SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE No: 12193/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: DIAMOND AJ
DATE: 03 NOVEMBER 2025
In the matter between:
BA-PALABORWA LOCAL MUNICIPALITY APPLICANT
and
MINISTER OF AGRICULTURE, FIRST RESPONDENT
LAND REFORM & RURAL DEVELOPMENT.
MEMBER OF THE EXECUTIVE COUNCIL, SECOND RESPONDENT
DEPARTMENT OF COOPERATIVE
GOVERNANCE, HUMAN SETTLEMENTS
AND TRADITIONAL AFFAIRS,
LIMPOPO PROVINCE.
THE MASTER OF THE HIGH COURT, THIRD RESPONDENT
LIMPOPO DIVISION, POLOKWANE.
THE REGISTRAR OF DEEDS, POLOKWANE FOURTH RESPONDENT
MOGUDI JOYCE MOKHESE FIFTH RESPONDENT
NEIL CHRISTIAAN JACOBS N.O. SIXTH RESPONDENT
THOMAS LUKOSE SEVENTH RESPONDENT
CHAMAKALAKIZHAKETHIL N.O.
JOY PREEMA N.O. EIGTH RESPONDENT
DEVENDRA BABOOBHAI N.O. NINTH RESPONDENT
THAKI WILLIAM MOJAPELO TENTH RESPONDENT
MASAKOMARY MOJAPELO ELEVENTH RESPONDENT
JUDGMENT
DIAMOND A J:
[1] The ultimate question in this application is simple. However, to arrive at the
ultimate question, an epic journey through the procedures for registering properties
that were previously registered under the Black Administration Act, 1927, was
necessary.
[2] One Jackson John Mogudi (“the Deceased”) held a Title Deed, TG 138/1974
LB in respect of a pro perty known as Erf 3[...], Namakgale-B Township, Registration
Division LU, Limpopo Province measuring 1837 sq. meters (the “Property”)
[3] As is clear from the number of the Title Deed, the Property was created in
1974. It is not clear exactly when the De ceased became the registered title holder of
the Property, but all parties to this application appear to accept that the Deceased
did in fact become the registered title holder of the Property, and I will approach the
judgment on this basis.
[4] The Applicant alleges that around the 25th of May 2004, the Deceased made
application for the transfer of the property to the 10 th and 11 th Respondents. I will
refer to this transaction as the Mojapelo transaction.
[5] The Deceased passed away on 21 October 2012.
[6] The 6th Respondent (by virtue of the fact that it is the appointed executor of
the estate of the deceased) as well as the 5 th Respondent (by virtue of the fact that
she was the surviving spouse of her marriage with the deceased which was in
community of property) both applied for the transfer of the Property to the 7th, 8th and
9th Respondents, being the trustees of the Chamakala Trust. I will refer to the three
respondents as “the Trust ”. I will refer to this transaction as the Trust transaction.
The two Respondents signed this appli cation on 31 July 2015 , and the application
was done on the officially prescribed form (PLD 007) and eventually registered in the
Deeds Office in Pretoria, and a Deed Number was endorsed on the application, viz
TG 114181/200151
[7] The reason for the transfer is given on the document as “SALE”.
[8] It seems that shortly after h aving become the owners, by virtue of the
registration of the request for the transfer of ownership in the Deeds Office in
Pretoria, the Trustees started to exercise ownership rights on the subject property.
[9] It seems furthermore that the Mojapelos, seemingly under the impression that
they were the owners of the subject property by virtue of the Mojapelo transaction,
started to interfere with the Trustees' exercise of ownership on the subject property.
1 It needs to be stated at this juncture that the copies of documents attached to the documents on the
court file are illegible and poor copies. This made the writing of this judgment tedious and time -
consuming. It is not clear precisely what the number of the Title Deed endorse ment was, several
other documents are also barely readable.
[10] The trust applied for an interdict in the Magistrates' Court for the district of
Namakgale interdicting the Mojapelo from interfering with the Trustees' exercise of
their ownership rights with regard to the Property. The order was given on 10 June
2016.
