Toho v Diepmeadow City Council and Another

• Jurisdiction: South Africa
• Judge: Stegmann J
• Judgment Date: 24 February 1993
• Citation: 1993 (3) SA 679 (W)
• Hearing Date: 29 July 1992
• Court: Witwatersrand Local Division

Stegmann, J.:

The applicant, Mr Enoch Toho, has claimed that he is the statutory lessee in terms of s 6(1)(a) of the Conversion of Certain Rights E to Leasehold Act 81 of 1988, and that the first respondents ('the City Council of Diepmeadow') are the statutory lessors of 'the site or accommodation concerned' and described as 'House 7525A in Zone 3, Township of Diepkloof'. The applicant has been represented in these proceedings by Mr M S Navsa. The applicant's claim has been disputed by the first F respondents, who have claimed in turn to have cancelled the right of occupation of House 7525A which it is common cause that the applicant once enjoyed. The first respondents have been represented by Miss C Ableman.

In these circumstances the applicant prays, first, for a declaratory order that the first respondents' purported cancellation of his right of occupation of House 7525A was unlawful and invalid; secondly, for a declaration

G 'that the applicant is entitled to continue to reside on the property on the terms and conditions existing at the date of the purported cancellation of the right of occupation of the applicant';

thirdly, for a mandatory interdict directing the first respondents to amend their records to reflect the applicant as the statutory lessee of the property; and, fourthly, for costs. H

The first respondents contend that their notice to vacate, dated 11 April 1989 and directed to the applicant, validly terminated the applicant's right of occupation of House 7525A with effect from 11 May 1989; that they have lawfully granted a right of occupation of House 7525A to the second respondent, Mrs Zephoro Toho, with effect from 23 May 1989; I that on 15 November 1989 they lawfully sold the leasehold of the property to the second respondent; and that on 7 December 1989 they lawfully granted the second respondent a further right of occupation of the same property.

In the alternative they contend that they have, by means of statements contained in their answering affidavits delivered on 17 February 1992, J validly given the applicant a month's notice of termination of such rights

Stegmann J

A of occupation of the property as he may have enjoyed when these proceedings were instituted.

Finally, in the course of argument, Miss Ableman developed a contention based on the assumption that the applicant had, as he claims, at one time become a statutory lessee of House 7525A in terms of s 6(1)(a) of the B Conversion to Leasehold Act 81 of 1988. Miss Ableman argued that the effect of s 6(2)(b) of that Act was that when such a lessee fails to pay rental he would ipso facto and ipso jure cease to be a lessee. She submitted that it has been shown as a matter of fact that the applicant failed to pay rental from June 1989 at latest, with the consequence that his statutory lease had terminated by the automatic operation of s 6(2)(b). C

Despite all of the first respondents' assertions, they ask merely for the dismissal of the application with costs. They have made no counterclaim for any order to establish the validity of the steps they have taken which are inconsistent with the rights claimed by the applicant.

The second respondent, Mrs Zephoro Toho, has been represented in these D proceedings by Miss L Zulberg. The second respondent has supported the applicant to the extent that she has contended in her affidavit that the first respondents' purported cancellation of the applicant's right of occupation of the property was invalid. Miss Zulberg, arguing on behalf of the second respondent, also adopted the contention advanced by Miss E Ableman, on behalf of the first respondents, to the effect that the applicant became a statutory lessee under s 6(1)(a) of the Conversion to Leasehold Act 81 of 1988 and then, by failing to pay rent as from June 1989 at latest, forfeited his statutory lease by virtue of s 6(2)(b) and so lost his right to continue to reside on the property.

F In the alternative, Miss Zulberg contended that the second respondent presently enjoys, by virtue of s 6(1)(a) of the Conversion to Leasehold Act 1988, a joint right to reside on the property with the applicant and a joint right to an enquiry under s 2 with a view to the conversion of the joint right of occupation to a joint leasehold title. The second respondent therefore opposed the applicant's prayer for a mandatory G interdict requiring the first respondents to amend their records to reflect the applicant alone as the statutory lessee of the property. The second respondent has made no counterclaim for any order to establish the correctness of her view of the situation.

