Nzimande v Nzimande and Another

JurisdictionSouth Africa
Citation2005 (1) SA 83 (W)

Nzimande v Nzimande and Another
2005 (1) SA 83 (W)

2005 (1) SA p83


Citation

2005 (1) SA 83 (W)

Case No

A3047/02

Court

Witwatersrand Local Division

Judge

Jajbhay J and Gildenhuys J

Heard

June 2, 2004

Judgment

September 8, 2004

Counsel

S C Vivian for the appellant.
F Memani for the first respondent.
T L Dikolomela for the second respondent.

Flynote : Sleutelwoorde G

Land — Occupation of — Conversion of Certain Rights into Leasehold or Ownership Act 81 of H 1988 — Rights under — Rights of holder of certificate issued in terms of regulations promulgated under s 8 of Black (Urban Areas) Consolidation Act 25 of 1945 — Holder of certificate issued under regulations not automatically entitled to declaration of grant of rights under s 2 of Conversion Act — Director-General exercising discretion in making determination under s 2 of Act — Such discretion entitling Director-General, retrospectively, to treat as invalid certificate issued under regulations — Such entitlement I flowing from particular facts of matter, applicable legislation and interests of justice and good government — Accordingly, in making his determination, Director-General having authority to declare grant of ownership to someone other than holder of certificate. J

2005 (1) SA p84

Headnote : Kopnota

The appellant and first respondent both laid claim to ownership of certain immovable property in respect of which the deceased had been A issued with a certificate of occupation in terms of reg 8 of the regulations promulgated under the Black (Urban Areas) Consolidation Act 25 of 1945. The appellant was the deceased's brother and the first respondent was his wife by customary union. The deceased died intestate and, in terms of the Black Administration Act 38 of 1927, the Black Affairs Commissioner appointed the appellant as heir to the B deceased estate. The appellant duly took cession of the deceased's right of occupation and was himself issued with a certificate of occupation in terms of reg 8. The Commissioner failed to invite the first respondent to apply for cession of the certificate since black customary law precluded women from participating in the intestate succession of a deceased estate. The certificate issued to the appellant reflected that the property would be occupied by the C appellant and his dependants. In truth, however, the property was occupied by the first respondent prior to, and even after, the issue of the certificate to the appellant. The first respondent was thereafter declared by the Director-General to have been granted ownership of the property under s 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988. The present appeal D concerned itself with the appellant's objection to that declaration by the Director-General. The appellant contended that the Director-General had had no discretion to grant ownership to anyone other than the holder of the certificate of occupation and that it was therefore he who ought to have been declared to have been granted ownership of the property.

Did the Director-General have a discretion to grant the rights to someone other than the holder of a certificate of ownership? E

Held, that although the certificate remained valid until set aside by a Court on review, there was nothing in the Conversion Act which precluded the delegated official, in his determination under s 2 of the Act of who had acquired rights to the property, from considering the substantive validity of the certificate. (Paragraphs [48] and [49] at 97A and C.) F

The use and occupation of the dwelling

Held, that the Conversion Act was not intended automatically to convert existing rights under the regulations into rights of leasehold or ownership. Having investigated the dispute under s 2 of the Act, the Director-General exercised a discretion in his determination of who had acquired the right of leasehold or ownership in respect of the property. (Paragraphs [66] and [67] at 103G - H G and 104B/C.)

The deed of cession

Held, that the appellant had taken cession of the certificate by virtue of the fact that, in terms of black customary law, women did not participate in the intestate succession of a deceased estate. Intestate succession in black customary law was based on the principle of primogeniture. (Paragraph [68] at 105E.) H

Held, further, that the principle of primogeniture in black customary law, however, constituted discrimination on the grounds of race and gender and was therefore unconstitutional and invalid. (Paragraph [69] at 105H - 106A.) I

Held, further, that the facts of the present matter, the application of the relevant statutory provisions and the interests of justice and good government justified the certificate's being disregarded, even though it had been validly issued. This was a case in which the enforcement of the certificate, in the light of present constitutional values, could not be countenanced. (Paragraph [72] at 106F - I.) J

2005 (1) SA p85

Held, further, that the disposition in favour of the appellant had not been just and, therefore, the delegated official had A had the necessary jurisdiction and authority to allocate the rights of ownership to the first respondent. (Paragraph [73] at 106J - 107A.)

