Mkhize v Jonkers and Others (1387/2019) [2020] ZANCHC 89 (4 December 2020)

Mkhize v Jonkers and Others (1387/2019) [2020] ZANCHC 89 (4 December 2020)

The court held that the first sale between the Applicant and the First Respondent was null and void as it contravened section 10A(1) of the Housing Act. The act of vacating the property by the First Respondent did not, in itself, trigger the deeming provision in section 10A(3), as 'sell or otherwise alienate' requires transfer of ownership, not mere surrender of possession. The consent granted by the provincial housing department for the second sale is an administrative act and remains valid until reviewed and set aside. The Applicant failed to establish fraud or fraudulent non-disclosure in the obtaining of consent for the second sale. Consequently, the second sale and transfer to the...

Citation
[2020] ZANCHC 89
Parties
Applicant: Mkhize Sboniso; Respondent: Jonkers Ladia; Respondent: Ngcaluza Joseph; Respondent: Ngcaluza Pandronomia Anna; Respondent: Registrar of Deeds; Respondent: MEC for Human Settlements, Water and Sanitation, Northern Cape; Respondent: Dawid Kruiper Local Municipality
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
4 December 2020
Case Number
1387/2019
Procedural Posture
Review Application / Final Judgment on Application to Set Aside Sale and Transfer of State Subsidized Property
Outcome
Application dismissed. First Respondent ordered to pay costs.
Judges
N Mayet
Legal Topics
Housing Act Section 10a, State Subsidised Housing, Right of Pre Emption, Fraudulent Non Disclosure, Administrative Review, Transfer of Ownership
Land and Property Administrative Law Housing Act Section 10a State Subsidised Housing Right of Pre Emption Fraudulent Non Disclosure Administrative Review Transfer of Ownership

Case Brief

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Parties

Mkhize Sboniso

Applicant

Jonkers Ladia

Respondent

Ngcaluza Joseph

Respondent

Ngcaluza Pandronomia Anna

Respondent

Registrar of Deeds

Respondent

MEC for Human Settlements, Water and Sanitation, Northern Cape

Respondent

Dawid Kruiper Local Municipality

Respondent

Procedural Posture

Review Application / Final Judgment on Application to Set Aside Sale and Transfer of State Subsidized Property

Legal Issues

  1. 1 Whether the sale and transfer of a state-subsidized house in contravention of section 10A(1) of the Housing Act triggers the deeming provision in section 10A(3).
  2. 2 Whether the provincial housing department is deemed to be the owner of the property when the registered owner vacates the property in breach of section 10A(1).
  3. 3 Whether the consent granted for the second sale is tainted by fraud or fraudulent non-disclosure and should be set aside.

Ratio Decidendi

The court held that the first sale between the Applicant and the First Respondent was null and void as it contravened section 10A(1) of the Housing Act. The act of vacating the property by the First Respondent did not, in itself, trigger the deeming provision in section 10A(3), as 'sell or otherwise alienate' requires transfer of ownership, not mere surrender of possession. The consent granted by the provincial housing department for the second sale is an administrative act and remains valid until reviewed and set aside. The Applicant failed to establish fraud or fraudulent non-disclosure in the obtaining of consent for the second sale. Consequently, the second sale and transfer to the...

Court Disposition

Application dismissed. First Respondent ordered to pay costs.

Orders

  • The application is dismissed.
  • The First Respondent is ordered to pay the costs of the application.