[11] The Mojapelo ’s thereafter continued to seek ass istance from officials of the
Applicant, and they were always assured that they had concluded a “valued sale
agreement” for the acquisition of the property. The explanation given by the officials
was, howe ver, that the officials of the Second Respondent did not process the
transfer due to an administrative error.2
[12] The Mojapelos instituted action against the 3 rd, 4 th, 5 th, 6 th, 7 th and 8 th
Respondents in which they sought a declaration that the Trust trans action was null
and void and a further order setting aside the transfer of the property to the Trust and
further relief pertaining to the estate account of the dece ased. This action was
instituted on the 11th of April 2017.
[13] This action was never brought to finality, and it seems it was eventually
withdrawn.
[14] The Mojapelos thereafter laid a complaint, on 22 January 2022 with the Public
Protector, stating in their complaint that they did everything required of them to effect
transfer of the Property into their name following the Mojapelo transaction. The
Public Protector gave the Applicant the opportunity to respond to the complaint.
[15] On the 21st of July 2020 , the Applicant and t he Mojapelos entered into a
settlement agreement in terms of which:
• The Applicant admitted and conceded that Mr. Mojapelo bought the
property from the Deceased.
2 Par 57.1 of the Founding affidavit
• That Mr. Mojapelo initiated the process of transferring the property from
the Deceased into its name.
• That the Applicant admits that due to administrative problems the
Property was not transferred.
• That the Municipality has appointed a conveyancer who shall
commence with the process of nullifying the Trust transaction and furthermore
to register the property in the name of the Mojapelos.
[16] This application is then the application which the Applicant brings to discharge
their obligation towards the Mojapelo's, that is to commence with a process of
nullifying the Trust transaction and to register the subject property in the name of the
Mojapelo's.
[17] In this application, the applicant applies for:
• An order condoning for the bringing of a review application outside the
180-day time period in the Promotion of Administrative Justice Act, 2000 (Act
3 of 2000)(“PAJA”):
• An order setting aside the decision of the applicant to approve the trust
transaction.
• An order setting aside the approval of the second respondent
approving the transfer of the trust transaction.
• An order ordering the second respondent to give effect to the Mojapelo
transaction.
• An order ordering the Fourth Respondent to effect registration of the
transfer to Mojapelo’s.
[18] Section 9 of PAJA stipulates that a court or tribunal may grant an extension of
the 180-day period where the interests of justice so require.
[19] Regarding the application for the extension of tim e in terms of section 9 of
PAJA:. I deem it in the interest of justice to grant condonation to the Applicants. It
has to be said simultaneously, though, that the Applicant does an exceptionally poor
job of explaining the lapse of almost 20 year time peri od before this review
application was brought.
[20] Apart from that, although the applicant explains certain actions which the
Mojapelos took in the meantime, long periods of time are still unaccounted for. What
is also clear though is that the Mojapelos undertook several actions and that there
were previously two court cases instituted, and a complaint laid with a Public
Protector in order to resolve this issue.
[21] It is time to bring this dispute to rest, and it is therefore in the interest of justice
to extend the period within which the Applicant shall be entitled to bring this
application, and the period is extended up until the date of the issue of this Notice of
Motion.
[22] I will turn at this juncture to the merits of the application.
[23] What was set out in paragraphs 1 to 17 above was the timeline of events that
unfolded, and which led to the bringing of this application.
[24] There is a second timeline which is pivotal to adjudicate this application, and
that is the timeline of the unfolding of the legal context within which transfers of
properties of the nature of the subject property had been done in the past and are
currently being done.
[25] Between 1927 and 1991, properties that were created as registrable entities
either in townships or outside formalized townships were registered and transferred
in terms of the stipulations of the Black Administration Act, 1927, and the regulations
promulgated in terms thereof. It is common cause between the parties that the
subject property is such a property.
[26] The specific nature of the procedures in terms of which properties were
created as registrable entities and the granting o f rights with regard to those
properties, as well as the transfer of those rights, took place over an extended period
of time and is complicated. I do not deem it necessary to delve into this aspect for
purposes of this judgment.