Held, accordingly, that the appeal had to be dismissed. (Paragraph [76] at 107G.)

Semble: It might well not have been in the interests of justice and good government to disregard the certificate if the B appellant had, in fact, had the use and taken occupation of the property pursuant to his being issued with the certificate. (Paragraph [72] at 106F - G/H.)

Cases Considered

Annotations

Reported cases C

Bhe and Others v Magistrate, Khayelitsha, and Others 2004 (2) SA 544 (C) (2004 (1) BCLR 27): dictum at 551I followed

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735): referred to

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): dicta in paras [20] and [172] applied

Fripp v Gibbon and Co 1913 AD 354: dictum at 357 - 8 referred to D

Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (11) BCLR 1197): dictum in para [10] applied

Merber v Merber 1948 (1) SA 446 (A): referred to

Moremi v Moremi and Another 2000 (1) SA 936 (W): dictum at 940C - F applied E

Moseneke and Others v The Master and Another 2001 (2) SA 18 (CC) (2001 (2) BCLR 103): referred to

Motloung v Rokhoeane 1991 (1) SA 708 (W): distinguished

Mthembu v Letsela and Another 2000 (3) SA 867 (SCA): referred to

Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others 2004 (6) SA 222 (SCA): applied F

Phasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (W): dictum at 478C - F followed

R v Ghoor and Others 1960 (3) SA 42 (C): dictum at 44C - 45F applied

Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC) (2000 (4) BCLR 347): referred to G

Zondi v President of the Republic of South Africa and Others 2000 (2) SA 49 (N): referred to.

Statutes Considered

Statutes

The Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988, s 2: see Juta's Statutes of South Africa 2003 vol 6 at 2 - 301/2. H

Regulations

The Regulations Governing the Control and Supervision of an Urban Black Residential Area and Related Matters (GN R1036 of 14 June 1968) promulgated under the Black (Urban Areas) Consolidation Act 25 of 1945. I

Case information

S C Vivian for the appellant.

F Memani for the first respondent.

T L Dikolomela for the second respondent.

Cur adv vult.

Postea (September 8). J

2005 (1) SA p86

Judgment

Jajbhay J: A

Introduction

[1] This case concerns itself with the implementation and application of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 (the Conversion Act). The Conversion Act was promulgated 'to B provide for the conversion of certain rights of occupation into leasehold or ownership and for matters connected therewith'.

[2] The acquisition of land ownership by black persons in the 'urban areas' of South Africa was a convoluted process which was governed by several repressive Acts of Parliament. The inability to own land, coupled with the principle of primogeniture, which underpins the C male domination in African customary law, left women looking on as spectators as the legislative authorities and the male dominated society determined what was in the women's best interests. D

[3] The essence of the dispute in the present matter sprouts from the seeds that were embedded by the Black Administration Act 38 of 1927 (the Black Administration Act). This Act has been described by the Constitutional Court as 'an egregious apartheid law which anachronistically has survived our transition to a non-racial democracy'. [1] Subordinate legislation made under it has been referred to as part of a 'demeaning and racist E system, as obnoxious and as not befitting a democratic society based on human dignity, equality and freedom'. [2] The consequences flowing from the Black Administration Act, which systematically enforced a colonial form of relationship between the dominant white minority, who enjoyed the rights of ownership, and the majority of black 'subordinates' who were administered, coupled with F the resultant pain, indignity and inequality, is underlined by the facts of this dispute. Sachs J in the Moseneke and Others case, continued in para [21]:

'It is painful that the Act still survives at all. The concepts on which it was based, the memories it evokes, the language it continues to employ and the division it still enforces are antithetical G to the society envisaged by the Constitution.' [3] It is an affront to all of us...

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9 practice notes
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