Ndaba v Thonga and Others (18674/2019) [2020] ZAGPJHC 404 (23 November 2020)

Ndaba v Thonga and Others (18674/2019) [2020] ZAGPJHC 404 (23 November 2020)

The court found that the transfer of the property at Erf 2039 Jabulani Township to the first respondent was invalid because it was effected without a proper inquiry as required by section 2 of Act 81 of 1988. The process of conversion to ownership under the Upgrading of Land Tenure Rights Act 112 of 1991 is automatic and does not constitute administrative action, thus a review is not required. However, the failure to conduct an inquiry involving all listed occupants deprived interested parties, including the applicant, of their rights. The applicant was a direct beneficiary and occupant at the relevant time and therefore has locus standi. The court ordered cancellation of the deed of...

Citation
[2020] ZAGPJHC 404
Parties
Applicant: Thobile Ronald Ndaba; Respondent: Zwelibango Lawrich Thonga; Respondent: Registrar of Deeds Johannesburg; Respondent: Director General- Gauteng Housing Province; Respondent: MEC for Gauteng Department, Housing
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 November 2020
Case Number
18674/2019
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The transfer of the property is declared invalid and the deed of transfer is to be cancelled. An inquiry is to be conducted to determine rightful claimants. Costs awarded against the first respondent.
Judges
Vukeya
Legal Topics
Conversion of Rights Act 81 1988, Upgrading of Land Tenure Rights Act 112 1991, Section 2 Inquiry, Automatic Conversion, Locus Standi
Land and Property Administrative Law Conversion of Rights Act 81 1988 Upgrading of Land Tenure Rights Act 112 1991 Section 2 Inquiry Automatic Conversion Locus Standi

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Parties

Thobile Ronald Ndaba

Applicant

Zwelibango Lawrich Thonga

Respondent

Registrar of Deeds Johannesburg

Respondent

Director General- Gauteng Housing Province

Respondent

MEC for Gauteng Department, Housing

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the transfer of the property is valid if done without an inquiry in terms of section 2 of Act 81 of 1988.
  2. 2 Whether cancellation and reversal of the deed of transfer should be ordered to allow an inquiry in terms of section 2 of Act 81 of 1988.
  3. 3 Whether the applicant has locus standi to prosecute the application.

Ratio Decidendi

The court found that the transfer of the property at Erf 2039 Jabulani Township to the first respondent was invalid because it was effected without a proper inquiry as required by section 2 of Act 81 of 1988. The process of conversion to ownership under the Upgrading of Land Tenure Rights Act 112 of 1991 is automatic and does not constitute administrative action, thus a review is not required. However, the failure to conduct an inquiry involving all listed occupants deprived interested parties, including the applicant, of their rights. The applicant was a direct beneficiary and occupant at the relevant time and therefore has locus standi. The court ordered cancellation of the deed of...

Court Disposition

Application granted. The transfer of the property is declared invalid and the deed of transfer is to be cancelled. An inquiry is to be conducted to determine rightful claimants. Costs awarded against the first respondent.

Orders

  • The second respondent is ordered to cancel the deed of transfer in respect of property situated at Erf 2039 Jabulani Township, Soweto Gauteng Province.
  • The third respondent is ordered to conduct an inquiry in terms of section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 involving all living occupants listed in the permit granted on 15/11/1983 to determine the rightful claimants of the property.