Molokomme and Another v Premier of the North-West Province and Others (1/2000) [2000] ZANWHC 8 (5 June 2000)

1/2000

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

EMANUEL

JOHN THABO MOLOKOMME 1ST

APPLICANT

REGINA

GAOLATLHE MOLOKOMME 2ND

APPLICANT

and

THE PREMIER OF NORTH WEST PROVINCE 1ST

RESPONDENT

ERNEST

SEONYATSENG KGASOE 2ND

RESPONDENT

GA-RANKUWA

TOWN COUNCIL 3RD

RESPONDENT

______________

JUDGMENT

MOGOENG J.

INTRODUCTION

[1] This is an application for an order (i) declaring that the Applicants are entitled to a preferential right to purchase a certain house at Ga-Rankuwa and to have it registered in their names and (ii) that the third Respondent be ordered to uplift its resolution barring them from acquiring ownership of the said house.

THE

BACKGROUND [2] During 1985 the Applicants applied for the right to occupy house number 2281, Ga-Rankuwa 8, Registration Division JQ (“the house”). A certificate of occupation was duly issued in their favour. The entire process including the terms and conditions of occupation was governed by the Black Administration Regulations: Townships in Black Areas made by Proclamation 293 of 1962 (“the Proclamation”). [3] From 1988 until 1997 the Applicants, who were staying in Johannesburg over that period, had sublet the house to the second Respondent.

This constituted a contravention of regulations 11, 23(1)(a)(i) and (iii) of chapter 2 of the Proclamation. [4] In 1995 the Applicants advised the second Respondent to look for alternative accommodation since they intended returning to Ga-Rankuwa. The second Respondent refused to do so. Instead he initiated a process to have the house registered in his own names. As a result a dispute arose between the Applicants and the second Respondent. This in turn led to several meetings being held between the parties and the third Respondent in an attempt to resolve the matter. It came to light that the third Respondent had not been paid the monthly rental and other municipal charges since 1988.

THE

BACKGROUND

[2] During 1985 the Applicants applied for the right to occupy house number 2281, Ga-Rankuwa 8, Registration Division JQ (“the house”). A certificate of occupation was duly issued in their favour. The entire process including the terms and conditions of occupation was governed by the Black Administration Regulations: Townships in Black Areas made by Proclamation 293 of 1962 (“the Proclamation”).

[3] From 1988 until 1997 the Applicants, who were staying in Johannesburg over that period, had sublet the house to the second Respondent.

This constituted a contravention of regulations 11, 23(1)(a)(i) and (iii) of chapter 2 of the Proclamation.

[4] In 1995 the Applicants advised the second Respondent to look for alternative accommodation since they intended returning to Ga-Rankuwa. The second Respondent refused to do so. Instead he initiated a process to have the house registered in his own names. As a result a dispute arose between the Applicants and the second Respondent. This in turn led to several meetings being held between the parties and the third Respondent in an attempt to resolve the matter. It came to light that the third Respondent had not been paid the monthly rental and other municipal charges since 1988.

[5] On 08 April 1999 yet another meeting was held between the parties and three senior officials of the third Respondent including its Chief Executive Officer. It was agreed that the Applicants and the second Respondent would be given an equal opportunity to acquire ownership of the house subject to the payment of the outstanding rental, municipal charges and presumably the purchase price. [6] Pursuant to the aforegoing, the Applicants paid the arrears. Thereafter, they applied to purchase the house and for the Deed of Grant which would be proof of ownership of the house. For some strange reason the Applicants seem to believe that they are entitled to have ownership of the house transferred to them notwithstanding the fact that they have not paid a single cent at least as a deposit for the purchase of the house. In any event no agreement of sale has been entered into yet. Be that as it may, ownership has not been transferred to the Applicants. [7] What has since happened is that the third Respondent has caused a so-called interdict to be registered over the property to prohibit transfer of the said house to the Applicants. Representations were made by the Applicants’ legal representatives to have that interdict uplifted but it was all in vain. [8] What appears to have happened is that after the aforementioned decision was taken in a meeting of 08 April 1999, that decision was tabled before the third Respondent for ratification. The latter refused to ratify the decision and further endorsed resolutions previously taken on an unspecified date in favour of the second Respondent. This led the Applicants to bring the application now before me.

[5] On 08 April 1999 yet another meeting was held between the parties and three senior officials of the third Respondent including its Chief Executive Officer. It was agreed that the Applicants and the second Respondent would be given an equal opportunity to acquire ownership of the house subject to the payment of the outstanding rental, municipal charges and presumably the purchase price.

