Ngozo and others v Ngozo and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Noko J
• Judgment Date: 18 September 2023
• Citation: 2023 JDR 3518 (GJ)
• Hearing Date: 06 September 2023
• Docket Number: 36953/2019
• Court: Gauteng Local Division, Johannesburg

Noko J:

Introduction

[1]

The applicant launched an application to first declare the Will executed by the late Anna Nkosi-Ngozo to be invalid. The testator having bequeathed the property, to wit, erf 1300, Katlehong Township, held by Certificate of Leasehold TL42784/1999 (Deed) situated at 1300 Nhlapo Section, Katlehong, Germiston (property) to the first respondent, Grace Ngozo. Secondly, to declare the Deed registered in favour of the first respondent null and void. The respondent has raised several points in limine against the application. [1]

[2]

Grace Ngozo is the only respondent opposing the application and reference to the respondent in this judgment shall only refer to Grace Ngozo.

Background

[3]

The factual background is common cause between the parties. The late Joseph Ngozo and Christine Ngozo were registered holders of the certificate of occupation issued in respect of 1300 Nhlapo section. The late Christine Ngozo predeceased Joseph Ngozo who subsequently remarried Anna Nkosi on 17 November 1981. Mr Ngozo passed away on 28 November 1982. Mrs Anna Nkosi resided on the property with the applicants, and two stepdaughters, namely, Lucy and Alice. She then executed a Will bequeathing the property to the respondent on 8 January 1993.

2023 JDR 3518 p3

Noko J

[4]

At the time when the Will was executed the deed was not yet issued as it was still the case in Africans’ townships that the rights granted to Africans were only rights to occupy and not ownership.

[5]

The court has, per Dlamini J, ordered on 5 October 2022 that the “. . . the parties must refer this dispute to the Director-General (D-G) for the Department of Human Settlements, Gauteng to hold and enquiry in respect of House 1300 Nhlapo Section, Katlehong; so as to determine who shall be declared the rightful owner/s in terms of section 2 of the Conversion of Certain Rights into Leasehold Act, Act No. 81 of 1988, as amended (Conversion Act).” [2] The applicant’s counsel submitted that this order could not be implemented as the DG’s office stated that the process contemplated in terms of the Conversion Act envisages that the property should still be in the name of the state and in this instance the deed is already issued to the respondent and it will be moot to institute the inquiry.

Issues for determination

[6]

The issues for determination are whether:

6.1.

the respondent’s points in limine are sustainable,

6.2.

the applicant has made up a case for the declaration of the Will invalid and the order cancelling the deed issued in favour of the first respondent.

2023 JDR 3518 p4

Noko J

Parties’ contentions and submissions

Points in limine

Non-joinder of Vusumuzi Ngozo

[7]

The counsel for the respondent contended that Vusumuzi Ngozo, who is a fiduciary heir in terms of the Will of the late Mrs Anna Nkosi-Ngozo has interest in the impugned Will which is sought to be declared invalid and should have been joined in the lis. The applicant conceded that indeed Vusumuzi Ngozo was indeed not joined but he is aware of the proceedings and has in fact deposed to a confirmatory affidavit in relation to the answering affidavit deposed to by the respondent. In reply the respondent’s counsel correctly contended that it is not sufficient to contend that the Vusumuzi Ngozo is a party on the basis that he has deposed to a confirmatory affidavit. He must be properly cited and joined as a party.

[8]

It was held by the Supreme Court of Appeal in Golden Dividend v Absa Bank [3] that “[T]he test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matter of the litigation which may prejudice the party that has not been joined. In Gordon v Department of Health, Kwazulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA) it was held that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had not been joined, then those third parties have a legal interest in the matter and must be joined.” [4]

2023 JDR 3518 p5

Noko J

[9]

It is ineluctable that the outcome of the adjudication on the validity of the Will has an impact on Vusumuzi Ngozo’s benefit from the Will and to this end he is entitled to be joined and should have been joined as a party to the litigation. This point in limine has merits and is sustainable in respect of the relief to declare the Will invalid but may not affect the relief sought regarding the setting aside of the registration of the transfer to the respondent.

Lack of locus standi

[10]

The respondent contended that the applicants are the grandchildren of the late Joseph Ngozo and are not entitled to inherit per representation unless there is a Will. To the extent that there is no Will executed by the late Mr Joseph Ngozo they are disqualified to benefit ab intestatio. To this end, so went the argument, they do not have locus standi to bring the application and this application should ergo be dismissed. The applicant’s attorneys correctly highlighted the importance of the locus standi and he also referred to the judgment of the constitutional court in Giant Concerts cc v Rinaldo Investments Pty Ltd and Others [5] where it was held that the question of locus standi must be determined before the merits of the lis are considered by the court.

[11]

This point in limine was ill-conceived because the Conversion Act considers that the individuals who had right to occupy the property are entitled to claim ownership of the land. In this regard it is common cause that the applicants were listed as occupiers of the property. Their legal standing is therefore not dependent on their status in relation to the late Jospeh Ngozo but by virtue of their rights as occupiers [6]. To this end the point in limine is therefore unsustainable...