SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: A291/2024
High Court Case No: 29560/2021
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED:
DATE: 4 DECEMBER 2025
SIGNATURE
In the matter between:
SIPHO NOAH MTHETHWA First Appellant
SYLVIA SIZIZWE MTHETHWA Second Appellant
and
MAILULA ALBERT ATTE OBED Respondent
In re:
MAILULA ALBERT ATTE OBED Applicant
and
NATIONAL HOUSING FINANCE CORPORATION (PTY) LTD First Respondent
NU-WAY HOUSING FINANCE DEVELOPMENTS (PTY) LTD Second Respondent
HLANO HOUSING SOLUTIONS (PTY) LTD
(PREVIOUSLY KNOWN AS
KHAYALETHU HOME LOANS (PTY) LTD)
Third Respondent
PIERE ANDRÉ BRUYNS Fourth Respondent
SONJA BRUYNS Fifth Respondent
SIPHO NOAH MTHETHWA Sixth Respondent
SYLVIA SIZIZWE MTHETHWA Seventh Respondent
REGISTRAR OF DEEDS Eighth Respondent
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Ninth Respondent
THE MINISTER OF HUMAN SETTLEMENT
(GAUTENG PROVINCE)
Tenth Respondent
This judgment is prepared and authored by the Judge whose name is reflected as such
and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 4thDecember 2025.
JUDGMENT
RETIEF J (Leso AJ and Terblanche AJ concurring)
INTRODUCTION
[1] This judgment has been one of the hardest judgments to pen. The reason
for this, will become apparent to the reader in due course. However, what should
ring true, when you do read it, is that hard cases make bad law.
[2] To commence then, on the 10 February 2023, Mnyovu AJ [the Court a quo]
in this Division granted declaratory relief [the order], ostensibly in favour of Mr
Mailula, the respondent in this appeal [the respondent], concerning his interest in a
property known as erf number 2[...], extension 4, Mamelodi Township J.R.,
Gauteng Province [the property ]. The property was part of several erven
earmarked for a low cost housing scheme which , at the material time, was held
under leasehold in favour of the South African Housing Trust Ltd [SAHT].
[3] In 201 5, Mr and Mrs Mthethwa, the appellants in this appeal [the
appellants], and unbeknown to the respondent, bought the property from private
sellers, Mr and Mrs Bruyns [the Bruyns]. The appellants, now the registered title
holders of the property by virtue of title deed T22469/2015 successfully obtained
an eviction order in this Division in 2019 to evict the respondent from the property
he lived in for almost 30(thirty) years . The eviction order is presently the subject
matter of an appeal serving before the Constitutional Court [CC].
[4] The respondent to secure his right of tenure and to protect his rights in
terms of the section 26 of the Constitution in respect of the property, brought the
successful application [main application] which served before the Court a quo, the
subject matter of this appeal.
[5] The appellants and the National Housing Finance Corporation (Pty) Ltd
[NHFC], the first respondent in th e main application before the Court a quo ,
applied for leave to appeal to the Full Court of th is Division alternatively , to the
Supreme Court of Appeal [SCA]. Leave was refused.
[6] The appellants then petitioned the SCA for leave and, on the 8 October
2024 the SCA granted them leave appeal to the Full Court of this Division. With
leave, this Court is therefore cloaked with the necessary jurisdiction to hear the
appeal on the grounds brought by the appellants.
[7] The same cannot be said for NHFC who, without petitioning the SCA simply
served a notice of appeal after the fact in November 2024. The NHFC assumed
that they could take this procedural step , as of right , without leave. In this way ,
NHFC was hoping to simply come in through the back door when the front door
was open to them all the time, they simply had to follow due procedure .1 In
consequence, the NHFC was not formally joined as appellants in this appeal. Both
the appellants and the respondent , at the date of hearing, objected to this
procedural attempt taken by NHFC . This Court upheld the ir objections and the
appeal which served before this Court remained that of the appellants.
[8] However, it was not only NHFC who sought to take procedural advantage
without leave, but the respondent too. The respondent without leave and without
filing a cross -appeal, attempt to widen the ambit of the issues on appeal by
seeking a variation of the order granted handed down by the Court a quo.
VARIATION OF THE COURT A QUO’S ORDER, ABSENT LODGING A CROSS-
APPEAL
[9] The respondent without leave and lodging a cross -appeal2 now seeks to
vary the Court a quo’s order contending that an appeal Court is entitled and
empowered to exercise a discretion by virtue of subsection 19(d)3 of the Superior
1 Nabolisa v S [2013] ZACC 17; 2013 (8) BCLR 964 (CC), paras 67, 74 and 76.
2 Minister of Police v Nontsele (547/2022) [2024] ZASCA 137 (11 October 2024);
Monyepao v Ledwaba 2020 JDR 0875 (SCA) at par [6] the SCA held:
“…..whatever the subject -matter of the proposed cross -appeal, leave to cross -appeal is
“…..whatever the subject -matter of the proposed cross -appeal, leave to cross -appeal is
necessary because the rules relating to appeals apply mutatis mutandis to cross -appeals.”
3 Section 19 of the Superior Courts Act states that:
“19. The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in
addition to any power as may specifically be provided for in any other law-
(a)-(c) ....
Courts Act, 10 of 2013 [Superior Act] to do so. The respondent’s Counsel argued
that although the Court a quo granted the order in his clients favour , from the
wording of the order it was ineffective. The respondent’s Counsel advanced that
the variation sought was simply to give effect to what already had been ordered by
the Court a quo and was therefore not a substantive variation . In consequence ,
the argument was that the common law rule prohibition of reformatio in peius, that
a judgment or order cannot be varied on appeal to the appellant’s prejudice,
absent a cross appeal, would not be disturbed as the judgment against the
appellant granted by the Court a quo would not substantively be altered just, made
clear.4
[10] In support of this proposition t he respondent’s Counsel invited this Court to
consider the Full Court judgment in the Octagon5 matter and, furthermore in
developing his argument he, in written argument , made reference to the premise
upon which the unsuccessful respondents in the Full Court in the B-Sure matter
relied.6 The Full Court in B-Sure stated that the principle in the Octagon7 matter
was no authority for the proposition that an appeal Court has jurisdiction to grant a
respondent substantive relief to vary an order absent a valid cross -appeal. In
coming to th is finding the Court in the B-Sure matter, inter alia, reasoned at
paragraph [31] that:8
“31.1 Octagon did not concern the jurisdictional requirements for an
appeal or cross -appeal. The Full Court did not deal with sections
16 or 17 of the Act or even consider the authorities in relation
thereto, namely Goodridge v Botha (1954 (2) SA 540 (AD) at
544 and Gentiruco 1972 (1) SA 589 - own emphasis);
(d) confirm, amend or set aside the decision, which is the subject of the appeal
and, render any decision which the circumstances may require.”