[6] Pursuant to the aforegoing, the Applicants paid the arrears. Thereafter, they applied to purchase the house and for the Deed of Grant which would be proof of ownership of the house. For some strange reason the Applicants seem to believe that they are entitled to have ownership of the house transferred to them notwithstanding the fact that they have not paid a single cent at least as a deposit for the purchase of the house. In any event no agreement of sale has been entered into yet. Be that as it may, ownership has not been transferred to the Applicants.

[7] What has since happened is that the third Respondent has caused a so-called interdict to be registered over the property to prohibit transfer of the said house to the Applicants. Representations were made by the Applicants’ legal representatives to have that interdict uplifted but it was all in vain.

[8] What appears to have happened is that after the aforementioned decision was taken in a meeting of 08 April 1999, that decision was tabled before the third Respondent for ratification. The latter refused to ratify the decision and further endorsed resolutions previously taken on an unspecified date in favour of the second Respondent. This led the Applicants to bring the application now before me.

AN

ANALYSIS OF THE ISSUES Contravention of the Regulations and the Interdict [9] The letter of the Chief Executive Officer dated 11 August 1999, which was a response to representations made by the Applicants’ attorneys, conveys the third Respondent’s final word in the matter in the following terms: “ Kindly be informed that the matter of the upliftment of interdict was placed before the Council meeting of the 21st July 1999, whereupon the Council upheld the resolutions taken previously in favour of Mr Kgasoe as your client was in contravention of Regulation No. 11 of Chapter 2 and Regulation No. 23(1)(a)(i)(iii) of Proclamation R293/62 as well as Regulation No. 23(2)(d) of Proclamation R293/62 as amended.” [10] I have already indicated that Regulation 11 relates to the subletting of a house without the permission of the town council. It is necessary to highlight the provisions of Regulation 23(1)(a)(i) and (iii) as well as 23(2)(d). They read as follows: “23(1) A certificate may be cancelled - (a) by the manager on the holder of such certificate - (i) failing to pay any sum for which he may be liable in terms of this chapter within one month of the date on which such sum become due and payable; . . .

AN

ANALYSIS OF THE ISSUES

Contravention of the Regulations and the Interdict

[9] The letter of the Chief Executive Officer dated 11 August 1999, which was a response to representations made by the Applicants’ attorneys, conveys the third Respondent’s final word in the matter in the following terms:

“ Kindly be informed that the matter of the upliftment of interdict was placed before the Council meeting of the 21st July 1999, whereupon the Council upheld the resolutions taken previously in favour of Mr Kgasoe as your client was in contravention of Regulation No. 11 of Chapter 2 and Regulation No. 23(1)(a)(i)(iii) of Proclamation R293/62 as well as Regulation No. 23(2)(d) of Proclamation R293/62 as amended.”

[10] I have already indicated that Regulation 11 relates to the subletting of a house without the permission of the town council. It is necessary to highlight the provisions of Regulation 23(1)(a)(i) and (iii) as well as 23(2)(d). They read as follows:

“23(1) A certificate may be cancelled -

(a) by the manager on the holder of such certificate -

(i) failing to pay any sum for which he may be liable in terms of this chapter within one month of the date on which such sum become due and payable;

. . .

(iii) abandoning or failing to occupy the unit referred to in such certificate for a period in excess of two months, unless he shall have obtained prior permission in writing from the superintendent to absent himself in excess of the said period;” Regulation 23(2)(d) relates to the question of a deed of grant of ownership which was fraudulently obtained being declared forfeited and reverting unconditionally to the Trust. [11] (a) With regard to Regulation 23(2)(d), it is difficult to understand why the third Respondent purported to rely on it since there is no deed of grant of ownership in respect of the residential unit which is the subject-matter of discussion, let alone an allegation of fraud in respect of such deed of grant. (b) Regulation 23(1)(a)(i) and (iii) is clearly relevant. The Applicants had failed to pay rental and other municipal charges not merely for one month, but for about 13 years. Furthermore, they had not been occupying the house in question for the same period. This is a contravention of Regulation 11 read with Regulation 23(1)(a)(i) and (iii) which entitled the third Respondent to cancel the certificate of occupation. However, this does not appear to be what the third Respondent did. It chose to interdict the Applicants from acquiring ownership of the house. My attention was unfortunately not drawn to a Regulation or Act which vests such powers on the third Respondent. I have read the Proclamation but could not find the Regulation in question.