[27] What is important fo r purposes of this judgment is that there were several
governmental institutions involved in the granting and transfer of land pertaining to
such properties, depending on the relevant legislation that applied at that stage to
the persons (black persons) an d where such properties were situated. Of pivotal
importance for this judgment, however, is that none of those transactions were
registrable in terms of the Deeds Registries Act, 1937 (Act 47 of 1937). That is the
Act dealing with property registrations fo r white people in South Africa. I will
henceforth refer to this act as the Deeds Registries Act.
[28] Things changed in 1991. On the 1 st of September 1991, the Upgrading of
Land Tenure Rights Act 1991 (Act no 112 of 1991) (“the Act”) commenced.
[29] Also, in 1991, the Abolition of Racially Based Land Measures Act, 1991 (Act
No. 108 of 1991) repealed segregated land legislation laws in South Africa and
scrapped all laws enforcing racial segregation and land segregation and abolished
racially based institutions.
[30] It is important to note, however, that in terms of certain transitional
arrangements, the institutions, deeds registries, and administrative systems were
kept in place until such time that final rationalisation could take place.
[31] The rat ionalisation of administrative procedures, Deeds Registries, and
procedures were finalised in 1997 with the so- called Presidential Proclamation R9 of
procedures were finalised in 1997 with the so- called Presidential Proclamation R9 of
1997 that dealt specifically with the rationalization of the Deeds offices in South
Africa. In terms of t his proclamation all historically separate Deeds Registries
integrated the registries into the Deeds Registries existing in terms of the Deeds
Registries Act, 1937 and clarified the transfer, consolidation, and discontinuation of
the so-called rationalized registries.
[32] Since both the Mojapelo and Trust transactions occurred post 1997, in other
words, at a stage that the separate Deeds, Registries, in terms of the Black
Administration Act were done away with, I will not deal at all with the registrati on of
property transactions between 1991 and 1997.
[33] Section 6 of the Act stipulates as follows3:
“6. Effect of Act. — (1) The provisions of any law governing the registration
and transfer of any land tenure mentioned in Schedule 1 shall—
(a) as from the commencement of this Act, no longer apply in respect of
any township referred to in section 2 (1) (a) or in respect of any erf or any
other piece of land in such township;
(b) as from the opening of a township register for a township referred to in
section 2 (1) (b), no longer apply in respect of the township for which the
township register is opened or in respect of any erf or any other piece of land
in such township; or
(c) as from the commencement of this Act, no longer apply in respect of
any land which does not form part of a township.
(2) As from the discontinuation of the provisions of any law in terms of
subsection (1) relatin g to any township or piece of land referred to in that
subsection, any authorization in any such law for the granting of any land
tenure right mentioned in Schedule 1 in respect of any erf or other piece of
land in such township or in respect of such piece of land, shall be construed
as authorization for the granting of ownership in respect of any such erf or
piece of land.
(3) Property transactions in any township referred to in section 2 (1) (a) or
(b) shall—
3 I added the emphasis.
(a) in the case of the transfer of any erf or any other piece of land of which
the township owner is immediately after the commencement of this Act or the
opening of the township register, as the case may be, still the owner, be
disposed of in accordance with section 3 (1) (a), if any land tenure righ t
mentioned in Schedule 2 has been granted in respect thereof, or in
accordance with section 13, if any such land tenure right has not been
granted in respect thereof; and
(b) in the case of any other transfer of erven and other pieces of land in
any such township, be disposed of in accordance with the Deeds Act.
