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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
APPEAL CASE NO: A203/24
CASE NUMBER: 67238/18
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
10/10/2025
In the matter between:
NHLODI FRANS NTEKWANA Appellant
and
MAITE LYVIA NTEKWANA Respondent
In re:
MAITE LYVIA NTEKWANA Applicant
and
FRANS NHLODI NTEKWANA Respondent
ALL OTHER UNLAWFUL OCCUPANTS Second Respondent
CITY OF EKHURHULENI METROPOLITAN Third Respondent
MUNICIPALITY
JUDGMENT
FRANCIS-SUBBIAH, J (MOLOPA-SETHOSA J and LABUSCHAGNE J
CONCURRING)
[1] The Respondent herein, Ms M L Ntekwana (“Ms Ntekwana”) had launched
an application for the eviction of the Appellant, Mr FN Ntekwana (“Mr
Ntekwana”) from House No. 3[...] M[...] Street, Tswelopele Extension 6,
Tembisa (“ the property”). The Appellant filed a counterclaim seeking a
declaratory order that he is the owner of the said property in question. Mr
Ntekwana and his family resided on the property from the time of its
establishment to date ; whereas Ms Ntekwana has never resided at the
property in question. The ownership of the property remained in dispute.
The court a quo ordered the eviction of the Mr Ntekwana and all of those
residing in the property and dismissed the declaratory relief.
[2] It is common cause t he Respondent, Ms Ntekwana holds the Title Deed of
the property in her name. She relied on this Title Deed in support of the
eviction application. According to her the main reason for granting the
Appellant occupation of the property was the high crime rate in the area. She
further set out in Annexure C of the documents that the electricity, water and
rates had not been paid and continued to escalate as the reason for wanting
the property. The Appellant stated that the municipality’s billing system is
problematic and therefore that he has encountered problems and he accepts
that the municipal bill is his responsibility.
[3] The court a quo had inquired why there is a dispute when there is a Title
Deed held over the property . The reason for the Title Deed being registered
in the name of the Respondent was primarily to secure the allocation of the
stand in 1998. T he Appellant in his answering affidavit set out the
circumstances that led to his occupation of the property in a much different
version to that of the Respondent.
[4] The Appellant explained that he acquired the property through his uncle, Mr
Morongwa Paxton Ntekwana (“Paxton Ntekwana”), who is also the brother of
the Respondent. His uncle , Paxton Ntekwana, was allocated two adjacent
stands in 2001 by the government. These stands were allocated in the low -
income residential area also known as the Reconstruction and Development
Programme ( RDP) development. It aims to provide affordable housing for
low-income individuals and families with limited financial means in line with
the Housing Act 107 of 1997.1
[5] According to the Appellant his uncle gave him one of the stands to occupy,
and he took up residence on the property in question. He occupied Stand
3[...] M[...] Street, Tswelopele Ext 6, Tembisa. The Appellant further pointed
out that t he Respondent has never stayed at the property at any point in
time.
[6] When the property stand was given to the Appellant, he occupied it by
erecting a shack upon it. Later the RDP house was erected, and he made
improvements to the property with a retaining wall and paving.
[7] On or about March 2003, the Appellant and his uncle Paxton Ntekwana
came to an agreement regarding the property . They agreed that the
Appellant will receive the property from his uncle for an amount of money.
Once the money is paid, Paxton Ntekwana will transfer the property into the
name of the Appellant. The Appellant paid the amount of R10 000.00 to his
uncle Paxton Ntekwana . The Respondent did not pay any sum of money
towards the property.
1 Gauteng Provincial Government ‘Apply for RDP housing subsidy’
https://www.gauteng.gov.za/Services/GetServices?serviceId=CPM-001389 (Accessed 21 July 2025).
[8] As the Appellant paid the money to his uncle, the uncle convened a meeting
with the Respondent instructing her to effect the transfer of the property to
the Appellant. In attendance w as his uncl e Paxton Ntekwana , the
Respondent and his cousin, one Diamond Ntekwana and himself . The
confirmatory affidavit of Diamond Ntekwana indicated that he heard and
acknowledges that the Appellant had received or purchased the property
from his uncle Paxton Ntekwana.