(iii) abandoning or failing to occupy the unit referred to in such certificate for a period in excess of two months, unless he shall have obtained prior permission in writing from the superintendent to absent himself in excess of the said period;”

Regulation 23(2)(d) relates to the question of a deed of grant of ownership which was fraudulently obtained being declared forfeited and reverting unconditionally to the Trust.

[11] (a) With regard to Regulation 23(2)(d), it is difficult to understand why the third Respondent purported to rely on it since there is no deed of grant of ownership in respect of the residential unit which is the subject-matter of discussion, let alone an allegation of fraud in respect of such deed of grant.

(b) Regulation 23(1)(a)(i) and (iii) is clearly relevant. The Applicants had failed to pay rental and other municipal charges not merely for one month, but for about 13 years. Furthermore, they had not been occupying the house in question for the same period. This is a contravention of Regulation 11 read with Regulation 23(1)(a)(i) and (iii) which entitled the third Respondent to cancel the certificate of occupation. However, this does not appear to be what the third Respondent did. It chose to interdict the Applicants from acquiring ownership of the house. My attention was unfortunately not drawn to a Regulation or Act which vests such powers on the third Respondent. I have read the Proclamation but could not find the Regulation in question.

[12] What I have been told is that a resolution was passed by the third Respondent in favour of Kgasoe. I was, however, not told what the nature and effect of that resolution is. I also do not know whether the Applicants have merely been barred from acquiring ownership of the house without cancelling their certificate of occupation or whether the certificate was in fact cancelled in terms of Regulation 23(1)(a)(i) and (iii). [13] In conclusion, I am satisfied that the Applicants have contravened the Regulations in a manner that entitled the third Respondent to act against them. These regulations, Regulation 23 in particular, entitle the third Respondent to deny the Applicants their occupational rights by cancelling their certificate of occupation. The third Respondent does not, however, seem to have the right to interdict the Applicants from acquiring ownership. A cancellation of the certificate of occupation would, if effected, have had the same effect as the so-called interdict and that is the step they ought to have considered. What is the impact of the repeal of chapter 2 of the Proclamation?

[12] What I have been told is that a resolution was passed by the third Respondent in favour of Kgasoe. I was, however, not told what the nature and effect of that resolution is. I also do not know whether the Applicants have merely been barred from acquiring ownership of the house without cancelling their certificate of occupation or whether the certificate was in fact cancelled in terms of Regulation 23(1)(a)(i) and (iii).

[13] In conclusion, I am satisfied that the Applicants have contravened the Regulations in a manner that entitled the third Respondent to act against them. These regulations, Regulation 23 in particular, entitle the third Respondent to deny the Applicants their occupational rights by cancelling their certificate of occupation. The third Respondent does not, however, seem to have the right to interdict the Applicants from acquiring ownership. A cancellation of the certificate of occupation would, if effected, have had the same effect as the so-called interdict and that is the step they ought to have considered.

What is the impact of the repeal of chapter 2 of the Proclamation?

[14] The North West Provincial Legislature passed the North West Local Government Amendment Act 7 of 1998 (“the Act”). Section 6 of this Act repealed the Proclamation in its entirety. The repeal became effective from the date of the promulgation of the Act, namely 31 July 1998. The constitutional validity of the repealing Act was challenged before me in the matter of DBV BEHUISING (PTY) LTD v NORTH WEST PROVINCIAL GOVERNMENT AND ANOTHER, Case No. 308/99, and a written judgment was delivered on 27 May 1999. I found that section 6 was constitutionally invalid to the extent that it purported to repeal chapters 1, 2, 3 and 9 of the Proclamation. Thereafter, the judgment was referred to the Constitutional Court in terms of section 172 of the Republic of South Africa Constitution Act 108 of 1996 for possible confirmation. The Constitutional Court confirmed my judgment partially in respect of chapter 1, wholly in respect of chapter 9 but declined to confirm it in respect of chapters 2 and 3 in the matter of DBV BEHUISING (PTY) LTD v NORTH WEST PROVINCIAL GOVERNMENT AND

ANOTHER [2000] ZACC 2; 2000 (4) BCLR 347 (CC). The effect of the non-confirmation of my order in respect of chapter 2 of the Proclamation is that this chapter was in fact properly repealed as at 31 July 1998. [15] The application now before me was not presented on the basis that chapter 2 was repealed nor were the implications of such repeal argued. It is therefore unnecessary for me to base my judgment on the repeal and the role, if any, of the Upgrading of Land Tenure Act 112 of 1991 and other relevant Acts have in this matter. [16] In any event Mr Stander ultimately submitted that the Applicants would seek an order uplifting the interdict and directing the Deputy Director General (“DDG”) for the Department of Local Government and Housing to consider the Applicants’ application for ownership. I am inclined to grant an order in these terms. However, the granting of such an order should in no way be misconstrued to mean that I intend to deprive the DDG of such discretionary powers as he may have in this regard. Consider should therefore be understood to mean that he may agree or refuse to grant them ownership of the house in question.