(4) Property transactions with reference to any land which does not form
part of a township shall—
(a) in the case of the transfer of such piece of land in respect of whi ch any
land tenure right referred to in Schedule 2 has been granted, be disposed of
in accordance with section 3 (1) (b); or
(b) in the case of any other transfer, be disposed of in accordance with the
Deeds Act.”4
[34] In my view, a further section of th e Act is of pivotal importance in adjudicating
this application. This section is Section 2 of the Act, which reads as follows:
“2. Conversion of land tenure rights mentioned in Schedule 1. –
(1) Any land t enure right mentioned in Schedule 1 and which was granted in
respect of –
(a) any erf or any other piece of land in a formalised township for whi ch a
township register was already opened at the commencement of th is Act, shall
at such commencement be converted into ownership;
(b) any erf or any other piece of land in a formalised township for which a
township register is opened after the commencement of this Ac t, shall at the
opening of the township register be converted into ownership;
4 This was the text of this section in 1991, the date of the commencement of the Act. There was also a
subsection 5 which was subsequently deleted in 1998, by way of an Amendment Act. Emphasis was
added.
(c) any piece of land which is surveyed under a provision of any law and does
not form pa rt 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 pers on who, according to the register o f land rights in
which that land tenure right was registered in terms of a pr ovision of any law,
was the holder of that land tenure right immediately before the conversion.”5
[35] Section 2 of the Act, therefore, has the effect of converting title holdership of
any type of title mentioned in Schedule 1 of the Act into full ownership by operation
of law at the various dates mentioned in Section 2.
[36] Schedule 1 to the Act stipulates as follows:
“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 (Proclamation No. R.293 of 1962).”
[37] Regulation 1 of Chapter 1 of Proclamation R.293 of 1962 reads as follows:
“ “deed of grant” means a deed of grant issued under these regulations or
deemed to have been issued thereunder in respect of an ownership unit in the
township.”
[38] Section 3(1) stipulates the duties of the Registrar of Deeds and amongst other
stipulates in subsection (p)(bis)
“(p)bis despite the repeal of the regulations, proclamations and by -laws made
under sections 25 (1), 30 (2) and 30A (1) of the Black Administration Act,
1927 (Act No. 38 of 1927), by the Repeal of the Black Administration Act and
Amendment of Certain Laws Act, 2005 (Act No. 28 of 2005)—
5 Emphasis added.
(i) continue to register any registrable transaction concerning a right
originally acquired in terms of or under the Black Administration Act, 1927, in
accordance with the legislation which created that right; and
(ii) exercise all the other powers and perform all the other duties vested in
or imposed upon a Chief Commissioner or registration officer by or under the
Black Administration Act, 1927;”
[39] Section 16 (D) of the Deeds Registries Act stipulates as follows:
[40] “16D. Registration of transfer of rights acquired in terms of or under Black
Administration Act, 1927. —
Despite the repeal of the Black Administration A ct, 1927 (Act No. 38 of 1927),
by the Repeal of the Black Administration Act and Amendment of Certain
Laws Act, 2005 (Act No. 28 of 2005), and despite the other provisions of this
Act and any other law, a right originally acquired in terms of or under the
Black Administration Act, 1927, shall be transfe rred in accordance with the
legislation which created that right”.
[41] The following seems to me to be clear against the backdrop of all the above:
• It is common cause between the parties that the Deceased became the
owner of the property by virtue of Deed of Grant nu mber TG138/1974
LB.
• That Deed of Grant was a Deed of Grant issued in terms of
Proclamation Number R293 of 1962, as is stipulated in Schedule 1 to
the Act.
• The Deed of Grant also pertained to a property which was at the very
least a proper ty falling within the definition of Section 2 (1) (c) and that
is, if that property is or was never situated in a township within a
township registered as defined in Section 46 (1) of the Deeds Act.6
6 There are very strong indications from the papers that the property relates to a property which is
situated in a formalised township as indicated in a t ownship register that was already open at the
• This fact brings the property and the ti tle of the Deceased within the
ambit of Section 2(1) of the Act, and that means that, as from the date
of the commencement of the Act, the title of the Deceased’s title was
converted into full ownership. As from the date such conversion, the
ownership of t he erf or the piece of land shall rest exclusively in the
person who, according to the register of land rights in which that land
tenure right was registered, shall forthwith be the owner of the land.