[9] The Appellant’s counsel submitted that the court a quo erred in applying the
abstract system in ownership. In accordance with this system the transfer of
ownership is valid if the formal requirements are met regardless of whether
the underlying cause is valid. In contrast, the causal system applies when
the validity of the underlying cause affects the transfer of ownership; if the
cause is invalid or void, then the transfer of ownership is also invalid,
regardless of any formalities.
[10] The Appellant set out in his affidavit that , over a period of several years, he
repeatedly requested the Respondent to accompany him to the relevant
authorities to effect the transfer of ownership of the property from her name
to his. However , she consistently claim ed that she was unavailable due to
odd working hours.
[11] The Respondent in her affidavit e xplained that the Appellant had informed
her that he was unable to participate in matters re lating to the property
because he was not its registered owner. He therefore requested her to sign
an affidavit g ranting him the authority to act in the matters requiring
ownership status. Her affidavit as per Annexure B states:
“I am above -mentioned black female, swear under oath that I give my
brother the shelter that belongs to me (sic). I give him the permission to
own that shelter. The owner of the shelter from now is Nhlodi Frans
Ntekwana.”
[12] At that point in time, the structure located at the address in question was a
shelter erected on the property by the Appellant and not a formal RDP
house. This was the Respondent’s explanation of how the Appellant came to
occupy the property.
[13] The Appellant’s advocate argued that in determining whether the Appellant
should be evicted from the property, consideration should be given not only
to the Title Deed but a lso to the surrounding circumstances relatin g to the
property’s ownership. According to the Respondent she gave the Appellant
the right to stay on the property and did not transfer ownership to him. Whilst
the Appellant submits that Annexure B is evidence indicating that the
Respondent relinquished ownership of the property.
[14] Moreover, the Appellant’s uncle Paxton Ntekwana stated that he had
instructed the Appellant to remain o n th e property until further notice. His
uncle also declared that he is the lawful owner of the property and decided to
sell the stand to the Appellant.
[15] Section 26 (3) of the Constitution of South Africa 2 emphasizes that no
legislation may permit arbitrary evictions. Section 26(3) provides:
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.
[16] The due process required is that evictions cannot occur without a court
order. There is a further requirement that courts must ev aluate all relevant
circumstances before granting the court order. Practical guidance of how
Section 26(3) applies is found in Ross v South Peninsula Municipality ,3
where it was emphasised that evictions are not automatic and the court
balances the property rights of the owner with the rights and dignity of the
2 Act 108 of 1996
3 2000 (1) SA 589 (C)
occupiers. Courts exercise an active role in protecting vulnerable groups
from arbitrary or unjustified eviction.
[17] Sufficient factual information must be provided to enable the court to
properly exercise its discretion. Personal circumstance may include the
reason for the eviction, length of occupation, vulnerability and any dispute
surrounding ownership and RDP house allocation. The Appellant contends
that occupation of the property was a form of delivery.
[18] It was argued before the court a quo that on a sensible interpretation, if a
person holds full ownership of a property, there would be no need to obtain
authorization from another person to occupy it. This is a further submission
in support of the request to lead evidence and to determine the true
ownership of the property.
[19] The RDP programme was introduced after the 1994 elections, to address
the structural inequalities created by apartheid. It focused on delivering
adequate social services to previously disadvantaged populations aimed to
reduce poverty, improve social services and build ing robust e conomic
foundations. 4 Despite challenges such as widespread corruption, the RDP
programme promises housing to disadvantaged communities. As it stands,
there is a substantial waiting list, and the Department of Housing faces a
massive backlog when it comes to allocating houses and issuing title deeds.5
Malete’s illustrations depicts the allocation processes.6
[20] Individuals who receive an RDP house are the legal owners, and not
tenants. However, to formalize and validate this ownership, a Title Deed
must be issued and registered at the Deeds Office. This process can be
lengthy and often results in beneficiaries occupying the properties for several
years before receiving their Title Deeds. This means that upon receiving the
4 Rankin, C “Substantiating Access: Considering when Access to Housing Becomes Enough to
Warrant Legal Protection” 2024 Constitutional Court Review.
