Ntshalintshali and Others v Sekano and Others (2014/31317) [2015] ZAGPJHC 123 (12 June 2015)

Ntshalintshali and Others v Sekano and Others (2014/31317) [2015] ZAGPJHC 123 (12 June 2015)

The court found that the property was registered in the names of the second respondent and her late husband as custodians for the family, based on the Family House Rights Agreement. The Housing Department's administrative error in failing to endorse the agreement against the title deed enabled the second respondent to sell the property without proper authority. No inquiry was held by the Director General as required by the Conversion of Certain Rights into Leasehold or Ownership Act, and the historical facts of registration were not investigated. Consequently, the registration of the property in the name of the first respondent was declared null and void. The court ordered cancellation of...

Citation
[2015] ZAGPJHC 123
Parties
Applicant: Sipho Ntshalintshali; Applicant: Cornelius Ntshalintshali; Applicant: Ncineleni Olga Ntshalintshali; Respondent: Tshepo Eugene Sekano; Respondent: Dineo Evelyn Ntshalintshali; Respondent: The Executor in the Estate Late Shoshozile Andrew Ntshalintshali; Respondent: The Director General of the Department of Housing, Gauteng Province; Respondent: The MEC of the Department of Housing, Gauteng Province; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: The Registrar of Deeds (Johannesburg)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 June 2015
Case Number
2014/31317
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted; title deed and leasehold certificate cancelled; property reverts to the City; inquiry to be held to determine rightful claimant; each party to pay own costs.
Judges
R Hertenberger
Legal Topics
Conversion of Rights to Ownership, Title Deed Cancellation, Family Rights Agreement, Administrative Error, Section 2 Inquiry, Custodianship of Property
Land and Property Administrative Law Conversion of Rights to Ownership Title Deed Cancellation Family Rights Agreement Administrative Error Section 2 Inquiry Custodianship of Property

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Parties

Sipho Ntshalintshali

Applicant

Cornelius Ntshalintshali

Applicant

Ncineleni Olga Ntshalintshali

Applicant

Tshepo Eugene Sekano

Respondent

Dineo Evelyn Ntshalintshali

Respondent

The Executor in the Estate Late Shoshozile Andrew Ntshalintshali

Respondent

The Director General of the Department of Housing, Gauteng Province

Respondent

The MEC of the Department of Housing, Gauteng Province

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

The Registrar of Deeds (Johannesburg)

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the sale of the property by the second respondent was valid given the existence of the Family House Rights Agreement.
  2. 2 Whether the title deed and certificate of leasehold should be cancelled due to administrative error and lack of proper inquiry.
  3. 3 Who is the rightful claimant to the property under the Conversion of Certain Rights into Leasehold or Ownership Act.

Ratio Decidendi

The court found that the property was registered in the names of the second respondent and her late husband as custodians for the family, based on the Family House Rights Agreement. The Housing Department's administrative error in failing to endorse the agreement against the title deed enabled the second respondent to sell the property without proper authority. No inquiry was held by the Director General as required by the Conversion of Certain Rights into Leasehold or Ownership Act, and the historical facts of registration were not investigated. Consequently, the registration of the property in the name of the first respondent was declared null and void. The court ordered cancellation of...

Court Disposition

Application granted; title deed and leasehold certificate cancelled; property reverts to the City; inquiry to be held to determine rightful claimant; each party to pay own costs.

Orders

  • The Registrar of Deeds, Johannesburg is ordered to cancel title deed T22913/2012 over Erf 768, Orlando East Township held by the first respondent.
  • The certificate of leasehold TL42572/2004 over Erf 768, Orlando East Township held by the second and third respondent is cancelled.