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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No. A33/20
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE 1 DECEMBER 2025
SIGNATURE
In the matter between:
JOSEPH MAVABAZA MANGWANE First Appellant
MARGARETH TINTSWANLO MANGWANE Second Appellant
and
JANE GOMBA First Respondent
THE REGISTRAR OF DEEDS, PRETORIA Second Respondent
EKHURULENI METROPOLITAN MUNICIPALITY Third Respondent
DIRECTOR GENERAL IN THE OFFICE OF THE PREMIER,
GAUTENG Fourth Respondent
HEAD OF THE DEPARTMENT OF HUMAN SETTLEMENTS Fifth Respondent
___________________________________________________________________
NEUKIRCHER J:
1] This is an appeal in which the appellants seek, inter alia, that the registration
and transfer of an immovable property described as Erf 4[...] E[...] Section, Tembisa
(the Property) held by the first respondent under title deed number T[...], be declared
invalid and set aside. The appellants, in effect, seek to restore the property to their
possession and ownership. They allege that the first respondent obtained
registration of the Property in her name by way of misrepresentation and fraud.
2] There was no appearance by any of the respondents at the hearing of the
appeal. However, the first respondent was represented a quo and she filed an
answering affidavit to the application.
3] The appeal is against the whole of the judgment and order, including the order
for costs, and comes before this court with leave of the court a quo . I pause to
mention that the order of 12 December 2019 in which leave to appeal was granted,
does not order that costs shall be costs in the appeal.
4] The appellants are married to each other in community of property. The first
appellant has, subsequent to the grant of the leave to appeal, passed away. He has
been substituted in this appeal by the executrix of his estate who is the second
appellant N.O. However, in this judgment, I will continue to refer to him as the first
appellant. As both the founding affidavit and replying affidavit were deposed to by the
first appellant in his lifetime, this will avoid any confusion.
5] The first appellant was a former railway police official who subsequently
joined the South Africa Police (SAP). In 1981 the appellants applied for, and were
granted, a 99 -year lease in respect of the Property. Between 1981 and 1986, the
appellants and their family occupied the Property. But in 1986 , because of the first
appellant’s work as a police officer – the house was torched by the community during
uprisings.
6] Forced to flee their home, the family then sought refuge with relatives.
7] During September 1986, the first appellant found tenants to move into the
Property in order to safeguard it from vandals.
8] During approximately 1987, the appellants secured a home loan and moved
into a new house at Hospital View.
9] In 1994 the first appellant offered his aunt 1 accommodation at the Property.
He states that he extended the offer as his aunt was homeless and unemployed and
she could therefore not afford to either buy a property or rent one for herself and her
family. His aunt later brought the first respondent to the Property to live there with
her. During approximately 1996 the first respondent continued to occupy the property
with the appellants’ permission.
10] In 2001, the appellants’ daughter moved in with the first respondent as she
was attending school in the area. The appellants would visit the Property regularly to
check on its condition, and the first respondent would also visit the appellants’
Hospital View home to fetch groceries.2
11] The appellants state that, to their surprise, in 2004 the first appellant was
accused by the police of abusing the first respondent and he was instructed by them
to refrain from visiting the Property as he was not the owner and was trespassing.
12] On 21 July 2008, the first appellant went to the Municipality3 to enquire about
the ownership of the Property. He was referred to the Gauteng Department of
Housing (the Department). In 2010 the Department informed him that notices had
been issued to occupants to register for Title Deeds. The first respondent registered
herself as the new owner of the Property– she alleged that the original owners were
nowhere to be found. This was despite the fact that:
a) the appellants’ daughter was living with her;
b) she would visit the appellants at their Hospital View home to collect
groceries; and
1 His mother’s sister and the first respondent’s mother
2 The appellants continued to support the first respondent and her mother
3 Who is the third respondent in the appeal
c) the first appellant would visit the Property.
13] The Department also advised the first appellant to seek legal advice, and to
go to the Registrar of Deeds4 (the Registrar) to obtain proof of ownership of the
Property. This the first appellant did on 31 March 2010. He obtained a Deeds Office
print-out confirming the first respondent’s ownership. It appears that the first
respondent acquired ownership of the Property via Title Deed no T[...] after paying
an amount of R1 789-39 in 2002.
14] Unfortunately, at the time, the first appellant was unable to afford legal advice
as he had been declared unfit for police work due to ill-health in 2007. He was
therefore unemployed and lacked the financial means to obtain legal advice and
assistance.
