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JUDGMENT
DU PLESSIS J
Introduction
[1] This application was enrolled on the unopposed roll. Like many others, it
concerns disputes arising from family homes, marriages, divorces, and deceased
estates.
[2] The applicants are representatives of the estate of the late Samaria Masuku
(“the deceased”) and heirs to the estate. The fifth respondent is Moses Shapo (“Mr
Shapo”), the deceased’s former husband, from whom she was divorced in 1987, after
he disappeared from her life and the family home.
[3] The documents annexed to the founding affidavit tell the story. The deceased
and Mr Shapo got married in 1973, in community of property. In 1981, it was clear that
Mr Shapo no longer intended to stay with the deceased; he had left the house in 1977
and stopped paying the rent in 1979. The deceased filed a complaint against Mr Shapo
for neglecting her and their home. During that time, the deceased approached the
Community Council Ward 5, pleading that Mr Shapo not be considered part of the
household and not be entitled to lay claim to the family house that belonged to her
father. The Ward Councillor wrote to the commissioner a letter recording the following:
“Samaria Shapo complains that her husband, Moses Shapo left their home June 1980.
He does not maintain her, neither pay rentals for their house […].
Moses Shapo has not respected my calling in notes, neither yours. I appeal, Sir, that
he should be fetched from his place of employment so that he states his reasons: […]
House 5891 was originally allocated to Johannes Maseko (late) it was then transferred
to him.
The danger now is that Samaria may loose tenancy of her father’s home. I plead that
this house should remain as it is until Moses is called by your office. If he does not
intend living with his wife, the house must be allocated to Samaria Shapo who has 3
dependants:
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1. Alfred Maseko (her brother who is ill)
2. Petrus Maseko (her brother a lodger)
3. Daniel Maseko brother a lodger.
Her children:
i. Morris Masuku
ii. Joshua Masuku”
[4] Summons for divorce followed in 1982, in which the deceased also sought
forfeiture of the benefits of the marriage against Mr Shapo. A divorce decree was
granted in the absence of Mr Shapo. The erstwhile Johannesburg Civil Regional Court
can no longer provide a record of the divorce decree, due to a flood that damaged
many files.
[5] Early in the new constitutional dispensation (1996), the deceased approached
the Housing Transfer Bureau to claim the property she lived in, as the sole claimant.
She filled in the appropriate form with only her name, and the Housing Transfer Bureau
Administration Office in Daveyton soon addressed a letter to her, congratulating her
on the allocation of the house. The letter indicates that she needs to verify that the
draft title deed contains the correct information, and that she must bring her marriage
certificate and her husband’s identity document, and that they both need to sign.
Although she applied in her own name, the Bureau requested her marriage certificate
and her husband’s identity document, which likely led to his details being included
erroneously.
[6] Despite being divorced by this time and having applied for the leasehold in her
name only, the leasehold was registered in the names of both her and her ex-husband,
who had already been absent from her life for 20 years. This only became evident as
a problem after her passing in 2013, when the registrar refused to transfer the property
(which the applicants still occupy) into their names only, as the fifth respondent’s name
was registered in the title deed and thus remains regarded as a co-owner.
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The law
[7] Although not clearly stated in the founding affidavit, the document submitted to
the housing bureau requested that the deceased submit her marriage certificate and
provide details about herself. A logical inference would be that this is how the name
ended up on the title deed – it is difficult to find another explanation of where the deeds
office would obtain the information about Mr Shapo, who, by the time the documents
were lodged, had left the home 17 years ago. The registration of the title deed into the
name of the deceased and Mr Shapo was clearly a mistake, and reflected neither
party’s intention.
[8] For rights to pass, registration must be accompanied by a real agreement, a
meeting of minds between transferor and transferee.
1 On the facts, no such agreement
existed, and therefore, no rights passed. The only question is whether this should be
done in terms of section 4 or 6.
[9] Section 4 of the Deeds Registry Act 47 of 1937 provides
“4. Powers of registrar.—(1) Each registrar shall have power—
[…]
(b) whenever it is in his opinion necessary or desirable to rectify in any deed or other
document, registered or filed in his registry, an error in the name or the description of
any person or property mentioned therein, or in the conditions affecting any such
property to rectify the error: Provided that—
(i) every person appearing from the deed or other document to be interested in
the rectification has consented thereto in writing;
(ii) if any such person refuse to consent thereto the rectification may be made on
the authority of an order of Court;
(iii) if the error is common to two or more deeds or other documents, including any
register in his or her registry, the error shall be rectified in all those deeds or
other documents, unless the registrar, on good cause shown, directs otherwise;
(iv) no such rectification shall be made if it would have the effect of transferring any
right.”
1 Air-Kel h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A).
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[10] In other words, the registrar has the power to rectify the documents mentioned
in section 4(1), but with the safeguard that parties must consent in writing, or , in the
absence of such consent, by court order, but only if such rectification does not result
in the transfer of rights.
[11] Where rectification would transfer rights, section 6 applies. Under s 6(1), read
with s 102, a deed of transfer may only be cancelled by order of the High Court,
declaring the transfer null and void. This revives the earlier title deed. While section 4
is mentioned in the affidavit, section 6 was relied on in the heads of argument.
[12] In Bester NO v Schmidt Bou Ontwikkelings CC,
2 the SCA confirmed that where
no real agreement exists, rectification under s 4(1)(b) is competent. The same applies
here: since no agreement existed that Mr Shapo acquire rights, the entry of his name
was erroneous. As such, rectification under s 4(1)(b) is appropriate, with this Court’s
order. Since he obtained no rights, the error can be rectified by the registrar without
the need to cancel the title deed, as the rectification will not result in the transfer of any
rights. Since Mr Shapo cannot be found and thus cannot agree to such a rectification,
the court can order the rectification.
[13] This approach is reinforced by the fact that the house the applicants live in is a
“family home”, and that Mr Shapo no longer has any rights in the property since he left
the house. It was already clear in 1981 that the family's intention was for Mr Shapo,
who had left the house, to have no rights to the house. The deceased sought a divorce
and a forfeiture of benefits, which decree was granted. He therefore also does not
have a legal claim to the property. Moreover, he has not been seen at the property for
over 40 years. These facts reinforce that he has no legal or other claim to the house.
[14] The applicants requested that the second respondent pay the costs of this
[14] The applicants requested that the second respondent pay the costs of this
application. However, on the facts, I am not persuaded that the second respondent
acted wilfully or negligently in causing the error.
2 [2012] ZASCA 125 para 8.