4 Von Steinaecker v Kniesl (1898) 19 NLR 153.
5 Octagon Chartered Accountants v Additional Magistrate, Johannesburg, and Others
5 Octagon Chartered Accountants v Additional Magistrate, Johannesburg, and Others
(2018) 940 SA 498 (GJ).
6 B-Sure Africa Insurance Brokers (Pty) Ltd and Others v Dotsure Insurance Company
Limited and Another (A2023/041879) [2024] ZAGPJHC 958 (24 September 2024).
7 See footnote 5.
8 Ibid, par 31.
31.2 Octagon was about the power of an appeal court to vary
a procedural order where a failure to do so would give rise to
impractical and untenable results. In this regard, there can be no
doubt that t he High Court has such power to regulate
its procedures in the interests of the proper administration of
justice; and
31.3 The question in the present appeal before this Court is whether
this Court can grant a substantive order where a cross-appeal for
such relief was not made. The erstwhile Appellate Division and the
SCA have, since Goodrich and Gentiruco9, consistently found this
to be impossible on the basis that the jurisdictional requirements
relating to appeals also apply to cross-appeals.”10
[11] The relevance of the B-Sure matter is unclear as the respondent’s Counsel
did not contend that the variation sought was procedural of nature but, rather that
absent variation the order itself could not effectively be enforced. In other words a
recognised exception to the general prohibition against reformatio in peius .11 To
determine whether this Court is jurisdictionally cloaked to entertain the variation on
the basis of an exception, both the order and the variation sought by the
respondent requires consideration.
[12] The order of the Court a quo simply reads:
“[29] I grant the following order:
9 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at 607G.608G ; Goodrich v
Botha 1954 (2) SA 540 (AD) at 544.
10 Own emphasis – “Setsedi v Mamelodi Town Council and Others [1991] ZASCA
148; 1992 (1) SA 483 (AD) at 494A; National Union of Metalworkers of South Africa
(NUMSA) and Others v Henred Fruehauf Trailers (Pty) Ltd [1994] ZASCA 153 ; 1995 (4)
SA 456 (AD) at 475F -G; Langa CJ and Others v Hlope 2009 (4) SA 382 (SCA) at
paragraph [30].”
11 See footnote 5 at para 24 -28 and the authorities referenced therein and as set out in
footnote 9.
29.1 The application for declaratory order is granted as per relief
sought (own emphasis).
29.2 No order to costs.”
[the order]
[13] It is common cause that the respondent did not amend his notice of motion.
In his notice of motion the respondent sought no less that 11(eleven) prayers
excluding costs. That nature of the prayers were final. Less than half of the
prayers sought, 5(five) of them in fact, dealt with declaratory relief. The respondent
sought to declare the sale and disposal of the property to varies parties invalid, he
sought to declare that his Constitution al rights in terms of section 26 had been
infringed and, he sought to declare the decision by certain government agencies,
who allowed the transfer of the property and other erven earmarked for low cost
housing, as unjust administrative action s. With the remaining 6(six) prayers the
respondent sought compelling orders to give effect to the declaratory relief where
applicable. The respondent’s ultimate goal was to ensure that the property was
registered in his name.
[14] The respondent’s relief was poorly crafted and wh atever difficulty arises
from that, was further compound by the Court a quo who saw fit to capture the
relief without precision. In paragraph [1] of the judgment the Court a quo identified
the following declaratory relief:
“[1] The applicant seeks a declaratory order that the sale of erf/stand
2[...], extension 4, M[...] Street, Mamelodi East, Gauteng Province
(“the property”) and the disposal thereof between the first and the
second respondents, and the second respondent to the fourth and
fifth respondents, and by the fourth and the fifth respondents to the
sixth and sev enth respondents be declared invalid and unlawful and
set aside.”
[15] Paragraph [1] simply paraphrases prayers 1 to 3 of the notice of motion.
This was done w ithout consideration of the remaining prayers dealing with
declaratory relief. This is probably why t he Court a quo failed to engage with this
relief. Then, in paragraph [2] of the judgment the Court a quo, lists the compelling
relief. The compelling relief is introduced by stating : “ [2] The applicant (the
respondent- own emphasis) further seeks (own emp hasis) orders that:-“ and , in
sub-paragraphs i)-vii) the further relief is listed.
[16] In this way the Court a quo made a distinction between the declaratory
relief described in paragraph [1] on the one hand and the remaining further
compelling relief sought in paragraph [2] on the other hand. This much is clear
from the construction and content of the paragraphs.
[17] In dealing with the paraphrased declaratory relief in paragraph [1] the Court
a quo applied section 21(1)(c) of the Superior Act [section 21] and in applying the
first test of the two stage section 21 enquiry it found in paragraph [27] of the
judgment that:
“27[e] Based on the evidence before this court I am satisfied that the
applicant has a legally recognised interest in an existing, future and
contingent right, an interest akin to the interest that the third, ninth
and tenth respondents (Hlano Housing solutions ( Pty) Ltd, City of
Tshwane and Department of Human Settlement (Gauteng
Province)-own emphasis) have to intervene in the High Court
proceedings.”
and,
“The applicant has a direct and substantial interest in the subject
matter.”
[18] Without commenting o n this finding, but considering the judgment as a
whole, this finding was confined to the declaratory relief paraphrased in paragraph
[1] of the judgment. The Court a quo thereafter failed to engage with the remaining
prayers, prayers 5 and 7 a nd all the prayers dealing with the compelling relief as
set in in paragraph [2].
