Booysen v Matjie and Others (21283-12) [2013] ZAGPJHC 91 (27 March 2013)

NOT REPORTABLE

THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Case No: 21283-12

DATE:27/03/2013

In the matter between:

SHEILA MALESHOANE BOOYSEN (NEE matjie) …............................Applicant

And

MPOLOKENG MATJIE......................................................................................First Respondent

THE MASTER OF THE HIGH COURT

(JOHANNESBURG).........................................................................................Second Respondent

THE DIRECTOR GENERAL OF HOUSING

GAUTENG PROVINCE...................................................................................Third Respondent

THE MEC FOR HOUSING

GAUTENG PROVINCE....................................................................................Fourth Respondent

THE REGISTRAR OF DEEDS

(JOHANNESBURG).........................................................................................Fifth Respondent

Heard: 28 February 2013

Delivered: 27 March 2013

Summary: Declerator: cancellation of Title Deed and revocation of letter appointment of Executor of the estate. Applicant no locus standi- name cancelled from the residential permit.

judgment

Molahlehi AJ

[1] The applicant in this matter seeks an order in the following terms:

“1. An order revoking and cancelling “Letters of Authority” number 33092/2010 issued in the name of the First

Respondent, Mpolokeng Matjie,

2. An order cancelling the Title Deed Number 6121/2001, which holds the property known as ERF 900 Mapetla Township, Soweto and for the property to revert back to its original owner, the City of Johannesburg Metropolitan Municipality,

3. An order directing the Fifth Respondent, the Registrar of Deeds, Johannesburg, to cancel the Title Deed Number T6121/2001 and transfer back to the names of the original owner Nathaniel Matjie.

4. An order directing the Third Respondent, The Director General of Housing, Gauteng, to hold a hearing in terms of the provisions of Section 2 of the Conversion of Certain Rights of Leasehold or Ownership Act 81 of 1998 for the purpose of determining who should

ERF 900 Mapetla, be awarded to.”

[2] The application is opposed by the first respondent, Ms Mplokeng Matjie.

[3] The brief background of this matter is that the house which is the subject of this dispute was initially allocated to the applicant’s father during the 1960’s in terms of the Regulations Governing Control and Supervision of an Urban Bantu Residential Area and Relevant Maters CN 1036. The house is situated at Erf number 900, Mapetla Soweto and falls under the administration of the Johannesburg Metropolitan City.

[4] The certificate of occupation of the house was re-issued in 1973 and the following persons were in terms of the law as applicable then, entitled to reside in the house: Nathaniel Matjie- the father, Donald Matjie- the son, Ishmael Matjie- the son and Phillip Matjie- the son. The names Sheila, the applicant in the present proceedings and that of Yvone, are cancelled out of the certificate of occupation. This means that in terms of the certificate those whose names were cancelled could not claim any right to the house.

[5] It is common cause that except for the applicant and Ishmael all the siblings of Mr Nathaniel Matjie predeceased him, including his wife. Mr Matjie was survived by the applicant and Ishmael.

[6] The applicant testifies in the founding affidavit that upon the death of their father the family agreed that Ishmael would remain in the house. Ishmael remained in the house until his death during 2010. At the time of his death Ishmael had a son known as Shaun, who is currently staying with the applicant.

[7] The applicant says that upon the death Ismael she decided to take control of the family house and it was for that reason that she approached the Master of Supreme Court to seek authority to administer the estate of the late Ishmael. She was surprised to discover that the first respondent had already obtained “Letters of Authority” appointing her as the executor of the estate.

[8] It is common cause that the first respondent is the daughter of Ishmael. The first respondent says that her deceased mother was married to Ishmael in terms of customary law. It is further common cause that the house in question was subsequent to the death of Nathaniel registered in the name of Ishmael.

[9] The applicant contends that she was not consulted before the house was registered in the name of Ishmael and therefore the registration was fraudulent.

The issue

[10] This matter turns around the question of whether the applicant has locu standi to institute these proceedings either on her own behalf or on behalf of the minor child of the deceased, Ishmael.