I have only to decide whether to grant or refuse the prayers sought by H the applicant. I am not called upon to make orders which will resolve the remaining disputed contentions in the matter.

It is common cause that on 3 November 1978 the West Rand Bantu Affairs Administration Board issued a residential permit to the applicant. It was issued in terms of reg 7 of chap 2 of the Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant I Matters published in Government Notice 1036 dated 14 June 1968, as amended from time to time. I shall refer to such regulations as 'the 1968 Residential Area Regulations' for short. They were made in terms of ministerial powers derived from s 38(8)(a) of the Blacks (Urban Areas) Consolidation Act 25 of 1945.

J The residential permit issued to the applicant reads:

Stegmann J

A 'The right to occupy the site described below is hereby granted to the holder and his dependants. House 7525A in Zone 3 Township Diepkloof Bantu Residential Areas.'

The permit specified the occupants as Enoch Toho, holder; Rebecca Toho, sister of holder; Mary Toho, sister of holder; Eunice Toho, niece of B holder.

One of the provisions of reg 7 of the 1968 Residential Area Regulations, in the original form it took when published on 14 June 1968, was that a residential permit issued under reg 7 expired on the last day of the month for which it was issued. However it could be renewed by the holder. One of C the ways of renewing it was to pay the rental for the next succeeding month and when the Administration Board accepted such rental it was deemed by the regulation to have renewed the permit for the month for which rental had been accepted. At the end of such month the permit would again expire unless again renewed, and so on.

In terms of Government Notice R1072 dated 25 May 1979, reg 7 was D replaced by a new reg 7, which gave a slightly more secure form of tenure. The new reg 7(10) provided that anyone who, when the new regulation came into force, was (like the applicant) already the holder of a residential permit under the previous reg 7, would be entitled to retain the right of occupation of the dwelling in question until such right was withdrawn in E terms of the regulations. The new reg 7(4) empowered the superintendent of the relevant residential area to cancel a residential permit on various grounds, including both non-payment of the monthly rental or any other sums due, and also the following ground:

'7(4)(a)(iii) (I)f the permit holder divorces his wife or is estranged from her or for any other reason does not F reside with that wife and dependants in the dwelling concerned and has not made arrangements to the satisfaction of the superintendent for the accommodation of that wife and her dependants.'

It is common cause that on 20 July 1983 the applicant and the second respondent were married to each other in community of property. The second G respondent naturally went to live with the applicant at House 7525A. They produced two children who, of course, also lived in the house. Curiously enough, the applicant did not have the names of his wife or their children added to those of his other dependants named in the residential permit relating to House 7525A.

H It is now suggested that, in the light of his experience in an earlier marriage, the applicant deliberately refrained from doing so, possibly in the belief that by that means he could ensure that he alone would enjoy a right of occupation and that the second respondent would only be able to stay in the house as long as he permitted her to do so, and that she would acquire no right of occupation of her own.

I I am not satisfied that any such motive on the part of the applicant has been established as a fact. But even if it was a fact, it does not seem to me to be a fact that is capable of influencing the relevant position in law.

The applicant and the second respondent were married in community of property. As a matter of law the applicant's right of occupation of House J 7525A was an asset which became an asset in the joint estate of the

Stegmann J

A applicant and the second respondent, even if the permit from which such right derived remained in the name of the applicant alone. Compare Persad v Persad and Another 1989 (4) SA 685 (D).

Mr Navsa at first contended that the Persad case was distinguishable on the basis that it was concerned with the division of assets in a joint B estate, and that in the present proceedings this Court is not called upon to decide any such question of division.

At a later stage, however, Mr Navsa conceded that, inasmuch as Didcott J had also decided in the Persad case that a right of occupation similar to that given to the present applicant in terms of his residential permit C dated 3 November 1978 became a joint asset of spouses married in community of property, despite the fact that the permit was in the name of the husband alone, the present matter could not be distinguished from the Persad case. In my view that concession was properly made. Neither Miss Ableman for the first respondents, nor Miss Zulberg for the second respondent, argued to the contrary.

D I therefore hold that, on the marriage of the parties in...