According to the wording of this section, this conversion t ook place by
operation of law and required no formal act of registration by the
Registrar of Deeds.7
• After the commencement of the Act and specifically against the
backdrop of Section 16D and Section 3(1) of the Registries Act, the
Registrar of Deeds bec ame obliged to register transactions of terms of
properties that were initially created by virtue of proclamation R293 in
accordance with such procedures.
• Annexure “ FA006” which is attached to the founding affidavit is a
document which carries an official document number called "BLD007”,
and it is entitled "Application for Transfer of Ownership*/Letting Unit* for
Residential Purposes."
• In terms of Section 6 of the Deeds Registries Act: As from the date of
the commencement of the Act, the transfer of any, right mentioned in
Schedule 1, shall take place in accordance with the Deeds Registries
Act.
[42] In my view, the implications of the above explanations are clear for the set of
facts before me: Despite the labyrinth of statutory stipulations that were created to
transition formerly Proclamation R293 properties and rights to full ownership, the
holders of such holders of rights enjoyed f ull and unrestricted ownership to such
properties, equal to full ownership rights applicable to all owners in terms of the law
of the land.
commencement of this Act; A township register is defined in the Act in section 1 as a township
commencement of this Act; A township register is defined in the Act in section 1 as a township
register, as referred to in section 46(1) of the Deeds Registries Act.
7 Although the registrar was obliged to amend its records in terms of Section 2 of the Act.
[43] In my view, one should specifically not be blinded by the fact that the Deeds
Registries Act continued to use the prescribed forms in terms of Proclamation R 293
to mean that the substantive legal position prior to the commencement of the Act still
applied. The continued use of these forms simply means that the forms and
procedure may be accepted by the Registrar of Deeds to register transactions, but
the substantive law applicable to such transactions and properties shall be equal to
all other rights holder in the country when it comes to property, and in particular,
immovable property.
[44] The above observatio n, when it comes to the set of facts before me, is
important, when one considers the relief sought by the applicant in its Notice of
Motion.
[45] In prayers numbers 2 - 6 of the Notice of Motion, the Applicant claims the
following:
“2. That the decision by the Applicant dated 9 September 2015, to process,
finalise and recommend the transfer of the property known as Erf 3[...],
Namakgale-B Township, Registration Division, LU, Limpopo Province,
measuring 1837 (ONE THOUSAND AND EIGHT HUNDRED AND THIRTY
SEVEN) square meters, held by Title Deed No TG 138/1974 LB (“the
Property”), is declared void ab initio.
3. That the decision by the second respondent dated 21st of September
2015, approving the Deed of Grant transfer to the property to the ninth
respondent is unlawful, unconstitutional and is reviewed and set aside.
4. That the second respondent is ordered to, within thirty (30) days of this
order, finalise the application for the transfer of the Deed of Grant between the
Late Jackson John Mogudi and the tenth and eleventh respondents.
5. Alternatively, to prayer 4 above, that the Second Respondent is
ordered to take a decision within thirty (30) days of the date of this order.
6. That the fourth respondent, and only if it is necessary, is ordered to
effect registration of the deed of grant to the tenth and eleventh respondents
effect registration of the deed of grant to the tenth and eleventh respondents
within thirty days after the decision by the second respondent in terms of
prayer 4 above, or, alternatively, prayer five (5).”
[46] It is clear, in my view, from the reading of the above prayers that the Applicant
approached this court on the basis, and labours under the impression that the
resolutions of the Applicant, dated 9 th and 21st September 2015, constute the causa
for the transfer of ownership from the Deceased and his surv iving spouse to the
Trust.
[47] If this line of argument is adopted, that would, of course, automatically mean
that should the resolutions taken be void ab initio, then no transfer could have taken
place.
[48] In my view, however, this approach is fundamentally flawed. After the
commencement of the Act, and within the context of Section 2(1) there has been no
fundamental difference in the way that owners of properties that were formerly
categorised as Proclamation R293 properties, would dispose of and transfer
properties to purchasers.
[49] Resolutions taken by the officials of the applicant and of the first Second
Respondent could play no role as a cause for the transfer of the Property from the
owners to the Trust.