[19] Notwithstanding, what remains apparent is that the respondent failed in his
prayers to specifically seek to be declared the owner of the property and the Court
a quo found that he had an interest in a right to the subject matter. Yet, the
variation sought by the respondent reads as follows:
“1. The sale of agreement dated the 14 November 2012 in respect of Erf /
Stand 2[...], Extension 4, M[...] Street, Mamelodi East , Gauteng
Province (“the property”) and the disposal thereof between the first
respondent and the fourth and fifth respondents is declared invalid and
unlawful and is set aside.
2. The sale agreement dated the 13 October 2014 in respect of Erf /
Stand 2[...], Extension 4, M[...] Street, Mamelodi East, Gauteng
Province and the disposal thereof between the fourth and fifth
respondents and the sixth and seventh respondents is declared invalid
and unlawful and set aside.
3. The applicant (the respondent – own emphasis) is declared the lawful
owner of Erf / Stand 2[...], Extension 4, M[...] Street, Mamelodi East,
Gauteng Province.
4. The Deed of Transfer with number T000022469/2015 dated 1 April
2015 in respect of Erf / Stand 2[...], Extension 4, M[...] Street,
Mamelodi East, Gauteng Province is hereby cancelled.
5. The Registrar of Deeds is directed to take all steps necessary and to
do all such things and make such endorsements as may be required
to give effect to paragraph 3 hereof.
6. That the first, second, fourth, fifth, sixth a nd seventh respondents be
ordered to pay the costs of the application jointly and severally on
attorney and own client scale.”
[variation order]
[20] It is clear from the variation order that the respondent does not simply seek
to make the order , as granted clear but, to introduce substantive changes without
a cross -appeal. It is also important to point out that t he variation order also
includes a punitive cost order in circumstances when the Court a quo failed to
grant costs. The variation order does not constitute an exception to the common
law rule.
[21] This Court will not entertain the respondents variation order as argued for
want of jurisdiction on appeal.
[22] Now to the matter at hand. This matter cries out for a semblance of clarity.
Furthermore, due to the fact that the relevant background facts commenced as far
back as 19 91 and that the Court a quo failed to dea l with all the evidence and
discuss the all the issues, this Court will consider it before dealing the appellants’
grounds of appeal. In that way too the appellants grounds will be clearer.
BACKGROUND FACTS AND DISCUSSION
[23] The background facts are complex, they involve the interplay between
many parties who were directly involved in low cost housing schemes since 1991
and effect the security of rights to housing in terms of section 26 of the
Constitution of vulnerable people, both the appellants and the respondent.
[24] During 1986, the government and the private sector agreed that South
Africa was faced, amongst others with two key crises that needed to be addressed
urgently, namely the lack of affordable housing with ownership for the lower
income earning segment of the market and, unemployment.
[25] It was therefore decided that a joint venture vehicle should be created
between government and the private sector in terms of which employment
opportunities would be created through th e facilitation and funding of housing
directed at the lower income earning segment of the market. In 1986 SAHT, the
joint venture vehicle was established. Its mission was to: “ Promote and facilitate
the provision of affordable shelter and security of tenu re (own emphasis) to the
lower income earning communities of South Africa in a way which will maximise
job creation.” SAHT itself was the finance vehicle through which government and
the private sector funding was raised. SAHT was not a wholly State owned
enterprise in 1988.
[26] In 1988, Khayalethu Home Loans, was incorporated as a wholly owned
subsidiary of SAHT which provided retail home loan finance to low income
communities. Khayalethu Home Loans is now known and cited as Hlano Housing
Solutions (Pty) Ltd, the third respondent in the main application [Hlano] . Nu-Way
Housing Development (Pty) Ltd, the second respondent in the main application
[Nu-Way] was incorporated in 1994 and facilitated and managed property
development.
[27] On the 10 th of January 1991 SAHT acquired rights to certain pocket s of
undeveloped erven owned by the Mamelodi Council by virtue of the registration of
a grant of leasehold for a period of 99 years in terms of section (2)(1)(a)(i) in terms
of the Black Commu nities Development Act 4 of 1984. The leasehold in favour of
SAHTS was registered through a certificate of grant of leasehold held under
TL1849/1991 [ mother title deed]. The property formed part of the pocket of
leasehold erven and is described in the mother title deed.
[28] On the 23 June 1991 the respondent concluded an agreement with
Lapalaka CC, a construction company and the developer agent. In terms of the
agreement Lapalaka CC undertook to build a house for the respondent on the
agreement Lapalaka CC undertook to build a house for the respondent on the
property. The agreed cons truction cost was R 22 116.00. The respondent
approached Khayalethu for finance.
[29] According to the written loan application form provided by Hlano in their
papers, the respondent and a Ms Diana Nhlape’s jointly applied for finance on the
28 June 1991. The application for finance included a request for the loan amount
to purchase of the property, a vacant stand at the time and, for the costs
associated with the construction of the house. Hlano alleges that the application
for finance was done on the strengt h of, inter alia, a sale agreement which was
concluded between the respondent and SAHT. A copy of the agreement was not
attached to Hlano’s papers however, the fact that a written sale agreement was
concluded was confirmed by their attorneys in writing in a letter dated 10 May
2021, who, with reference to the property stated, that:
“ 3. Our client (Hlano -own emphasis) provided financing for this
transaction (acquisition of the property and construction of a house
by the respondent -own emphasis) and factually paid the purchase
price to SAHT (own-emphasis).
4. For reasons which we cannot e xplain, SAHT never transferred the
property to your client and in fact, some years later sold the property
to Nu Way Housing Development (Pty) Ltd (Nu Way).
4. SAHT was disestablished on 1 September 2002 with Act 16, 2002
and all assets of SAHT was taken over by the National Husing
Finance Corporation (“NHFC”) from that date
5. The property remained registered in the name of SAHT and was sold
again in 2015 by Nu Way with the assistance of the NHFC.”.
