SAFLII Note: Certain personal/private 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
MPUMALANGA DIVISION, (MIDDELBURG LOCAL SEAT)
CASE NO: A23/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
SIGNATURE
DATE 05/06/2025
In the matter between:
In the matter between:
PHEELLO PETRUS MOLOI APPELLANT
And
PULENG PENELOPE MOKOENA FIRST RESPONDENT
DIPALESNG LOCAL MUNICIPALITY SECOND RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand -down is deemed
to be at 10:00 on 5 June 2026.
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JUDGMENT
Phahlamohlaka J (Fourie AJ CONCURRING)
[1] This is an appeal against the judgment and order of the Magistrate’s Court,
Balfour (“the court a quo), delivered on 7 March 2025. The court a quo dismissed the
appellant’s application for eviction of the respondents in an application for eviction
under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998 ("PIE Act").
[2] The dispute concerns state -subsidized property (an “RDP house ”) at Erf 3[...],
Zone 02, Balfour , which was allocated t o the appellant in 2004 by Dipaliseng Local
Municipality, of which the appellant did not take immediate occupation.
[3] By verbal agreement, the appellant allowed the parents of the first respondent,
Puleng Penelope Mokoena, to occupy the property. Upon their passing, the first
respondent remained in occupation , which remains the position at the time of this
judgment.
[4] The appellant claims lawful ownership, supported by a registered title deed dated
11 November 2019 . In the court a quo the appellant sought eviction of the first
respondent, alleging her occupation is unlawful. The first respondent contend ed that
her parents bought the property from the appellant in 2007 for R40,000 . The first
respondent’s contention was supported by confirmatory affidavits, but no written sale
agreement exists.
[5] The court a quo dismissed the eviction application, holding that the appellant had
lost ownership by failing to occupy the property, that the provincial government is the
lawful owner under section 10A (3) of the Housing Act 107 of 1997, and that the
Department should have been joined as a party. The court a quo thus found that the
applicant lost ownership of the property by deserting it.
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[6] The appellant raised the following grounds of appeal:
(i) That the learned Magistrate erred by applying and finding that section 10A (3)
of the Housing Act, 107 of 1997 to be applicable and binding against the
appellant.
(ii) The learned Magistrate erred in finding that Section 10A (3) of the Housing
Act, 107 of 1997 rendered the applicant to be lacking the locus standi to
institute the application for the relief sought in the court a quo.
(iii) The lea rned Magistrate erred by finding that the appellant , although a
possessor of a valid title deed over the property in dispute, lost his right of
ownership as a result of noncompliance with section 10A (3) of the Housing
Act, 107 of 1997.
(iv) The learned Magistrate erred by finding that the provincial government is the
lawful owner of the property in dispute.
(v) The learned magistrate erred further by finding that the court had no basis to
consider the merits of the application because the provincial department
was not joined as a party and that only an owner of immovable property can
institute an application in terms of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998.
[7] It is either common cause or not in dispute that the appellant is the holder of a
title deed to the property. However, the court a quo found that the property’s
ownership vests in the provincial government in terms of section 10A (3) of the
Housing Act which provides that:
“When a person vacates his or her property the relevant provincial housing department shall be
deemed to be the owner of the property and application must then be made to the registrar of these
by the provincial housing department for the title deeds of the property to be endorsed to reflect the
department's ownership of that property.”
[8] The court a quo’s interpretation of section 10A(3) was that non-occupation by the
appellant resulted in an automatic revers al of ownership to the provincial
appellant resulted in an automatic revers al of ownership to the provincial
government, despite the appellant holding a registered title deed. This approach
disregards the principle that ownership of immovable property vests upon
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registration in the Deeds Office, and that a valid title deed is conclusive proof of
ownership unless set aside by a competent court.
[9] In Legator McKenna Inc v Shea1 the court held that:
“In accordance with the abstract theory the requirements for the passing of ownership are
twofold, namely delivery-which in the case of immovable property, is affected by registration
of transfer in the death of his -coupled with a so -called real agreement or ‘saaklike
ooreenkoms’.
[10] It is now settled that ownership of immovable property is transferred by
registration. The appellant’s registered title deed is therefore conclusive proof of
ownership.
[11] Section 10 A ( 3) restricts alienation of state -subsidized property within eight
years unless first offered to the provincial housing department. However, it does not
automatically divest a registered owner of title without procedural compliance (such
as endorsement in the Deeds Office).