[14] The North West Provincial Legislature passed the North West Local Government Amendment Act 7 of 1998 (“the Act”). Section 6 of this Act repealed the Proclamation in its entirety. The repeal became effective from the date of the promulgation of the Act, namely 31 July 1998. The constitutional validity of the repealing Act was challenged before me in the matter of DBV BEHUISING (PTY) LTD v NORTH WEST PROVINCIAL GOVERNMENT AND ANOTHER, Case No. 308/99, and a written judgment was delivered on 27 May 1999. I found that section 6 was constitutionally invalid to the extent that it purported to repeal chapters 1, 2, 3 and 9 of the Proclamation. Thereafter, the judgment was referred to the Constitutional Court in terms of section 172 of the Republic of South Africa Constitution Act 108 of 1996 for possible confirmation. The Constitutional Court confirmed my judgment partially in respect of chapter 1, wholly in respect of chapter 9 but declined to confirm it in respect of chapters 2 and 3 in the matter of DBV BEHUISING (PTY) LTD v NORTH WEST PROVINCIAL GOVERNMENT AND

ANOTHER [2000] ZACC 2; 2000 (4) BCLR 347 (CC). The effect of the non-confirmation of my order in respect of chapter 2 of the Proclamation is that this chapter was in fact properly repealed as at 31 July 1998.

[15] The application now before me was not presented on the basis that chapter 2 was repealed nor were the implications of such repeal argued. It is therefore unnecessary for me to base my judgment on the repeal and the role, if any, of the Upgrading of Land Tenure Act 112 of 1991 and other relevant Acts have in this matter.

[16] In any event Mr Stander ultimately submitted that the Applicants would seek an order uplifting the interdict and directing the Deputy Director General (“DDG”) for the Department of Local Government and Housing to consider the Applicants’ application for ownership. I am inclined to grant an order in these terms. However, the granting of such an order should in no way be misconstrued to mean that I intend to deprive the DDG of such discretionary powers as he may have in this regard. Consider should therefore be understood to mean that he may agree or refuse to grant them ownership of the house in question.

[17] The Applicants did not succeed in their main prayer. No basis exist for an order for costs to be made against the second Respondent. On the other hand the Respondents did not oppose this application. I cannot, therefore, order costs against any Respondent. In the result I make the following order: (1) The Deputy Director General for the Department of Local Government, Housing, Planning and Development is directed to consider the Applicants’ application for ownership of house number 2281, Ga-Rankuwa 8, JQ; (2) The ‘interdict’ imposed by the third Respondent against the Applicants on the aforementioned house is uplifted; (3) There will be no order as to costs. M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT

DATE OF HEARING : 18 MAY 2000

DATE OF JUDGMENT : 05 JUNE 2000

COUNSEL FOR APPLICANT : ADV J. STANDER

ATTORNEYS FOR APPLICANT : HACK STUPEL & ROSS c/o SMITH STANTON MOTLHABANI INC.

[17] The Applicants did not succeed in their main prayer. No basis exist for an order for costs to be made against the second Respondent. On the other hand the Respondents did not oppose this application. I cannot, therefore, order costs against any Respondent. In the result I make the following order:

(1) The Deputy Director General for the Department of Local Government, Housing, Planning and Development is directed to consider the Applicants’ application for ownership of house number 2281, Ga-Rankuwa 8, JQ;

(2) The ‘interdict’ imposed by the third Respondent against the Applicants on the aforementioned house is uplifted;

(3) There will be no order as to costs.

M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT

DATE OF HEARING : 18 MAY 2000

DATE OF JUDGMENT : 05 JUNE 2000

COUNSEL FOR APPLICANT : ADV J. STANDER

ATTORNEYS FOR APPLICANT : HACK STUPEL & ROSS

c/o SMITH STANTON MOTLHABANI INC.

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