[30] Shortly thereafter the Upgrading Tenure Act 112 of 199112 [Tenure Act]
came into operation on the 5 th of July 1991. The Tenure Act was part of a scheme
of legislation that was enacted to redress the injustices caused by the colonial and
apartheid regimes. It was to provide for the conversion into full ownership of the
12 The Upgrade and Tenure Amendment Act of 2021, upgrades the 1991 Act to bring in in line
with the Constitutional Court’s ruling in Radebe v Radebe [2018] ZACC 42.
more tenuous land rights which had been granted duri ng the apartheid era to
South Africans. Land reform was one of the key focus areas of the scheme,
because the schematic deprivation of the South African majority’s right in land and
property was a main feature of the apartheid system. 13 When the Ten ure Rights
Act was promulgated, it meant that all registered leaseholds were in terms of
section 2(1) automatically, by the operation if law, converted into ownership. In
other words, no formal transfer had to be affected by deed, but the Registrar of
Deeds could endorse a leasehold title deed, converting leasehold into freehold
(ownership).
[31] After its promulgation and on the 22 July 1991, Hlano approved the loan
application and duly informed the respondent on the 29 July 1991 by way of a
letter of confirmation o f grant of loan. In the confirmation letter, Khayalethu
confirmed that: “We have the pleasure in confirming that a loan for the amount of
R 28,638.50 secured by a first mortgage bond over stand No. 2[...] MAMAELODI,
has been granted to you (the respondent-own emphasis) for the purchase of the
stand and house.”
[32] The terms of the loan were set out in the letter of confirmation, and it was
clear that the respondent, over the bond period of 20 years, would pay Khayalethu
240 monthly instalments. The total loan was referred to as ‘ the bonded amount’ .
The bonded amount included the purchase price of the property for R 6,600.00 in
favour of SAHT and all legal and administrative costs to the register the property
into the respondent’s name, to register a first mort gage bond over the property,
leasehold and deed of sale charges. The deed of sale and bond administrative
costs according to the approved loan application was raised for ‘BVZ’. BVZ
according to Hlano’s papers were their attorneys of record at the time. On the
admitted facts, the respondent was a Khayalethu client.
[33] Flowing from this letter the respondent in his founding papers alleges that
[33] Flowing from this letter the respondent in his founding papers alleges that
he, on the 29th of July 1991 entered into an agreement of sale with the NHFC, Nu -
13 Western Cape Provincial Government: In Re DVB Behuising (Pty) Ltd v North West
Provincial Government [2000] ZACC 2: 2001 (1) SA 500 (CC); 2000 (4) BCLR 347 (CC)
DVB Behuising at par 8.
Way and Hlano (previously Khayalethu) and that it was an implied term that
contracting with any one of them is an agreement with all of them. This allegation
is not understood in that, at the material tim e, Nu-Way had not been incorporated
and NHFC had not acquired any rights to the property from SAHT yet.
[34] However, the fact that the respondent entered into a written agreement of
sale involving the property with SAHT which he paid for on the strength of which a
loan was granted , is supported on the facts by Hlano. At the material time,
Khayalethu charged the respondent for the drafting of the agreement and granted
the respondent a loan on the strength of an agreed purchase price. SAHT, Hlano
and the respon dent are the only parties , unlike NHFC or Nu -way who were not
party to the negotiation in 1991 . The refore the relevant part y, Hlano, with
knowledge, does not refute the existence of an agreement and the essentialia of
the underlying agreement between SAHT and the respondent nor and intention to
transfer the property it held in the name of the respondent.
[35] Returning to the loan confirmation, Hlano stated that on the 30 th July 1991
BVZ stated “ I confirm registrability of the documentation provided for the above
client and stand number. The documentation received is in order and enables us
to prepare the necessary documentation for submission to the Deeds Office for
registration of a bond in accordance with the instruction.”
[36] It is common cause that the prop erty, for some unexplained reason, was
not registered into the respondent’s name nor was a first mortgage bond
registered over the property to secure Khayalethu’s financial interest. The NHFC
was not involved in 1991 and Hlano confirms that it paid SAHT the purchase price.
Be that as it may. i t is common cause that the respondent paid the full loan
amount to Hlano by the 28 May 2013.
[37] Almost a decade later and in July 1999, the government acquired all the
[37] Almost a decade later and in July 1999, the government acquired all the
ordinary shares in SAHT previously held by the pri vate sector as a means to
streamline the disposal process of its statutory disestablishment. In an information
memorandum dated in August 1999 by SAHTs it, inter alia, set out its disposal
asset plan. The memorandum was tendered into evidence by Hlano. In paragraph
2.3.2 thereof it was recorded that SAHT sold a number of stands to Khayalethu
clients in respect of which Khayalethu provided home loans and that such
properties need to be transferred to such clients by Khayalethu. SAHT undertook
to pay the arrear rates and taxes associated with such properties to facilitative the
transfers. No list identifying the clients nor which stands which formed part of the
properties SAHT sold to Khayalethu clients as per the memorandum.
[38] On the 26 November 1999 before SAHT’s disestablishment, Nu -Way and
SAHT entered into a sale of business agreement in which, inter alia, provision was
made for Nu-Way to dispose of erven direct from SAHT to purchasers, until SAHT
became disestablished. At this time and on the facts the property was not just a
vacant erf but a house funded by Hlano and paid for by the respondent.
[39] On the 1 st of September 2002 S AHT was statutorily disestablished and
ceased to exist and , all rights and assets of the SAHT and the administrative and
financial records vested with the NHFC now in terms of section 3(6)(b) of the
Housing Act 107 of 1977. The State took over the liabilities.
[40] On the 12 May 2003 the Chief Executive of NHFC, Mr SS Moraba
appointed Mr LC Serfontein to enable SAHT/NHFC to transfer any fixed property
registered in the name of SAHT to NHFC or to Nu -Way and/or to transfer fixed
properties directly to buyers to whom properties were sold in terms of a deed of
sale entered into at that date, May 2003. No power of attorney was extended to Mr
LC Serfontein on the papers to authorise the transfer from SAHT or NHFC to
purchasers, other than those as at 12 May 2003.