Eviction under PIE act:
[12] The PIE act requires that only an owner or person in charge may seek eviction.
The appellant, as registered owner, qualifies.
[13] One of the considerations by the court a quo in dismissing the application was
that the provincial government ought to have been joined to the proceedings. It is not
clear from the court a quo ’s reasoning what interest the Department derive in the
proceedings. Secondly, the order sought by the appellant would not affect the
provincial government.
[14] The law is settled that j oinder is only required where a party has a direct and
substantial interest. The provincial government, not being a registered owner, has no
such interest.
1 Legator McKenna INC and Another v Shea and Others 2010 (1) SA 35 (SCA) at para 22
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[15] In Road Accident Fund and Others v Hlatshwayo and Others 2 the Supreme
Court of Appeal stated as follows:
“In dealing with the issue of personal costs against the CEO and the Board, it is perhaps
convenient to start with the order against the Board. The order of the full court was assailed
on the basis that there was a material non -joinder of the Board. It is trite that joinder of a
party is required where such a party may have direct and substantial interest in the subject
matter of the action. In Snyders and others v De Jager and Others [2016] ZACC 54; 2017 (5)
BCLR 606 CC the constitutional court held as follows:
A person has a direct and substantial interest in an order that is sought in proceedings if the
order would directly affect such p erson’s right or interest. In that case the person should be
joined in the proceedings. If the person is not joined in circumstances in which his or her
rights or interest will be prejudicially affected by the ultimate judgment that may result from
the proceedings, then that will mean that a judgment affecting that person's rights or
interests has been given without affording that person an opportunity to be heard. That goes
against one of the most fundamental principles of our legal system. That is that, as a general
rule, no court may make an order against anyone without giving that person the opportunity
to be heard.
[16] In Mnyandu v Oliphant and Others3 the Free State High Court stated that:
“Once a Magistrates Court is provided with a Deed of transfer or a Title Deed over property
by an appellant for eviction, then ownership of the property has been established and the
only alternative option in such circumstances is for the magistrate to stay the eviction
proceedings upon request by the party challenging the validity of the deed pending the final
determination thereof by the High Court. In court a quo, an opportunity was indeed granted
determination thereof by the High Court. In court a quo, an opportunity was indeed granted
for the respondent to approach the High Court for the setting aside of the appellant’s Title
Deed but he failed do so despite being legally represented at the time. In such
circumstances the magistrate should merely have proceeded to the second stage of the
inquiry, namely, to decide whether the respondent was an unlawful occupier of the property
in terms of the act.”
2 (724/2023; 724B/2023) [2025] ZASCA 17; [2025] 2 ALL SA 333 (SCA) (5 March 2025) at para 29
3 (A202/2016) [2017] ZAFSHC 61at para 23
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[17] The appellant has established ownership and locus standi. The first
respondent’s occupation is not based on ownership, a valid lease, or any lawful right.
Therefore, the court a quo erred by finding that neither the appellant nor the first
respondent can be considered “owners” in terms of the PIE Act.
[18] The appellant has shown that eviction will not prejudice the first respondent, who
has alternative accommodation and no dependents residing with her. There is no
evidence of exceptional circumstances justifying refusal of eviction.
[19] On the conspectus of the facts presented before the court a quo, it is my
considered view that the court a quo erred by refusing to grant the appellant an
eviction order. Consequently, the appeal must succeed.
Costs:
[20] This court has considered the nature of the matter and the fact that the issues
on which the appeal ultimately was decided and I do not believe it warran ts a cost
order in respect of the Appeal to be made. In the main application however, no
reason exists why costs need not follow suit.
Order
[21] In the circumstances I make the following order:
21.1 The appeal is upheld with no order as to costs.
21.2 The order of the Magistrate’s Court is set aside and substituted as
follows:
21.3 The first respondent (and all persons occupying through her) is
ordered to vacate Erf 3[...], Zone 02, Balfour, within 30 days of this
order.
21.4 Failing compliance, the Sheriff is authorised to evict the first
respondent and any other unlawful occupiers, with the assistance of
the South African Police Service if necessary.
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21.5The first respondent is ordered to pay the costs on a party and
party scale.
_________________
KF PHAHLAMOHLAKA
JUDGE OF THE HIGH COURT
I agree.
________________________
H FOURIE,
ACTING JUDGE OF THE HIGH COURT
Appearances
Matter dealt with on paper.
Date judgment reserved: 30 January 2026