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
GAUTENG DIVISION, PRETORIA
Case No: 43480/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 03 JUNE 2026
SIGNATURE
In the matter between:
JOHN SEJAMERA NGWANE Applicant
and
PHUTI PINKI CHOLO First Respondent
REGISTRAR OF DEEDS Second Respondent
JUDGMENT
LABUSCHAGNE J:
[1] The applicant and the first respondent are reflected on the Title Deed of Erf
1[...], Tswelopele Ext. 5 Registration Division JR Gauteng as joint owners of
the property.
Page 2
[2] The applicant applies for an order that he is the sole owner and that the
addition of the first respondent’s name to the Title Deed T9964/2015 be
declared null and void.
[3] The applicant contends that the first respondent fraudulently cause d her
name to be added to the Title Deed. The property in question was awarded
to the applicant by the Gauteng Department of Housing in terms of an HSS
Form and he contends that he should be the sole owner.
[4] The Title Deed contains a restrictive condition in terms of Section 10A of the
Housing Act 1 (Housing Act), providing that the property may not be sold or
otherwise allocated unless it has been offered to the Gauteng Housing
Department within a period of 8 years from the date of registration.
[5] The Title Deed indicates that the conveyancer was M acmillan Dzivakivi of
Gcwensa Attorneys in Mondeor. The property was registered in the
applicant’s and the first respondent’s names on 18 February 2015.
[6] The applicant’s contentions regarding fraud are flimsy and lack primary facts.
To choose motion proceedings in such circumstances is imprudent.
[7] The first respondent provides a version diametrically opposed to that of the
applicant. The applicant and the first respondent were in a relationship when
they acquired the property and, according to the first respondent, they both
signed the Power of Attorney that gave rise to the registration of the property
in their names. She contends that she and the applicant thereafter got
1 107 of 1997.
Page 3
married in terms of Customary Law in 2016 and that a l obola letter was
exchanged. The applicant disputes that they were married and contends
that he merely paid damages for a child that was born out of the relationship
between him and the first respondent.
[8] The first respondent contends that they had received copies of the Title
Deed in 2015 already. The applicant ended the relationship in 2018.
[9] In an instance where there are conflicting versions in motion proceedings,
the applicant for final relief needs to establish his cause of action on the first
respondent’s version and on common cause facts. In this instance he
cannot do so. The first respondent’s version indicates that the property in
question was the communal property of the parties w hen they got married
and had a family. She confirms that they obtained copies of the Title Deed
in 2015 already and that the applicant’s allegation that he was surprised at
discovering that she was co-owner is simply untrue.
[10] The applicant cannot succeed in these proceedings based on the application
of the Plascon-Evans rule. Counsel for the applicant sought to persuade
the court that the respondent’s version falls to be rejected. Even if this were
possible, the inclusion of the first respondent as co -owner of the Title Deed
would mean that the conveyancer in question was a party to the alleged
fraud. The applicant has made no such allegation as far as the conveyancer
was concerned. The first respondent could not be included as co-owner if
the conveyancer ha dd the conveyancer not been involved. This indicates
that, even on the applicant’s version, he cannot establish fraud.
Page 4
[11] The aforesaid demonstrates just how difficult it is for a party to establish
fraud on paper in motion proceedings . The aforementioned principle finds
support in Badenhorst NO v Manyatta Properties Close Corporation and
others,2 where the court affirmed that “the trite principle that allegations of
fraud ought not to be easily made and are not lightly established,” a principle
also echoed in Matjhabeng Local Municipality v Down Touch Investments
(Pty) Ltd and another ,3 where it was held that “ allegations of fraud must be
supported by particularity. Such allegations should not find its way into an
affidavit lightly. It must be backed up by hard evidence, because fraud is not
easily found, much less inferred.”
[12] From the aforesaid it is apparent that the application cannot succeed. The
fact that the applicant contends in these proceedings that the property was
allocated other than as indicated in the Title Deed , may very well in itself
attract the pr e-emptive right of the Gauteng Housing Tribunal. As the
property was registered in the names of the applicant and the first
respondent in 2015, the 8-year period to which the restrictive conditions
pertained expired in 2023. These proceedings were initiated in 2019. The
Housing Tribunal has an interest in these proceedings and should have been
joined.
[13] However, t he non -joinder of the Gauteng Housing Department is not the
primary reason why the application should fail. It fails because the applicant
2 Badenhorst NO v Manyatta Properties Close Corporation and others [2025] JOL 70321 (SCA) at para 64.
3 Matjhabeng Local Municipality v Down Touch Investments (Pty) Ltd and another [2024] 4 All SA 827 (FB) at
para 27.
Page 5
could not establish the alleged fraud either on his own papers or, with the
application of the Plascon-Evans rule, on the first respondent’s version.
[14] Allegations of fraud in motion proceedings carry a h igh burden. A failure to
establish fraud equally carries costs conseq uences. This is to discourage
gratuitous abuse of another in affidavits in court proceedings . It reflects
judicial disdain for an unwarranted character assassination on paper in
motion proceedings. In th is matter the applicant’s child with the first
respondent was present in court and heard the allegations of fraud repeated
against her mother. The applicant will be mulcted in a punitive costs order
[15] In the premises the following order is made:
1. The application is dismissed with costs on an attorney and client scale
_______________________________
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT: ADV MAAKE
COUNSEL FOR RESPONDENT: ADV SHISINGA