[41] The property was not transferred to the respondent as a resul t of this
resolution. Instead, a decade later, and on the 14 January 2013 , and argued by
the respondent without authority, Mr L C Serfontein, acting on behalf of the NHFC
the respondent without authority, Mr L C Serfontein, acting on behalf of the NHFC
signed a power of attorney authorising Anton Bekker and/or Jacque Pretorius
and/or Phillipus Carel Prinsloo to pass transfer of the property to Pierre and Sonja
Bruyns [the Bruyns] on the strength of an underlying deed of sale dated 14
November 2012 for a purchase price of R 30 000.00. The transfer of the property,
de facto , only took place some years later in April 2015 whilst the property , as
described in the deed, was still held in the mother title held under leasehold.
[42] That is why, the description of the property transfer to the B ruyns in
T22470/2015 read: “FIRST REGISTERED AND STILL HELD (own emphasis) BY
CERTIFICATE OF REGISTERED GRANT OF RIGHT OF LEASEHOLD
TL1849/91 WITH GENERAL PLAN SG NUMBER L723/1990 RELATING
THERETO”. From the evidence then, the property remained held under leasehold
TL 1849/91, albeit in April 2015.
[43] In July 2014 , Mahlanga attorneys acting for the respondent, contacted
Hlano. The exact request is unclear, but it related to the property and the
respondent’s ownership thereof. On the 15 September 2014, Hlano trying to
obtain clarification to be in a position to meaningfully respond to Mahlanga
attorneys, requested a meeting with Michael Cullen, from Nu -Way. The request
was not met favourably. Michael Cullen responded that a meeting would serve no
purpose and speaking for Nu -Way, stated that “ -that in terms of their purchase
agreement with SAHT they have the right to sell all such erven that they have sold,
are currently selling or will be selling into the future unless proven otherwise by
way of co ntrary agreements or deed searches implying otherwise .” Nu-Way did
not file papers in the main application.
[44] On the 13 October 2014, before the Bruyns took transfer they resold the
property to the appellants for R 290 000.00 , making a R 260 000.00 profit o ver 2
(two) years on an erf which was earmarked for low cost housing and which was
described as vacant . At the time of the conclusion of the sale agreement the
Bruyns were not in a position to give undisturbed possession as they still needed
to acquire the possession of the property via transfer from NHFC. The Bruyns did
not file papers in the main application.
[45] Meanwhile on the 29 October 2014, in a memorandum authored by Indrani
[45] Meanwhile on the 29 October 2014, in a memorandum authored by Indrani
Naidoo of Hlano, in preparation for a meeting with NHFC, she recorded the
following history relating to the property in respect of the respondent’s claim and
raised queries:
“Scenario 2 (a): AA Mailula
• KHL active account. Account paid up . Hlano provided paid up letter.
MB (mortgage bond -own emphasis) not registered as transfer to
customer did not take place. Deeds print out reflects Title holder as
NHFC (was SAHT). We cannot effect transfer of this property. Cost
implication (own emphasis).
o Note: Title held by SAHT which should have been transferred to
KHL in order for KHL to effect transfer to customer. Customer
wants his title deed. Bond was not registered. No fault of
customer. NOT ONSOLD.(own emphasis)”
[46] It appears that Hlano accepted that it should have affected the transfer, the
basis for this was not fully explained by Hlano. Yet, this obligation was raised in
the August 1999 14 memorandum by SAHT, was referred to. Notwithstanding
whose obligation it was, transfer to the resp ondent did not occur and Hlano
thought it too costly to do so.
[47] On the 6 November 2014, the Bruyns signed a power of attorney to Nakkie
Du Toit and Nathan Jared Len authorising them to transfer the property to the
appellants. The reference to the registered deed from which the transfer was to be
effected was stated as “HELD BY DEE D OF TRANSFER NUMBER ABOUT TO
BE REGISTERED.” This appears to suggests that the property was not to be
transferred directly from the mother title deed.
[48] From the papers, a back to back registration process was envisaged to
ensure that the Bruyns acquired a right of ownership to the property before the
transfer to the appellants took place. All of this was to happen on the 1 April 2015.
14 See par [37].
[49] On the 1 April 2015, and from the docu mentary evidence forming part of the
record, the chronological registration sequence chain did not occur as intended.
According to the unique numbers assigned to each deed during the registration
process deed T224 69/2015 by its numbered reference was regis tered before
T22470/2015. In other words, at the moment of transfer from the Bruyns to the
appellants, the Bruyns appear not to have acquired ownership of the property. The
legal principle of nemo dat quod non habet comes to mind, namely that no one
can gi ve what they do not have. The numbered sequence does not follow the
sequence of the relative causes as provided for in section 14 of the Deeds
Registry Act 47 of 1937.15
[50] Furthermore, in sequence then, at the time the appellants took registration,
the property was described in T22469/2015 as:
“FIRST REGISTERED BY CERTIFICATE OF REGISTERED GRANT OF
LEASEHOLD NUMBER TL 184 9/1991 WITH GENERAL PLAN SG
NUMBER L723/1990 RELATING THERETO AND HELD BY DEED OF
TRANSFER T……”.
[51] “T………”, is reference to t he registered title the Bruyns’ were supposed to
acquire as foreshadowed in the 6 November 2014 power of attorney setting out
the manner in which attorney Nakkie Du Toit and Nathan Jared Len were
empowered to pass transfer. Ex facie the description of T22469/ 2015 provided in
the record, it does not appear as if the property was registered out of the mother
title deed before transfer was passed as , the space referencing the new title deed
was left blank.
[52] The consequences of an incorrect registration sequence or the possibility of
a missing link in the transfer chain from the Bruyns to the appellants was not a
15 Section 14 of the Deeds Registry Act 47 of 1937 provides the practices and procedures for
registration of deeds, including providing that registration of transfers of land must follow the
sequence of their relative cause.
point raised nor argued before the Court a quo nor, raised by this Court at the
hearing of the appeal.
[53] It was however identified by this Court when it had to consider the veracity
of the trigger event which the respondent alleged constituted a purported fraud
consequent upon an allegation of lack of authority by Mr LC Serfontein to sign the
power to pass transfer the prop erty to the Bruyns. The nub of the argument, that
Mr LC Serfontein, at the material time, was not provided the necessary authority in
that the reach of the by NHFC did not cater for transfer after 13 May 2003.
[54] Furthermore, the evidence suggested that NHFC according to their letter
dated 10 May 2021 did not consent to any transfer of the property to “ any person”.
