Sebatana v Mangena

• Jurisdiction: South Africa
• Judge: Snyckers AJ
• Judgment Date: 06 August 2013
• Docket Number: 08560/13
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 25 July 2013
• Citation: 2013 JDR 2344 (GSJ)

Snyckers A J:

[1]

This application concerns a contested transfer of residential property, namely house number 1687A Naledi Township, Soweto, Johannesburg, identified in the Transfer Deed as Erf 2800 Naledi Township, Registration Division I Q, Province of Gauteng ("the Property").

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[2]

The immediate subject of the application is a Deed of Transfer No. T23347/2001, stating itself to be effected in terms of the provisions of section 13(1) of the Upgrading of Land Tenure Rights Act 1991 (Act No. 112 of 1991), registered on 24 April 2001, and executed on 13 December 2000, by the transferor, who declared himself to be duly authorised to do so by the (then) Southern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council. The transferor in this Deed declared that the Substructure "did on 13 December 2000 truly and legally sell the Property for the sum of R1 175.82." The transferor proceeded in the Deed to state: "Now, therefore, I hereby cede and transfer all rights and title in full and free property, State, however reserving its rights, to and on behalf of, Michael Mangena [the first respondent] and Brenda Jabulile Mangena [the second respondent] married in community of property to each other."

[3]

It is this Title Deed, in the names of the first and second respondents, that the applicant seeks to have cancelled as envisaged in section 6 of the Deeds Registries Act 47 of 1937. The applicant, Gordon Sebatana, is the uncle of the first respondent.

[4]

On the papers, there is an apparent dispute about the extent to which house 1687A Naledi Township and Erf 2800 Naledi are one and the same property. In paragraph 5 of the Answering Affidavit at page 47, having just referred to "the property known as 1687A Naledi Township", and having just defined it as "the Property", the first respondent states: "I deny that the property is also known as 2800 Naledi Township".

[5]

Furthermore, after dealing with the status of the first and second respondents as the holders of the Deed with respect to Erf 2800 Naledi Township, and after having

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identified this property as being the same as house number 1687A Naledi Township, the applicant in the founding papers proceeds to allege that enquiries from the Deeds Registries Office revealed that the first respondent had also acquired ownership of "the house neighbouring our property, it being house number 1687B", and in this regard the results of a "Windeed" enquiry are attached to the papers, which indicate the first and second respondents to be the two owners of Erf 1687 Naledi, the Title Deed number of which is TE23977/1994. Also attached to the founding papers in this regard is a "Certificate of Ownership" executed on 20 July 1993 with the Title Number: TE 23977/1994, which certifies the first and second respondents, also in terms of section 13 of Act 112 of 1991, as the owners of Erf 1687 Naledi Township, held by Deed of Transfer T43958/91.

[6]

It may be noted that the Deed of Transfer Title number on the second page of the Certificate of Ownership in relation to Erf 1687 Naledi is the same Title number as that which relates to the Transfer Deed executed in 2000 and registered in 2001 with respect to Erf 2800 Naledi.

[7]

The Answering Affidavit for its part responds to the allegations that the 1993 Certificate relates to the "neighbouring property" by denying this and by stating as follows in paragraph 26.2 on page 53: "I deny that I have ownership of the neighbouring property being 1687B and wish to point out that Annexure "GS4" is an exact replication of Annexure "GS3", which demonstrate [sic] I am the owner of 1687A only. I annexure [sic] a plan of the street layout to demonstrate 1687A enclosed marked "JJ"." This Annexure "JJ", which appears on page 82 of the papers, on the face of it suggests that Erf 1687 is adjacent to Erf 2800 and that the two are roughly the same size, thereby compounding the potential confusion.

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[8]

In the rest of the answering papers, and when read together with the replying papers, it is tolerably clear, however, that it is common cause that the Property, namely house 1687A to which the residential permits of the applicant's late mother (discussed in detail below) relate, is in fact the Property in respect of which the first and second respondents obtained a Deed of Transfer registered in April 2001 and referred to above, with respect to 2800 Naledi.

