of motion was to prolong the finalisation of this application, as
now a ‘record’ would need to be produced before the ‘review’ could be
answered.
[30] In the present circumstances, it would not be appropriate to refer the
matter to trial or to allow Ms Mahlangu a further opportunity to supplement her
papers, instead of to dismiss the application on the rules applicable to motion
proceedings. The events as they unfolded on the day, as set out above, hardly
assisted in rendering it fair that the applicant achieve further delay in the matter,
to be able to employ such delay in Protea as a reason to contend that this matter
is not yet finalised, and to keep contending that the eviction proceedings cannot
continue until this matter has been finalised.
[31] Ms Wierzbicka sought a punitive cost order. Although the events leading
up to and on 26 August set out above deserve the censure of the court, I have
in my discretion declined to visit them upon Ms Mahlangu by way of a punitive
order.
ORDER
[32] In the circumstances, the following order is made:
1 See Nedbank Ltd v Mendelow and Another NNO 2013 (6) SA 130 (SCA) and Kuzwayo v Representative of
the Executor in the Estate of the late Masilela [2010] ZASCA 167; [2011] 2 All SA 599 (SCA).
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The application is dismissed, with costs, on scale B
___________________
FRANK SNYCKERS
ACTING JUDGE
Heard: 26 August 2025
Judgment: 27 August 2025
For applicant:
Adv Tshivase (at times)
Adv Matshidza
Instructed by: Njozela Attorneys, Johannesburg
For first respondent:
Adv B Wierzbicka
Instructed by: Ningiza Horner Attorneys, Sandton