This would include the appellants and the Bruyns. This letter too appears to be
confirmed by Ms McLeod of NHFC on the 13 May 2021when she reaffirmed that
NHFC did not consent to the transfer of the property, this included the transfers in
2015. It is common cause that the property in 2015 was still registered in the name
of NHFC notwithstanding the fact that that the property may have formed part of
the purchase agreement between SAHT and Nu -Way. The Court a quo accepted
the undisputed evidence of lack of authority point raised by the respondent on the
papers when it exercised its section 21 discretion granting the declaratory order
per relief. This is clear from its reasoning set out in the judgment.
[55] Flowing from all of this , th is Court considered the sequence of events
leading up to the registration of the property in the name of the appellants . The
appellants too bemoaned the Court a quo’s consideration of the weight of their
personal rights to the property . Faced with the evidence and lack of argument on
the point, t he parties were notified of the further points this Court required
submissions on and, both parties were afforded an opportunity to make yet further
submissions on and, both parties were afforded an opportunity to make yet further
submissions, including submissions dealing with this Court’s wide discretion in
terms of section 19(d) of the Superior Act when dealing wit h the appeal before it .
Section 19(d) as dealt with in Occupiers of Saratoga Avenue ,16and as applied by
16 Footnote 5 para [33] with reference to Toubie v S [2012] ZASCA 133 (SCA 655/11; 27
September 2012) para 10. See also Erasmus Superior Court Practice vol 1 2 ed at pA2 -75:
‘The power conferred upon a court of appeal by the provisions of this paragraph are not
the CC in the Vodacom Makate matter came to mind when the Court stated that:
“In a successful appeal, ‘the appellate court may make the order that the c ourt of
first instance should have made.’” In this way a fair hearing was considered in
terms of section 34 of the Constitution. Both parties in their further submissions
agreed that the title deeds were registered out of sequence although their
submissions relating to the consequences thereof differed.
[56] Of further interest , and as raised by the respondent, the property
description in both T22469/2015 and T22470/2015 is also incorrect. None of the
parties, for the exception of the respondent and Hlano , were, at the material time,
aware that the property was not a vacant stand to be sold but an erf with a
dwelling. This too is supported by the appellants’ evidence who thought they were
buying a piece of vacant land with their pension , for investment purposes. This is
why their attorney of record, Len Attorneys, who on their instruction, authored an
eviction notice in May 2015 described the property as vacant erf 2[...] Mamelodi
Extension 4, perpetuating the error.
[57] The appellants never dealt with how they met the Bruyns and if they ever
viewed the property nor, how the fundamental error ex facie the description of the
property T22469/2015 occurred. The appellants thought they were buying vacant
land for investment purposes. This is completely contrary to the purpose, intent
and basis relied on by the respondent who according to Hlano purchased it as part
of a low cost housing scheme intended to affordable shelter and security of tenure
to the lower income earning communities of South Africa. The property was sold to
the appellants a decade ago as a vacant erf for a purchase price of R 290 000.00,
an amount which surely does not represent shelter and security of tenure in favour
of lower income earning communities , as intended. SAHT’s mission to promote
of lower income earning communities , as intended. SAHT’s mission to promote
and facilitate the provision of affordable shelter and security of tenure to the lower
income earning communities of South Africa.
limited to matters arising directly from the ap peal itself: a court of appeal has a wide powers
to render a decision which the circumstances of a particular case might require’ and
Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality and
Another [2012] ZACC 9: 2012 (9) BCLR 951 (CC), par 7. See also Vodacom (Pty) Ltd v
Makate and Another (CCT51/24)[2025] ZACC 13; 2025 (10) BCLR 1174 (CC).
[58] The Registrar of deeds prepared a report for the Court a quo but failed to
deal with these pertinent issues. This could have been because due to the enquiry
posed to the Registrar of deeds. However the Court a quo’s attention was drawn
to section 6 of the Deeds Registries Act 47 of 1937:
“6(1) Save as is otherwise provided in this Act or any other law no
registered deed of grant, deed of transfer, certificate of title or other
deed conferring or conveying title to land, or any real right in land
other than a mortgage bond, and no cession of any registered bond
not made as security, shall be cancelled by a registrar except upon
an order of Court.
(2) Upon the cancellation of any deed conferring or conveying title to
land or any real right in land other than a mortgage bond as
provided for in sub -section (1), the deed under which the land or
such real right in land was held immediately prior to the registration
of the deed which is cancelled, shall b e revived to the extent of
such cancellation, and the registrar shall cancel the relevant
endorsement thereon evidencing the registration of the cancelled
deed.”
[59] Lastly, the respondent’s Counsel in argument, for the first time, referred to
the respondent’ s 50% share in the property. No evidence appears from the
founding papers to support the contention. It has always been the respondent’s
case that he is the owner. The Court was not referred to the evidence by any co -
owner in support of such contention. No such new evidence served before the
Court by way of application or otherwise.
[60] Against this backdrop and discussion the appellants grounds of appeal are
considered.
GROUNDS OF APPEAL
[61] The appellants in written argument raise d summarised the grounds in four
categories. This was helpful as the grounds as raised in the notice were not
concise and did not comply fully with uniform rule 49 as such, were cumbersome.
The nub of the grounds traversed the complaints that the Court a quo granted
relief which was not supported on the papers, that the order is self -contradictory
and/or vague in certain material respects, that the Court a quo disregarded the
eviction order stemming from the appellants’ registered title to the property held
under T22 69/2015 and that the Court a quo simply accepted the respondent’s
explanation from the bar for his delay in bringing his application.
[62] This Court deals with each category.
Did the Court a quo grant relief which was not on the papers?
[63] The nub of argument centres around the meaning of prayer 1 “ declaratory
order granted as per relief sought .”, The appellants argue that if the order is
understood in context it means that both the relief per sub -paragraphs [1] and [2]
listed in the judgment were all granted. In developing this argument, the appellants
argue that relief sought in sub-paragraphs [2] vi and vii , which prayed for the
cancellation of T22469/2015 and, to direct the Director-General for the Department
of Housing to hold an enquiry in terms of section 2 of the Conversion of Certain
Rights into Leasehold Ownership Act 81 of 1988 [Leasehold Act] in order to
determine the true owner of the property , if read in context, was granted by the
Court a quo by incorporation. In consequence the appellants argue that such
relief was not sought by the respondent in his unamended notice of motion.