[50] As was observed earlier, the cause of the transfer between the owners of the
trust is recorded in Annexure " FA006", as SALE, meaning that all the fun damental
legal requirements for a simple private law sale between the executor of the estate of
the deceased and the surviving spouse of the deceased.
[51] In terms of the facts before this court, the Executor of the Estate and the
surviving spouse of the Deceased gave transfer to the Chamakala Property Trust by
way of a normal transaction of sale, which then led to the transfer of the Property to
the Trust. In such a normal transaction of sale, the only fraud that could unravel the
transaction between transferor and transferee, within the facts, which are before the
court, is fraud perpetrated by one of the parties on the other.
[52] Such fraud is not described in the papers, nor is it relied upon.
[53] The form BLD007 was properly registered by the Re gistrar of Deeds, and a
number, TG 114181/2015, was given to this transaction.
[54] In my view, this Title Deed is valid, and the title deed can only be cancelled
within the context of Section 6 of the Deeds Registries Act.
[55] No relief is sought in th e notice of motion to cancel TG 114181/2015, nor are
there any facts before this court that would justify the granting of such an order.
[56] In my view, the only way to escape my conclusion set out above would be to
conclude somehow or another that the P roperty and the title of the Deceased to the
Property fell outside the ambit of Section 2 of the Act.
[57] Now, to be thorough, one has to take cognizance of the judgment of Rahube v
Rahube and Others8 (“Rahube”)in which it was ordered:
“1. The order of constitutional invalidity made by the High Court of South
Africa, Gauteng Division, Pretoria (High Court) on 26 September 2017 in
respect of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of
1991 is confirmed subject to the variations set out in paragraph 2.
2. The order of the High Court is varied to read:
“(a) Section 2(1) of the U pgrading 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
of 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.
8 (CCT319/17) [2018] ZACC 42; 2019 (1) BCLR 125 (CC); 2019 (2) SA 54 (CC) (30 October 2018).
(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 act ing in good
faith.
[58] The question is whether this transaction before the court is affected by the
order in Rahube.
[59] I do not think so.
[60] The declaration of invalidity of Section 2 of the Act shall only operate insofar
as it automatically converts rights to property into holders of rights of ownership in
violation of women’s rights in terms of section 9(1) of the Constitution.
[61] Since this aspect w as never canvassed in argument initially before court, nor
on the papers before the court, I wrote a practice directive to the respective parties to
request supplementary arguments from them regarding the applicability of the
Rahube judgment. Both parties indicated in their supplementary Heads of Argument
that the Rahube judgment does not apply in any way to this case.
[62] I understand their viewpoint in this regard to mean that there is no evidence of
any rights which a woman may have, which would have b een infringed by the
automatic conversion of the rights held in terms of the Deed of Grant by the
Deceased. I agree with their submissions in this regard.
[63] This means that Section 2 of the Act applies to the Property and the title that
the Deceased he ld to the Property. At the commencement of the Act, his title was
automatically and by operation of law immediately converted into full ownership. This
means that the Deceased and only the Deceased was entitled to alienate the
property. Whatever role offic ials of the Applicant and the Second Respondent had
under the previous dispensation did not apply anymore, as far as the substantive
requirements for the transfer of the Property was concerned.
[64] In any event, if this approach is wrong, then the Trust transaction is
safeguarded in my view, by the amended order of the High Court, and more
particularly paragraph 2(c), referred to above, in that the transaction was a
transaction in good faith and for value, as is referred to in the court order.
[65] The question that should further be considered is this: It is clear that by the
date of the passing of the deceased, he was married in community of property and
he left a surviving spouse. The question is, did this conversion not violate any of the
rights of the surviving spouse?
[66] I do not think so: Annexure “FA006” is, that is TG 114181/2015, makes it clear
that the transfer was given by both the Executor in the Estate of the Deceased and
the surviving spouse of the Deceased, with whom she was married in community of
property.
[67] This means that the surviving spouse became a joint owner of the property by
operation of law and would have been entitled to an endorsement in terms of section
17(4) of the Deeds Registries Act, reflecting such a fact in the records of the Deeds
Registries.
