Ngcobo and Others v Mathonsi and Others (685/2017) [2019] ZAKZDHC 32 (16 May 2019)

Ngcobo and Others v Mathonsi and Others (685/2017) [2019] ZAKZDHC 32 (16 May 2019)

The court found that the transfer of the property to the first respondent was unlawful as it was effected without the inquiry mandated by section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act. The deceased was the holder of the certificate of occupation, and upon his death, the property should have been transferred to his estate, not directly to the first respondent. The process followed excluded other beneficiaries listed in the certificate and failed to comply with statutory requirements. The court held that only after a proper inquiry and declaration by the Director-General could ownership be determined and transferred in accordance with intestate succession....

Citation
[2019] ZAKZDHC 32
Parties
Applicant: Thandi Florentine Ngcobo; Applicant: Mayvis Thembi Mathonsi; Applicant: Frieda Thembi Mathonsi; Respondent: Angel Bongiwe Mathonsi; Respondent: Ethekwini Municipality; Respondent: Registrar of Deeds for the Province of KwaZulu-Natal; Respondent: Master of the High Court
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 May 2019
Case Number
685/2017
Procedural Posture
Review Application / Judgment
Outcome
Application granted; transfer of property to first respondent set aside; inquiry and proper succession process ordered.
Judges
Radebe
Legal Topics
Conversion of Rights Act, Intestate Succession, Transfer of Property, Certificate of Occupation, Judicial Review
Land and Property Civil Procedure Conversion of Rights Act Intestate Succession Transfer of Property Certificate of Occupation Judicial Review

Case Brief

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Parties

Thandi Florentine Ngcobo

Applicant

Mayvis Thembi Mathonsi

Applicant

Frieda Thembi Mathonsi

Applicant

Angel Bongiwe Mathonsi

Respondent

Ethekwini Municipality

Respondent

Registrar of Deeds for the Province of KwaZulu-Natal

Respondent

Master of the High Court

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the transfer of the property into the name of the first respondent was lawful under the Conversion of Certain Rights into Leasehold or Ownership Act.
  2. 2 Whether an inquiry as required by section 2 of the Act was conducted before the transfer.
  3. 3 Whether the rights of other heirs and parties listed in the certificate of occupation were considered.

Ratio Decidendi

The court found that the transfer of the property to the first respondent was unlawful as it was effected without the inquiry mandated by section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act. The deceased was the holder of the certificate of occupation, and upon his death, the property should have been transferred to his estate, not directly to the first respondent. The process followed excluded other beneficiaries listed in the certificate and failed to comply with statutory requirements. The court held that only after a proper inquiry and declaration by the Director-General could ownership be determined and transferred in accordance with intestate succession....

Court Disposition

Application granted; transfer of property to first respondent set aside; inquiry and proper succession process ordered.

Orders

  • The transfer of the property to the first respondent is set aside.
  • The Registrar of Deeds is ordered to cancel the Deed of Grant No. TG027408/09 in respect of the property.