[64] This is an assumption and must therefore be considered in context. In
context the appellants are correct that the listed relief did not form part of the
prayers sought by the respondent. Notwithstanding, it does not automatically flow
prayers sought by the respondent. Notwithstanding, it does not automatically flow
that th ese prayers were granted by the Court a quo . This is so as previously
reasoned.17 If sub-paragraphs [2] vi and vii formed part of the compel relief listed
in paragraph [2] , which they do by their very nature, no matter how listed, then,
17 Paras [14-18].
absent the Court a quo engaging with the compelling relief, it cannot simply be
assumed nor is it log ic to assume that compelling prayers are declaratory relief by
incorporation. Therefore, any misdirection complained of by possible incorporation
cannot stand.
[65] As far as the appellants argument is expanded to bolster a misdirection that
sub-paragraph [2] vi, if incorporated , did not form part of the respondent’s
pleadings in that it directs the Registrar to cancel T22469/2015 and to cancel all
the rights of the Bruyns and the appellants by virtue of such aforesaid deed , this
too requires amplification.
[66] Although, the compel relief as discussed could not for m part of the
declaratory relief as reasoned, the respondent in prayers 1- 3 of his unamended
notice of motion, which by its nature is declaratory, does pray for the setting aside
of th e sale (the underlying agreements) and the disposal of (the delivery by
registered transfer) of the property to the appellants and, inter alia, the Bruyns.
[67] Delivery to the appellants of the property took place by the registration of
transfer of the property the appellants names by virtue of the registration of
T22469/2015. The declaratory relief was duly granted by the Court a quo and
logically, cancellation of the title deeds would give effect to the order.
[68] Furthermore the relief in prayers 1 to 3 are supported in the pleadings and
form part of the evidence in the founding papers in that the respondent relies on
the non-registration of the property into his name a nd the transfer to others as an
administrative error, a mistake, perpetrated by government agencies, SAHT,
NHFC and Nu -Way. In other words, SAHT, NHFC and Nu -Way lost sight of hi s
rights in the proverbial wash over time. Flowing from this error/mistake he seeks in
paragraphs 51 to 5 3 that both the sale and the transfer of the property to the
Bruyns and the appellants be declared invalid and cancelled. The appellants do
Bruyns and the appellants be declared invalid and cancelled. The appellants do
not attack the veracity of the cause of action merely that it was not pleaded.
[69] Thereafter, the respondent then havin g received further information which
accompanied Hlano’s answering affidavit he file d a supplementary affidavit. The
supplementary affidavit formed part of the record and Hlano’s evidence was not
challenged. Based on the undisputed lack of authority point to pass transfer to the
Bruyns and the consequences, the respondent based his cause of action in the
pleadings on a perpetrated fraud being committed. NHFC simply denied any error,
did not deal with the correspondence of the 10-13 May 2021 and simply reaffirmed
the respondent’s understanding of the May 2003 power of attorney. In other words
no explained denial of fraud, an acceptance of lack of consent.
[70] From the judgment it is clear that the Court a quo considered the fraudulent
cause of action, pronounced on it an applied it to tip the scale in the respondent’s
favour. No misdirection of fact is raised by the appellant upon which such
discretion was exercised.
[71] This ground as raised must fail.
Was the order self-contradictory and vague?
[72] Both parties agree that the order is vague and the mere fact that it requires
interpretation to give it context is testament to its it vagueness. One is not
expected to try an interpret an order. It must be clear and c oncise. The order is
not. The doctrine of effectiveness applies as this it ensures that orders are not
confusing and in consequence, can be obeyed. This is not the case.
[73] However, the vagueness is confined to its reach namely whether it
incorporates the compel relief or not. On a proper reading of the judgment and as
reasoned the reach is confined to the relief as listed in paragraph 1. The
appellants however, do not seek to give contex t to what the order should be. In
fact, their grounds move from the premise that it can be enforced and but should
not as certain prayers did not form part of the pleadings . The appellants simply
not as certain prayers did not form part of the pleadings . The appellants simply
move for the order to be set aside and to replace the order in the main application
as dismissal on the merits.
[74] The argument raised relating to certain reasoning of the Court a quo in the
judgment as being mutually destructive and self-contradictory does not take the
matter any further as one appeals the order a nd not the reasons. The reach of the
order is not mutually destructive as reasoned.
[75] The appellants partially succeed in that the order is vague and require s
interference to ensure its effectiveness.
Did the Court a quo disregarded the eviction order which mainly stemmed from the
validity of the appellants’ registered title to the property held under T2269/2015?
[76] The Court a quo did not deal with the eviction judgment in its judgment. I t
too is unclear what the Court dealing with the eviction fully considered. However,
this Court accepts at the very least that absent reference to a counter application
brought by the respondent in the eviction application and having due regard to the
substance of the respondent’s case, the validity of T2269/2015 was not an issue
which served before the Court, at that time, when it dealt with the eviction
application. This is the very reason why the appellant launched the main
application, to place all the facts be fore the Court to ensure, inter alia , that the
eviction from his home in terms of section 26(3) of the Constitution which was
granted is reconsidered to ensure that it was not granted arbitrarily by this
Division. Res judicata was not raised by the appellants.
[77] In th e application before the Court a quo, admittedly the papers were
confusing and poorly drafted, however, the respondent’s case which emerged was
one of a vulnerable person seeking desperately to assert and protect his right of
tenure afforded to him, a nd as initially realised by SAHT via the low-cost housing
scheme. Therefore, as a precaution in light of an eviction order which was
obtained by the appellants in November 2019 the main application was launched.
[78] In the eviction application he was found to be an illegal occupier of the
[78] In the eviction application he was found to be an illegal occupier of the
property in circumstances when, on the common cause facts he fully paid for the
property, he has improved the property and paid for such improvements , he as
with written consent occupied the property for almost 3 (three) decades.18
[79] The order will interfere with the weight of the appellants’ reliance on the title
deed as the ir real right to it will be disturb ed. The order too will disturb any rights
they acquired from the underlying agreement of sale. T he argument that the order
seeks to reverse the eviction order is misplaced. The eviction order stands.