[68] As such, the surviving s pouse would have enjoyed full protection of Section
15 (2)(a) of the Matrimonial Property Act, 1984 (Act 88 of 1984) stating that any
immovable property of the joint estate can only be alienated with the consent of the
spouse with whom a seller is married in community of property.
[69] The surviving spouse did give the necessary consent for the Trust transaction:
She is a joint transferee of the property, as is evidenced by Annexure “FA006."
[70] In my view, the remedies for Mojapelo’s could be the application of the
doctrine of notice a nd the principles applicable to double sales. There is, however,
no facts before this court to make an order on this basis.
[71] To begin with, there is no indication that Mojapelo’s bought the property with
knowledge of the previous transaction, which the Applicant allege existed.
[72] Furthermore, in my view, there is not even evidenc e before the court that the
Deceased did in fact enter into a transaction of sale with the Mojapelos, with the
consent of his wife 9, with whom he was married in community of property, as is
required by Section 15(2) of the Matrimonial Property Act. The entire focus of the
application of this application is the alleged fraudulent conduct of officials of the
Applicant and the Second when it came to the Trust transaction.
[73] The Mojapelo’s could furthermore consider claiming restitution, had they paid
any consideration for the Property, or perhaps a claim for damages, against those
that misled them into believing that they took care of the transfer of the Property from
the Deceased to themselves. There are no facts before the court to draw any
conclusion as to what the appropriate remedy for the Mojapelo’s could be.
[74] I also wish to make a remark regarding the alleged fraudulent conduct of the
officials of the Applicant.
[75] As is stated in Nedperm Bank Ltd v Verbri Projects CC10 (Nedperm)
“At the outset one has to observe that it is trite that fraud is a most serious
matter and the type of allegation which is not lightly made and which is not
easily established. What is important is that a factual basis must be laid for an
allegation of fraud, and it is not sufficient, particularly in an affidavit resisting
summary judgment, mere ly to put up speculative propositions or to raise
submissions or to advance arguments on probabilities which might indicate a
fraud.”11
9 It is, of course, possible that at that stage, the deceased was not married to the person who is
eventually indicated as his surviving spouse in his estate. Even if that is so, one would have expected
the papers to deal explicitly with this issue.
10 1993 (3) SA 214 (W) at 220B..
the papers to deal explicitly with this issue.
10 1993 (3) SA 214 (W) at 220B..
11 Emphasis added.
[76] In my view, the allegations of fraud and the basis on which the Applicant
requests this court to find that there was fraud on the part of the officials of the
Applicant, do not meet the evidential standard as articulated in Nedperm. In my view,
the Applicant did no more than raise speculative propositions and rais ed
submissions to advance arguments on probabilities which might indicate fraud. I do
not elaborate on these aspects any further, in view of the conclusions that I reached,
and which are set out above.
[77] In my view, therefore, this application must fail.
[78] Considering the scale of fees to counsel as contemplated in Uniform Rule
67A(3)(a), this Court is satisfied that, having regard to the complexity of the matter,
the extent of the record, the importance that the matter has to the Applicant and
Respondents, that costs to counsel on Scale C is warranted
The court orders as follows:
(a) The application is dismissed.
(b) The Applicant is ordered to pay the costs of the Respondents, and the
costs of counsel shall be taxed on scale C, as is contemplated in Rule
67A(3)(a).
G J DIAMOND
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANT : Adv. J A Motepe SC
: Adv T A Modisenyane
INSTRUCTED BY : MABOKU MANGENA ATTORNEYS INC
admin@mmattorneys.co.za
FOR THE RESPONDENT : Adv F Marx
INSTRUCTED BY : COETZEE & VAN DER MERWE
: hoedspruit@coetzeevdmerwe.co.za
DATE OF HEARING : 27 MARCH 2025.
DATE OF JUDGMENT : 3 NOVEMBER 2025.
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time for hand -down of the judg ment is
deemed to be 3 NOVEMBER 2025.