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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2022-008784
In the matter between:
In the matter between:
GAUTENG PROVINCIAL GOVERNMENT
DEPARTMENT OF HUMAN SETTLEMENTS First Applicant
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Second Applicant
LAZAVUS KABELA Third Applicant
REFILWE JULIA MASHILE Fourth Applicant
and
TEBOGO MOAGI First Respondent
TEBOGO MOAGI N.O AS GUARDIAN TO THATO
OMPHILE SIPHO MOAGI & LESEDI TSHIAMO
REITUMETSE MOAGI Second Respondent
MARY BRENDA MALEKA N.O AS EXECUTOR IN
THE ESTATE OF THE LATE DOKKIE MAGDELINE
MALEKA AND PITINI JOSEPH MALEKA Third Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
22 JUNE 2026 _________________
DATE SIGNATURE
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KENOSI MALEKA Fourth Respondent
MASTER OF THE HIGH COURT JOHANNESBURG Fifth Respondent
REGISTRAR OF DEEDS JOHANNESBURG Sixth Respondent
This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by email, publication on Case Lines as well
as Saflii. The date for the handing down is deemed to be 22 June 2026.
JUDGMENT
MUDAU, J:
Introduction
[1] This is an application for the cancellation of Deed of Transfer T1671/2020 in
respect of Erf 2566 Orlando East Township, Gauteng ( “the property ”). The
applicants seek a declaration that the registration of the property in the names
of the f irst respondent and two minor children was unlawful, and an order
directing the sixth respondent to cancel the deed and revert the property to
the first applicant for registration in terms of a Family House Rights
Agreement dated 23 April 2008.
[2] The application raises a fundamental preliminary issue: whether the
applicants can bring this application at all, given the existence of a final order
of this Court (per Matsemela AJ) dated 22 May 2019, which cancelled the
very deed of transfer under which the t hird and f ourth applicants previously
held the property. That order has never been rescinded or appealed.
Background facts
[3] The factual matrix is regrettably convoluted. The property was originally
subject to a permit held by the late Anna Ndlebe. Following her death, a
mediation was held on 23 April 2008, resulting in a Family House Rights
Agreement which appointed the late Pitini Joseph Maleka as “ custodian” of
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the family house, with obligations to keep the property available for specified
family members.
[4] In 2003, the f irst applicant erroneously registered the property as exclusive
ownership to Pitini Maleka. This error was purportedly rectified in 2017 when
the property was registered in the names of the third applicant (Lazavus
Kabela), the f ourth applicant (Refilwe Mashile), and the late Moses Kabela
under Deed T30858/2017.
[5] Critically, on 22 May 2019, this Court granted an order in favour of the third
respondent (Mary Brenda Maleka N.O., as executrix) cancelling Deed
T30858/2017. That order was granted by default, as the a pplicants did not
oppose those proceedings.
[6] Thereafter, the fourth respondent (Kenosi Maleka), as sole heir and executrix
of her late parents' estate, sold the property to the f irst respondent. The
property was registered in the name of the f irst respondent and two minor
children under Deed T1671/2020 on 24 January 2020. Eviction proceedings
have since been instituted against the third and fourth applicants.
The threshold issues
The 2019 court order
[7] The fourth respondent raises a pointed and, in my view, dispositive
preliminary objection. She contends that the a pplicants cannot seek the relief
they now pursue because the 2019 O rder of Matsemela AJ remains extant
and has never been rescinded or appealed.
[8] The answering affidavit states at paragraph 3.2: “I am advised by my legal
representatives that the correct cause of action in such an instance where
judgment by default is entered against you, is to apply for rescission of such a
judgment timeously and to explain any delays and provide a defence” . And at
paragraph 4.6: “Once a court has given a judgment, it must stand until that
judgment is appealed or rescinded, one cannot merely attempt to replace a
valid judgment in a new application”.
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[9] These statements are uncontroverted. The a pplicants filed no replying
affidavit. They have not explained why they failed to oppose the 2019
proceedings. They have not sought rescission. They have not appealed. They
have offered no excuse for their default.
[10] The law is clear: A final order of court, even one granted by default, remains
binding and effective until set aside by a competent court. A party cannot
simply ignore such an order and launch fresh proceedings seeking relief that
is inconsistent with or would undermine that order. The proper remedy is to
apply for rescission pursuant to Rule 31 (2) (b) or Rule 42 (1) of Uniform
Rules of Court or under common law.
1 In essence a party against whom a
default judgment has been granted must seek rescission; they cannot simply
ignore it or launch collateral attack.
[11] The applicants’ heads of a rgument characterise the 2019 order as an “ abuse
of court process ” and claim that the t hird respondent “used the courts as a
conduit to achieve unlawfulness ”. But these are bare assertions. No
application to set aside that order has been brought. No evidence has been
placed before me to suggest that the 2019 order was obtained by fraud or
misrepresentation. In the absence of a replying affidavit, the allegations in the
answering affidavit stand uncontroverted.