[80] The appellants on this ground as argued fails.
Should the respondent have been barred from moving his application because of a
delay?
[81] The unreasonable delay relied on by the appellants in their answering
affidavit relates to the respondent’s claim based on the Promotion of
Administrative Justice Act 3 of 2000 [ PAJA] claim which the respondent refers to
as against the City, Hlano and DHS. In this regard, reference is made in paragraph
7 of the answer to the unreasonable delay vis -à-vis in respect of PAJA being the
180 days from the date on which the per son concerned was informed or became
aware of the action. The time relied on by the appellants in their papers is the date
of dispute regarding the property, being the 25 May 2015 (“the notice of eviction”).
The appellants contend they waited 5 years befor e instituting the present
proceedings. The application was launched on the 14 June 2021.
[82] The appellants reliance must be seen as against the respondent’s case. In
paragraph 29.3 of his founding papers the respondent stated that his intention was
ultimately to set aside any alleged administrative action purportedly taken by the
City of Tshwane [City], the Department of Human Settlement Gauteng Province
[DHS], the NHFC and Hlano Housing Solutions (Pty) [Hlano]. However, he was
still waiting for the written reasons he requested and “ as soon as those reasons
are provided the Honourable Court will be requested to allow that I supplement my
are provided the Honourable Court will be requested to allow that I supplement my
affidavit to accommodate whatever the response is from the respondents.” In short
18 Cusa v Tao Ying Metal Industries and Other, 2009 (2) SA 204 (CC) at 225H.
he was relying on section 26 of the Constitution to assert his rights and how they
were realised in an attempt to ward off an eviction order foreshadowed in section
26(3) of the Constitution. Furthermore it was his intention to, in time, to vindicate
his constitutional rights to fair ad ministrative action in terms of section 33 of the
Constitution as against the decisions the City, DHS, NHFC and Hlano took when
they transferred the property.
[83] Whether the Court a quo was cloaked with the requisite jurisdiction as a
result of the delay in respect of PAJA relief, such argument must to o be
considered as against paragraph 29.3 when the respondent states that he still
waits for the reasons that he has requested for such administrative decisions . In
terms of section 7(1)(b) of PAJA, the 180 day s is considered as against the time
the person was informed of the administrative action, become aware of the action
and the reasons for it or might reasonably have expected to have become aware
of the action. The appellant does not consider section 7 of P AJA but only on
section 6.
[84] Furthermore the relief sought by the respondent as against the appellants is
not based on PAJA.
[85] The ground of delay as raised must fail.
[86] In consideration the appellants partially succeed on the basis that the order
is vague, a point raised by the respondent too.
CONCLUSION
[87] To satisfy the appellants by setting aside the Court a quo’s order as
requested by both the parties and simply to replace it with a dismissal will not be in
the interest of justice. This is so as it will not bring finality to the dispute between
the parties nor will it be a proper reflection of what the Court a quo should have
done if it had engage d and considered all the evidence and prayers correctly. It
too will not give weight to the State’s fail ure to ensure it Constitutional imperative
of ‘other means’ to achieve the realisation of adequate housing referred to section
26(2) of the Constitution. In short, and as the words of the CC in the Vodacom v
Makate matter which is relevant, the hearing before the Court a quo was an
‘abortive hearing.’19
[88] The importance of this matter to both the parties including the importance of
the subject matter demands that it be dealt with and, dealt with properly.
[89] A Court sitting as an appeal Court in terms of section 19 of the Superior Act
has a wide discretion. However, when exercising such discretion it should do so
judicially. In considering all the relevant facts including those which elicited further
submissions it be came clear that without a proper ventilation of all the material
facts, absent a cross appeal, it was not inclined to grant an order which may
prejudice the applicants. It was for this reason that further submission having
regard to section 19(d) of the Superior Act too was requested from both parties.
[90] Section 19(c) of the Superior Act however empowers a Court of appeal to
remit the main application back, inter alia, to the Court of first instance or to the
Court a quo , with or without further instructions to ensure that a proper
consideration of the case brought before it is conducted. This is considered just in
the circumstances.
COSTS
[91] Costs normally follow the result. However in this case, and as a result of the
appellants’ partial success on a complai nt raised by the respondent too, this Court
holds the view that in exercising its discretion each party should pay their own
costs. It was common cause that the order by the Court a quo could not stand.
[92] I then propose the following order:
19 Vodacom (Pty) Ltd v Makata and Another (CCT51/24)[2025] ZACC 13; 2025 (10) BCLR
1174 (CC).
1. The appeal is upheld.
2. The order dated the 10 February 2023 granted by Mnyovu AJ is set
aside.
3. The application is remitted back to a single Judge of this Division , but
not back to the Acting Judge who heard the matter in the Court a
quo.
4. The Appellants or the Respondent may approach the Deputy Judge
President of this Division to request a preferential Court date to set
the application down for rehearing.
5. All the parties in the main application are to receive notice of the new
date of set down.
6. The Appellants and the Respondent are entitled to supplement their
papers.
7. Each party bears their own costs.
___________________________
L.A. RETIEF
Judge of the High Court
Gauteng Division
I agree,
___________________________
LESO AJ
Acting Judge of the High Court
Gauteng Division
I agree,
___________________________
TERBLANCHE AJ
Acting Judge of the High Court
Gauteng Division
Appearances:
For the Appellants: D.S. Skosana SC
Tshwane Society of Advocates
Cell: (012) 943 5054
Email: skosanasec@counseltsa.co.za
Instructed by attorneys: S Ngomane Incorporated
Tel: (012) 321 5000
Email: ngomanes@telkomsa.net
For the Respondents: G.J. Van Der Berg
Cell: 082 772 8008
Instructed by attorneys: Ramaputlana Attorneys
Email: ramaputlanaattorneys@telkomsa.net
Ref: Ramapotula/CVL505
Date of hearing: 23rd July 2025
Date of further heads of argument: 5th November 2025
Date of Judgment 4th December 2025