Warrant Legal Protection” 2024 Constitutional Court Review.
5 Department of Human Settlements at ‘www.ndd.co.za’,
6 Malete, R “Allocation process on the delivery of RDP houses: A case study at the City of
Johannesburg Municipality” 2014 University of Witwatersrand at page 50.
house, beneficiaries do not immediately have full ownership rights. Once
ownership is granted, the general upkeep of the house is the responsibility of
the owner . While municipalities are responsible for maintaining
infrastructure, it is ultimately the homeowner’s duty to care for the property
and keep it in good condition.7
Evaluation
[21] Courts have corrected title errors, facilitated correction of administrative title
mistakes years later and ordered cancellation of incorrectly registered
deeds. In Mphirime v Pouane and Others , 8 the Applicant had occupied an
RDP house since 2001 . Initially it was a shack-built house and later
improved into a proper dwelling. The Applicant entered into a donation
agreement to transfer rights of the property to her self. In this regard
documentation was submitted to the local council for registration of a Title
Deed in her name.
[22] A hearing before the Housing Adjudication Committee in September 2002
was held to be binding and enforceable. A donation was recorded, and a
familial transfer of occupation took place . The Court upheld the donation
agreement as valid and binding, ordering the cancellation of the incorrectly
registered Title Deed and its realignment in the applicant’s name. The court
found no justification for eviction or invalidation of the agreement and
condemned the Respondent’s attempt as unjustified.
[23] This matter can be distinguished from prohibited sales where this is a familial
transfer and not a sale that avoids the pitfalls outlined in Dlamini v Chuene
and Others9. In this case, it was held that sales without a valid title are void,
statutory moratoriums protect RDP housing, as the Housing Department
7 Moolla, R et al “Housing satisfaction and quality of life in RDP houses in Braamfisherville, Soweto: A
South African case study” , Dugard, F “Staircase or safety net? Examining the meaning and
functioning of RDP house ownership among beneficiaries: a case study of Klapmuts, Stellenbosch”
Law Democracy & Development , Law for All ‘The Ultimate Guide to RDP Housing in South Africa’
https://www.lawforall.co.za/homes-property/rdp-housing/ (Accessed 21 July 2025)
8 (59991/2015) [2017] ZAGPPHC 959 (29 March 2017).
9 (61528/2021) [2024] ZAGPPHC 332 (15 April 2024)
becomes the owner. An RDP house can only be sold once the owner and
buyer have received written consent from the Municipality and have lived in
the RDP house for at least 8 years. Owing to it being government subsidiary
housing, it is illegal to buy or sell RDP houses without permission. 10 The
Appellant submits that he has lived at this property for 24 years.
[24] The Respondent has the Title Deed but has never lived on the property or
paid for the municipal rates and taxes . She has signed a statement
assigning property rights to the Appellant that bolsters the Appellant’s case
but textually refers to a structure only. He however advances a history that
points to more than the structure , i .e. the property itself having been
assigned to the Appellant. These conflicting contentions were not seen as
insurmountable disputes of fact in motion proceedings as the Title Deed was
upheld by the court a quo . In the context of RDP housing this was a
misdirection. The factual dispute needs to be resolved. For all the above
reasons, I conclude that the court a quo erred in evicting the Appellant from
the property, notwithstanding the existence of a registered title in the name
of the Respondent. The proceedings were instituted in circumstances w here
a clear dispute existed over ownership of the property. The parties’ versions
about the reasons for occupation of the property and the alleged ownership
are different. The circumstances under which the property was occupied
may also be considered by the court hearing the evidence. The Appellant
lived at the property for 24 years and the Respondent has never resided on
the property. Appellant’s counsel raised the question of prescription as
another available legal remedy.