15] In approximately August 2011 the appellant’s house in Hospital View was
auctioned and the family was evicted. The reason for this is not relevant to this
appeal, nor was any information put before us regarding this. The family’s attempts
to move back to the Property were thwarted by the first respondent, who refused to
allow them back. She insisted that she was the registered owner of the Property and
she threatened police action. As a result, the first and second appellants were forced
to find accommodation elsewhere: the first appellant in a shack in Kaalfontein, and
the second appellant with a friend in Tembisa.
16] Through their daughter who worked at an attorney’s firm, the appellants
managed to secure legal assistance in 2015. On 9 March 2016 their attorney visited
the Municipality and obtained a copy of the Certificate of Registered Grant of
Leasehold T[...] as well as an unsigned and undated Investigation Report.
17] The Investigation Reports reads as follows:
“Complaint:
Joseph Mangwane… residing at a squatter kamp next to Kraalfontein
Station at Tembisa came on Monday 21/07/2008 to enquire why his house
At 4[...] E[...] not registered in his names.
4 The second appellant
Investigation:
Oupa went to the house on Tuesday 22/07/2008
He found Jane Gomba the registered title deed holder …
She indicated that she is Joseph’s sister, and that Joseph sold the
House to his Grandmother Maria Gomba.
Maria passed away in 1996 and Joseph started visiting the house to
evict them. She indicated that he went to live in his bond house at View
Section after selling the house at 4[...] E[...].
Status given:
The house and 4[...] E[...] is registered to Jane Gomba T[...].”
18] What is clear from this “investigation” is that:
a) the first respondent informed the official (Oupa) that she was the first
appellant’s sister;
b) she informed Oupa that the first appellant had sold the property to his
grandmother;
c) that she knew exactly where the appellants were living at the time;
d) no proof was provided as regards the amount of the alleged purchase
price or how it was paid or when it was sold;
e) Oupa accepted the first respondent’s version without further ado.
19] With all the above information, the case made out in the appellants’ papers is
that:
a) the first respondent had no authority to register the property into her
name;
b) the invitation by the Municipality to register a property was addressed
to “the Occupier” and not the first respondent herself;
c) the first respondent misrepresented the facts to the Municipality, as is
evidenced by the Investigation Report;
d) the first respondent fraudulently claimed that the owners were nowhere
to be found despite knowing their whereabouts; despite having contact
with them and despite receiving assistance from them;
e) no proper investigation or hearing was conducted by the responsible
department to verify the true ownership of the Property before the
transfer took place;
f) the appellants (as owners) never consented to the transfer of the
Property into the first respondent’s name;
g) the transfer violates s 25(1) of the Constitution which protects against
the arbitrary deprivation of property.
20] The first respondent claims that she is the lawful and registered owner of the
Property since its transfer into her name on 18 June 2002. She alleges that the
Property was her family home and that she resided there – as tenants of the
Municipality who was the owner – with her late mother.
21] On 14 April 2000 she received a letter from the Project Manager of the
Housing Transfer Bureau inviting her - as a tenant – to claim transfer of ownership of
the Property. The letter, addressed to “The Occupant, Stand number 4[...], E[...]”
states inter alia:
“TRANSFER OF THIS RENTED PROPERTY – FINAL REQUEST TO CLAIM!!
Persons who previously rented houses in this township may claim to get ownership
transferred to them without having to pay anything more for rent or for a purchase
price!
This Bureau has been busy on this discount benefit scheme in your area for a long
time, and the great majority of tenants have already made their claims. However, no
claim has yet been made in respect of this house. You are therefore urged to
go to the Housing Transfer Bureau at the Council’s office in TEMBIA BEFORE
THE 15TH OF MAY 2000 BETWEEN 8.30 AND 15.30….”
22] On 28 April 2000 the first respondent signed the transfer documents and on
23 May 2002 the Property was registered in her name.
23] The first respondent denies that the appellants have locus standi to launch the
application. Other than her version supra, she denied the appellant’s version.
24] The court a quo found that the appellants lacked locus standi as they had
failed to prove that the Property was awarded to them and that the document they
provided as proof of their ownership was no more than an application to be allocated
a family residence. The court stated that the claim that the house was in their name
prior to it being transferred to the first respondent was not borne out by the papers.
25] She also found that the print-out from the Deed Registry did not assist the
appellants as, although it confirms that the Property was purchased for R1 789, it did
not state that it was purchased from the appellants.
