Mogege and Another v Mapuoa and Others (3989/2006) [2015] ZAFSHC 49 (10 March 2015)

Mogege and Another v Mapuoa and Others (3989/2006) [2015] ZAFSHC 49 (10 March 2015)

The court found that the transfer of the property to the defendants was unlawful because no proper inquiry was held by the municipality as required by the Conversion Act, and the plaintiffs, as lawful heirs and occupiers, were not notified or given an opportunity to participate. The first plaintiff was the sole executrix of the deceased estate, and the disposal of the property without her involvement was both unlawful and indicative of fraudulent conduct by municipal officials. The purported sale and registration in the defendants' names were contrary to the legislative scheme and null and void ab initio. The only appropriate remedy was to cancel the title deed and restore ownership to...

Citation
[2015] ZAFSHC 49
Parties
Plaintiff: Ruth Mogege; Plaintiff: Lamsley Mogege; Defendant: Tlhakodi Maaje Samson Mapuoa; Defendant: Mapino Mittan Mapuoa; Defendant: Mangaung Local Municipality; Defendant: Director Mangaung Local Municipality; Defendant: Registrar of Deeds (Free State); Defendant: Senior Magistrate, Civil Division for Bloemfontein (Mr H.F Fritz)
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 March 2015
Case Number
3989/2006
Procedural Posture
Civil Application / Unopposed Motion for Cancellation of Title Deed and Transfer of Property
Outcome
Application granted. The title deed registered in the defendants' names is declared null and void ab initio. The Registrar of Deeds is ordered to cancel the deed and register the property in the name of the first plaintiff. Costs awarded to the plaintiffs.
Judges
Mocumie
Legal Topics
Conversion of Rights to Leasehold, Deeds Registries Act, Unlawful Transfer, Fraudulent Registration, Intestate Succession
Land and Property Civil Procedure Conversion of Rights to Leasehold Deeds Registries Act Unlawful Transfer Fraudulent Registration Intestate Succession

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Parties

Ruth Mogege

Plaintiff

Lamsley Mogege

Plaintiff

Tlhakodi Maaje Samson Mapuoa

Defendant

Mapino Mittan Mapuoa

Defendant

Mangaung Local Municipality

Defendant

Director Mangaung Local Municipality

Defendant

Registrar of Deeds (Free State)

Defendant

Senior Magistrate, Civil Division for Bloemfontein (Mr H.F Fritz)

Defendant

Procedural Posture

Civil Application / Unopposed Motion for Cancellation of Title Deed and Transfer of Property

Legal Issues

  1. 1 Whether the transfer of the property to the defendants was lawful.
  2. 2 Whether the plaintiffs, as heirs, were entitled to the property under the Conversion of Certain Rights to Leasehold Act.
  3. 3 Whether the Registrar of Deeds should cancel the title deed registered in the defendants' names.

Ratio Decidendi

The court found that the transfer of the property to the defendants was unlawful because no proper inquiry was held by the municipality as required by the Conversion Act, and the plaintiffs, as lawful heirs and occupiers, were not notified or given an opportunity to participate. The first plaintiff was the sole executrix of the deceased estate, and the disposal of the property without her involvement was both unlawful and indicative of fraudulent conduct by municipal officials. The purported sale and registration in the defendants' names were contrary to the legislative scheme and null and void ab initio. The only appropriate remedy was to cancel the title deed and restore ownership to...

Court Disposition

Application granted. The title deed registered in the defendants' names is declared null and void ab initio. The Registrar of Deeds is ordered to cancel the deed and register the property in the name of the first plaintiff. Costs awarded to the plaintiffs.

Orders

  • It is declared that the Deed of Transfer in relation to Erf 3557 Chief Moroka crescent, Rocklands Mangaung Bloemfontein Township, Certificate of Township Title Number: TE 21650/99 is null and void ab initio.
  • The Registrar of Deeds (Bloemfontein, Free State) is ordered to cancel the Deed of Transfer referred to above.