Evaluation and analysis

[11] In dealing with the issue of locus standing the Court in Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd,1 held that:

“. . . any person can bring an action to vindicate a right which he possesses (interesse) whatever that right may be and whether he suffers special damage or not, provided he can show that he has a direct interest in the matter and not merely the interest which all citizens have."

[12] It was conceded on behalf of the applicant that she does not have locus standi to institute the proceedings in her own right because her name was removed from the certificate of occupation after her marriage.

However, the applicant’s counsel persisted that the Court should despite this grant the relief sought by the applicant. It was argued on behalf of the applicant that she was entitled to the relief because the Director: General of the Department of Housing did not hold an inquiry before he granted Ishmael the right of ownership of the house as required by the provisions of the Conversion of Certain Rights into Lease Hold or Ownership Act of 1998 (the Act). In terms of section 4 of the Act the Director General has the power to declare a person who satisfies certain requirements to qualify to be granted the property that appears on the site permit or certification of occupation of the land or a house. Once the person has been declared to satisfy the requirements of the Act, the Director General may transfer the property into the name of that person.

[13] In contending that the applicant was entitled to the relief despite lack of locus standi, the applicant relied on the authority of Kuzwayo v Representative of the Executive of the late Masilela,2 where the Court found that the land transferred without the Director General holding the inquiry as required by the Act, was not properly transferred.

[14] The facts of the above case is distinguishable from the present in that in that case the Court made the following findings:

“[26] Section 2, 4 and 5 of the Conversion Act do not confer a right of ownership on a site permit holder and occupier. But section 2 does require the Director- General to identify the person who is in occupation of the site (in accordance with the records of the local authority) and after inquiry, declare that that person has the right to acquire ownership. In my view, the Estate, as holder of the site permit, was entitled to ask the court for an order cancelling the transfer to Kuzwayo who was neither a permit holder nor occupier of the site.’’

[15] It was on the basis of the above that the Court also found that it had the power in terms of the section 6 of the Deeds Registries Act to order cancelation of the rights registered in Deeds Registry.

[16] In the present case the municipality records show that the name of the applicant was removed from the certificate of occupancy in 1976. She also does not dispute the appearance of Ishmael’s name on the certificate. She further does not challenge the legality and the legitimacy of Ishmael’s name on the certificate. She however, alleges that the transfer was done fraudulently by Ishmael.

[17] The applicant does not substantiate in what manner Ishmael fraudulently transferred the house to his name. The allegation bears no merit and accordingly provides no basis for interfering with the decision of the Director- General in transferring the house to Ishmael whose name at the time appeared in the municipal records as the occupier of the house and holder of the certificate.

[18] In light of the above the applicant does not, as it was also correctly conceded by her counsel, have locus standi to institute these proceedings. However, despite the concession regarding locus standi, the applicant’s counsel persisted that she was entitled to the relief sought in the papers. It was contended in this respect that the proceedings were instituted on behalf of the Ishmael’s minor child.

[19] It is trite that a minor child can institute legal proceedings in the following manner:-

in the name of the guardian representing the minor, in the minor’s name, assisted by the guardian, and through a curator ad litem.

[20] In the present instance there is no indication that the minor child has sought to assert any right with regard to the house or has complaint about the fact that the house was the registered in the name of the respondent. There is nothing in the papers that indicates that the applicant instituted these proceedings for and on behalf of the minor child. Accordingly, there is no basis for the contention that the proceedings were instituted for and on behalf of the minor child.

Order

[21] In the premises the applicant’s application is dismissed with costs.

_______________

Molahlehi AJ

Acting Judge of the South Gauteng High Court.

APPEARANCES

For the APPLICANT: Adv L Memela instructed by Gcwensa Attorneys

For the RESPONDENT: Mr J Van Schalwyk of Johannesburg Justice Centre.

1 1933 AD 87.

2 [2011] 2 All SA 599 (SCA).