[9]

Furthermore, the Answering Affidavit makes it clear that the version of the first and second respondents is that the Certificate of Ownership executed on the 20th July 1993 and apparently registered on the 1st June 1994 with respect to Erf 1687 Naledi Township relates to one and the same property, namely house 1687A Naledi, the Property, the subject matter of the dispute between the parties. It may also be noted that the Form 3 claim form dated 24 January 2000, which the respondents say preceded the execution of the Deed of Transfer in 2000, refers to a property identified as "New Stand 2800" and "House No. 1687A", Naledi.

[10]

Mr Mnyandu, who appeared for the applicant, and Mr Essop, who appeared for the first and second respondents, were ad idem before me that there was one property only at issue, and that was house 1687A Naledi, Stand 2800 Naledi, to which all the documentation in the papers must be taken to relate, in particular the permits that specifically refer to house 1687A, the Certificate of Ownership that refers to Erf 1687 Naledi (executed in 1993) and the Title Deed of Transfer executed in 2000 and registered in 2001 that refers to Erf 2800 Naledi.

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[11]

It is disconcerting that the allegations in the papers (especially the answering papers) create far more confusion than elucidation with respect to the factual position, particularly as regards the documentary facts and the administrative history with respect to the Property in question. The founding papers comprise a degree of understandable speculation about what occurred behind the scenes with respect to such documents the first respondent appears to have obtained with respect to the Property, and allege that a fraud must have occurred, whereas the answering papers contain a remarkable degree of paucity of information, generality, vagueness and at times contradiction with regard to the critical facts.

[12]

Despite citation of the various state entities as respondents, and service upon them by means of returns of service from the sheriff, which to my scrutiny appear to suggest proper service upon responsible people at the relevant State respondents, there has been no response from any of these respondents to the proceedings at all. The third respondent is the City of Johannesburg Metropolitan Municipality, its alleged status as successor to the transferor in the 1993 Certificate and the 2000 Deed not being placed in issue, and apparently correctly so. The fourth respondent is the Director-General for the Department of Local Government and Housing, Province of Gauteng and the fifth respondent the MEC for the Department of Local Government and Housing, Province of Gauteng, whose alleged status as the entities charged with the administration of the relevant (assigned) legislation is also not in issue, again apparently correctly so. The sixth respondent is the Registrar of Deeds (Johannesburg), charged with the custody and administration of the Title Deeds at issue in this application.

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[13]

The Answering Affidavit contains the following statements in paragraph 33: "I am certain that the Director-General then lodged with the Sixth Respondent being the Registrar of Deeds all the necessary documents for registration purposes. I have no doubt the Sixth Respondent would be filing the their affidavits [sic]. In the event the Sixth Respondent does not file any papers I seek the leave of the court to supplement this affidavit which I am presently deposing to".

[14]

There was no suggestion from Mr Essop that any supplementing was desired and the parties were ad idem before me that I could accept that the relevant State respondents had been properly served and notified and were simply abiding the outcome of the application. I refer henceforth to the first and second respondents as "the respondents", save where identification of the State respondents is necessary.

[15]

I should also note that Mr Essop made it clear that the attitude of the respondents was that a referral to trial of the application would be inappropriate, and that if there were factual disputes that could not be resolved on the papers, and I were not inclined to dismiss the application as a result, then a referral to an "inquiry" such as demanded by the applicant (about which I say more below) would be more appropriate than a referral to trial. This was also the attitude adopted by Mr Mnyandu for the applicant.

[16]

Whether and to what extent the kind of "inquiry" demanded by the applicant is competent or appropriate in the present circumstances is dealt with below. Suffice it to say that I am left with the evidence on the affidavits, applying the principles applicable to motion proceedings, supplemented and at times qualified by what the

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parties were content to make common cause between them in argument before me, as the basis upon which to adjudicate the matter.

[17]

I mention this specifically because it became clear to me in preparing this judgment that the whole premise of the debate in the papers, and of the debate as it developed in argument before me, ably as such argument was certainly conducted, was flawed in a material respect. The problem relates to the applicability of section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81...