[25] It is incumbent that a court should proceed with caution when parties
disagree on material facts and the supporting evidence reveals unresolved
issues requiring clarification. When it is fitting to refer a matter to evidence
issues requiring clarification. When it is fitting to refer a matter to evidence
10 JJR Inc. Attorneys ‘Can you sell an RDP house?’ https://jjrinc.co.za/can-you-sell-an-rdp-house/
(Accessed 21 July 2025)
was considered in Shoprite Holdings Ltd v Oblowitz and others ,11 where
Davis J explained the test as follows:
On the basis of the Wallach test, it would appear that the critical question in
this regard is: Is there material which could be placed before the Court which
could inform an evaluation of these contentions, the resolution of which is
critical to the determination of the main application?12
[26] Rule 6(5)(g) of the Uniform Rules further provides when it is appropriate to
refer a matter to evidence as follows:
Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to
ensuring a just and expeditious decision. In particular, but without affecting
the generality of the foregoing, it may direct that oral evidence be heard on
specified issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for such
deponent or any other person to be subpoenaed to appear and be examined
and cross -examined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition of issues, or otherwise.
[27] A court of appeal has a discretion to refer a matter to oral evidence. It will not
apply its own decision solely on the premise that it disagrees with the view
exercised by the court a quo. The court of appeal will interfere if a discretion
was not properly exercised , had been inf luenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in the result
could not reasonably have been made by a court properly.
[28] In Ferris and Another v Firstrand Bank Limited and Another 13 it was
emphasised that:
An appeal court may interfere with the exercise of a discretionary power by a
lower court only if that power had not been properly exercised. This would be
so if the court has exercised the discretionary power capriciously, was moved
so if the court has exercised the discretionary power capriciously, was moved
by a wrong principle of law or an incorrect appreciation of the facts, had not
11 [2006] 3 ALL SA 491 (C).
12 Ibid at 501.
13 (CCT 52/13) [2014 (3) BCLR 321 (CC). at para 28.
brought its unbiased judgment to bear on the issue, or had not acted for
substantial reasons.14
[29] From the above factors considered in the present matter, it points to the fact
that oral evidence and cross -examination are required to properly determine
the ownership dispute. Only when this is done can the court fulfil its role as
the impartial arbiter of the dispute and ensure justice is properly served. It
will be in the interest of justice that the evidence be heard by another judge
because the court a quo already made a determination.
[30] As a result, the following order is made:
1. The appeal is upheld.
2. The order of the court a quo is set aside and substituted with the
following:
2.1 The matter is referred to oral evidence on the issue of true
ownership of the property before a different Judge.
2.2 Appellant and Respondent shall testify at the hearing, and they
shall be entitled to call and/or subpoena any witness(es) that
may assist the court in determining the true ownership of the
immovable property, subject to the following directives:
2.2.1 Should the parties wish to add anything to their
testimony as contained in their affidavits, they shall
within 60 days from the date of this order deliver a
sworn affidavit in this regard to the other side and file
the original with the court;
2.2.2 The evidence of any witness to be called or
subpoenaed by any of the parties shall be contained in
an affidavit and delivered to the other party and filed
with the court within 60 days from the date of this order;
14 Ibid para 28.
2.2.3 Insofar as any of the parties intend to rely on further
documentary evidence, a list of such documents shall
be prepared and confirmed under oath and delivered
together with copies of such documents on the other
side and filed with the court within 30 days from the
date of this order.
3. The costs of the appeal will be costs in the referral to oral evidence.
R FRANCIS-SUBBIAH
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
E LABUSCHAGNE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For Appellant: Adv Moja
Instructed by: TC Mphela Attorneys
For Respondent: Adv Mathebula
Instructed by: Serumula MT Attorneys
Date of hearing: 15 April 2025
Date of Judgment: 10 October 2025
This judgment is handed down electronically by circulation to the parties/their legal
representatives by email and through uploading same on the electronic file of this matter on
Caselines. The date of delivery of this judgment is deemed to be 10 October 2025.