The applicants’ alternative remedy
[12] The question posed is whether the a pplicants have any alternative remedy in
the face of the existing court order. The answer is yes, and it is clear: the
applicants must apply for rescission of the 2019 default judgment. That is the
procedurally appropriate mechanism.
The court has wide discretion in
evaluating ‘good cause’ to ensure that justice is done.2
[13] In a rescission application, the applicants would be required to:
a) provide a reasonable explanation for their default;
1 See generally, Mutebwa v Mutebwa and Another 2001 (2) SA 193 (Tk) at 199F -G; Chetty v Law Society,
Transvaal 1985 (2) SA 756 (A).
Transvaal 1985 (2) SA 756 (A).
2 See Wahl v Prinswil Beleggings (Edms) Bpk 1984 (1) SA 457 (T).
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b) show that they have a bona fide defence to the claim; and
c) show that the application is made bona fide and not with the intention
of delaying the other party’s claim.
[14] The founding affidavit suggests that the first applicant’s error in registering the
property to Pitini Maleka was “ administrative error ”. That may constitute a
defence to the 2019 application. But that defence must be raised in the proper
forum: an application for rescission of the 2019 order. It cannot be advanced
by way of a new, separate application that simply seeks to bypass the existing
order.
[15] The applicants’ heads of argument cite Nedbank Ltd v Mendelow and Another
NNO
3 for the proposition that registration effected pursuant to fraud or a
forged document does not pass ownership. That is trite. But there is no
allegation of fraud or forgery before me. The 2019 order was regularly
obtained, even if by default. The remedy is rescission, not a collateral attack.
The Family House Rights Agreement
[16] Even if I were to consider the merits, the r espondents’ heads of a rgument
raise a further difficulty for the a pplicants. In Hlongwane and Others v
Moshoaliba and Others ,
4 this Division held that a Family House Rights
Agreement is “ nothing but a personal arrangement between siblings ” and
“does not elevate that arrangement above the real right of ownership in the
immovable property, registered through the transfer process”.
[17] Similarly, in Gauteng Provincial Government: Department of Human
Settlements and Others v Pogatsi and Others ,5 the court held that a family
agreement did not “ purport to give any rights of ownership” 6 and that there
was “no evidential basis to go behind the existing terms of the deed”.7
3 [2013] ZASCA 98; 2013 (6) SA 130 (SCA).
4 [2018] ZAGPJHC 114 at [53].
5 [2022] ZAGPJHC 762.
6 Id at [15].
7 Id at [27].
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[18] The Deeds Registries Act 47 of 1937 does not recognise “family house rights”
as a registrable interest that trumps the registered owner ’s title. The property
in question had, at all relevant times, an individual registered owner. Upon the
death of Pitini Maleka, the property devolved in terms of the Intestate
Succession Act 81 of 1987 to his sole heir, the fourth respondent.
[19] As the r espondents’ heads correctly point out (paragraph 20): if the Deed
T1671/2020 were cancelled, the property would “ revert to the estate of the
late Pitini Joseph Maleka, as he was the owner immediately prior to the
registration whereafter the fourth respondent is again the legal owner of the
property through succession and entitled to sell the property to the first
respondent”. The applicants’ relief would therefore be futile.
The absence of a replying affidavit
[20] The applicants did not file a replying affidavit. In motion proceedings, the
absence of a reply means that the factual allegations in the answering affidavit
are admitted or at least not contested. As the Supreme Court of Appeal held
in National Director of Public Prosecutions v Zuma,
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allegation in an answering affidavit may be taken as true.
[21] The answering affidavit states that the property was offered to the t hird
applicant, who declined due to accrued rates and taxes. This is not disputed.
The answering affidavit states that the 2019 order was granted and remains in
force. This is not disputed. The answering affidavit states that no rescission or
appeal has been sought. This is not disputed.
Costs
[22] The fourth respondent seeks costs on a punitive scale (attorney and client).
The applicants have brought proceedings that are, in my view, doomed to fail
in the face of an extant court order. They have not explained their failure to
pursue the proper remedy of rescission. They have filed no replying affidavit.
These proceedings have forced the respondents to incur legal costs to defend
These proceedings have forced the respondents to incur legal costs to defend
a title that was lawfully acquired following a court order.
8 [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at [26].
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[23] In these circumstances, I am satisfied that the a pplicants have acted
vexatiously and that a punitive costs order may well be warranted. Given the
common cause background, and costs being a discretionary matter, I decline
to follow that route. The applicants shall pay the costs of the first and f ourth
respondents, including the costs of counsel.
Order
[24] In the result, I make the following order:
1. The application is dismissed.
2. The applicants are jointly and severally liable for the costs of the f irst,
second, third, and fourth respondents, including the costs of counsel.
___________________________
MUDAU J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Date of Hearing: 25 May 2026
Date of Judgment: 22 June 2026
APPEARANCES:
For the Applicants: Adv L Nyangiwe
Instructed by: Raborifi Attorneys
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For the Respondents: Adv S Viljoen
Instructed by: Lojane Attorneys