Kuzwayo v Representative of the Executor in the Estate of the Late Masilela (28/2010) [2010] ZASCA 167; [2011] 2 All SA 599 (SCA) (1 December 2010)

Kuzwayo v Representative of the Executor in the Estate of the Late Masilela (28/2010) [2010] ZASCA 167; [2011] 2 All SA 599 (SCA) (1 December 2010)

The Supreme Court of Appeal found that the transfer of the property to Kuzwayo was a clerical error, as she had relinquished her site permit and the property had been allocated to and occupied by Masilela for many years. The Director-General failed to conduct the required inquiry under the Conversion Act before declaring Kuzwayo the owner and effecting transfer. The Estate, as holder of the site permit, was entitled to seek cancellation of the transfer and to request an inquiry to determine the rightful owner. The court held that Sentinel, as representative of the executor, had locus standi to bring the application. The high court erred in ordering transfer to the Estate without an...

Citation
[2010] ZASCA 167
Parties
Appellant: Mvulazana Georgina Kuzwayo; Respondent: Representative of the Executor in the Estate of the Late Mbongeni Jonas Masilela; Respondent: K Mnyandu; Appellant: G Malindi SC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2010
Case Number
28/2010
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Lewis, Van Heerden, Maya, Shongwe, K Pillay
Legal Topics
Conversion of Rights Into Ownership, Rectification of Deeds Registry, Site Permit Entitlement, Administrative Inquiry, Locus Standi, Review of Administrative Action
Land and Property Civil Procedure Administrative Law Conversion of Rights Into Ownership Rectification of Deeds Registry Site Permit Entitlement Administrative Inquiry Locus Standi +1 more

Case Brief

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Parties

Mvulazana Georgina Kuzwayo

Appellant

Representative of the Executor in the Estate of the Late Mbongeni Jonas Masilela

Respondent

K Mnyandu

Respondent

G Malindi SC

Appellant

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court

Legal Issues

  1. 1 Whether the Registrar of Deeds should cancel the deed of transfer issued to the wrong person.
  2. 2 Whether the Director-General for Housing must conduct an inquiry to determine the rightful owner of the property under the Conversion Act.
  3. 3 Whether the representative of the executor had locus standi to bring the application.

Ratio Decidendi

The Supreme Court of Appeal found that the transfer of the property to Kuzwayo was a clerical error, as she had relinquished her site permit and the property had been allocated to and occupied by Masilela for many years. The Director-General failed to conduct the required inquiry under the Conversion Act before declaring Kuzwayo the owner and effecting transfer. The Estate, as holder of the site permit, was entitled to seek cancellation of the transfer and to request an inquiry to determine the rightful owner. The court held that Sentinel, as representative of the executor, had locus standi to bring the application. The high court erred in ordering transfer to the Estate without an...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including those of two counsel.
  • The Registrar of Deeds (Johannesburg) is ordered to cancel the title deed number T020450/2004 in respect of Erf 2000 Vosloorus, Gauteng Province, and to cancel all rights accorded to the first respondent by virtue of the deed.