26] It is, by now, trite that a court of appeal will only interfere with the findings of
the court a quo in the event of a material misdirection. In my view, this misdirection
exists in respect of the finding that the appellants lacked the necessary locus standi
and in respect of the findings in the judgment that underscore the fact that the
application was dismissed.
27] The appellants’ locus standi is derived from the allegations that they were the
owners of the Property and that the Property was fraudulently transferred into the
first respondent’s name. The fact that the court eventually dismissed their version,
does not derogate from these allegations that are used to substantiate their claim.
The application is brought in terms of s6 of the Deeds Registries Act 47 of 1937 (the
Act) which provides:
“Save as is otherwise provided in this Act or in 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 other 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.”
28] In my view, it is clear that s6 of the Act has in mind the cancellation of (in this
case) a deed of transfer with the authorization of a court. In Mvududu v Mvududuno
case) a deed of transfer with the authorization of a court. In Mvududu v Mvududuno
and Others 5, the court stated that where there has been a justus error in a registered
deed and the rights of some interested people have been overlooked and the rights
of others misconceived so that a false certificate has been issued, the court must
5 1981 (4) SA 458 (Z)
intervene to cancel the deed. Although the legislation applied was s8 of the Deeds
Registries Act Chapter 139 (Z), the above is no less applicable to the matter to hand.
29] Applying the trite principles of Plascon-Evans, I find that the version of the first
respondent must be rejected – her version is contradictory and sparse. Compared
with the appellants’ detailed account, her version is so untenable that it cannot be
accepted:
a) it is clear from the documentation provided that the appellants applied
for, and appear to have been granted, the leasehold for the Property
during 1981: the document attached evidences their names, the
Property’s details and the stamps of the relevant officials;
b) the first respondent provided absolutely no details at all about when
she and her mother acquired possession of the Property;
c) the version provided by the first respondent in her answering affidavit,
is contradicted by the version she provided to the Bureau’s Inspector,
as set out supra;
d) it is very clear from what she told the Inspector, that she knew where
the appellants lived and therefore, when she informed the Bureau in
2000 that the owners of the Property were unknown, she was not being
truthful;
e) it is also very clear from the papers that when she received the letter
from the Bureau, she did not inform the appellants of its content and
instead, took the opportunity to register the Property into her name.
30] In my view, what this points to is that the appellants must succeed in the relief
which seeks the cancellation of the Title Deed of the Property in the first
respondent’s name.
31] However, insofar as the appellants seek the eviction of the first respondent
from the Property, this relief cannot be granted. The appellants’ representative
conceded during argument that any eviction would require proper procedures to be
followed under the Prevention of Illegal Eviction from and Unlawful Occupation of
followed under the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1999 (PIE Act). As there has yet to be compliance with any of the
procedures set out in the PIE Act, the relief sought in paragraphs 6, 7 and 8 of the
Notice of Motion6 is not legally competent at this stage.
32] The appellants furthermore during the argument before us curtailed the relief
sought to simply the cancellation of the Title Deed. His argument was that once the
Title Deed is set aside, the Department will have to initiate an investigation into who
is the rightful owner of the Property in terms of the provisions of the Conversion of
Certain Rights into Leasehold or Ownership Act 81 of 1988. This being so, it is
unnecessary to discuss the further relief sought as it was not moved.
33] Insofar as costs are concerned, in my view, costs should follow the result. The
appeal has been substantially successful and the appellants are therefore entitled to
the costs of the appeal. However, insofar as the order granting leave to appeal did
not specify that those costs are costs in the appeal, the effect of that is that there is
no order as to those specific costs.
34] In the result, the following order is made:
1. The appeal succeeds and the order of the court a quo is set aside.
2. The registration of Title Deed No T[...], registered in the name of JANE
GOMBA is declared invalid and set aside.
3. The transfer of the property known as Erf 4[...] E[...] Section, Tembisa
from the appellants to the first respondent is declared invalid and set
aside.
4. The first respondent is ordered to pay the costs of the appeal,
excluding the costs of the leave to appeal.
NEUKIRCHER J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
6 Which seeks the eviction of the first respondent and authorises the Sheriff and the SAP to assist in
enforcing the order
I agree
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
MOOKI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judges whose names are reflected,
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 hand-down is deemed to be 1 December 2025.
Appearances
For the applicant : Mr Mafuyeka
Instructed by :
For the first to third respondents : No appearance
Matter heard on : 5 November 2025
Judgment date : 1 December 2025