Nyathikazi v Minister of Human Settlement and Others (18083/2015) [2018] ZAGPJHC 83 (16 March 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NUMBER: 18083/2015

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

16/3/2018

In the matter between:

ABEL LETIKI NYATHIKAZI Applicant

And

MINISTER OF HUMAN SETTLEMENT First Respondent

DIRECTOR GENERAL – DEPARTMENT OF

HUMAN SETTLEMENT Second Respondent

EKURHULENI METROPOLITAN MUNICIPALITY Third Respondent

REGISTRAR OF DEEDS Fourth Respondent

JUDGMENT

Molahlehi, J

Introduction

[1] The applicant seeks an order that the second respondent, the Director-General; Human Settlement, should register the immovable

property described as 6492 Zonkizizwe, Extension 2, Katlehong into his name at the deeds office. The costs of the registration of the transfer should, according to him be borne by the respondents.

[2] It is only that the third respondent the Ekurhuleni Metropolitan Municipality (the Municipality) that opposed the application.

The Applicant's case

[3] The applicant contends that he had qualified as the owner of stand 6492, Zonkizizwe, Extension 2, Katlehong (the property) because he has satisfied all the requirements of the Conversion of Certain Right into the Leasehold or Ownership Act[1] (the Conversion Act) and thus the property ought to have by now been registered in his name at the deeds office.

[4] The applicant contends that he qualified to be the owner of the property by virtue of the fact that he purchased the right to

occupancy the property from Mr Nkothe in 1996. After the conclusion of the sale agreement, Mr Nkothe left the property and the applicant remained the occupier.

[5] In 1998 he was made aware that he qualified to acquire ownership of the property in terms of the Conversion Act. And when he inquired from the Municipality about the application of the Act to his situation, he was referred to the Housing Transfer Bureau (the Housing Bureau) in Germiston.

[6] The applicant states that he was given forms at the Housing Bureau which he completed and after submitting them he received a receipt confirming that he had laid claim to the property in terms of the Conversion Act. He further states that:

"… The first respondent undertook to investigate my claim with the view to me acquiring ownership of the stand."

[7] On 25 September 1998 the third respondent issued a notice to the residents under its jurisdiction notifying those whose names appeared on the schedule accompanying the notice those who had made claims of ownership of property in terms of the Conversion Act should present themselves at its offices to confirm their details.

[8] On 25 January 1999, the Housing Bureau addressed a letter to the applicant which reads as follows:

"CONGRADULATIONS! Your claim for the house on ERF 6492 ZONKIZIZWE EXT 2 TOWNSHIP has been approved!

For the final step to get ownership of the house with the land on which it stands, please visit the Housing Bureau’s office to check that the draft title deed has the correct information. The agreement will then be signed by the Council and the transfer will be registered in your name in the Deeds Office. . . .

You may bring a family member or a friend to assist you, and of course you should show this letter to your employer if you need to ask for time off from work.”

[9] On 25 January 2010, the Department of Local Government and Housing placed a notice in the Daily Sun Newspaper informing members of the community about its desire to finalise the transfer of several properties in terms of the Conversion Act. The property which is the subject of the present dispute was included therein and was listed as the property to be transferred to the applicant. The publication was done in terms of Regulation 6 (2) (b) of the Conversion Act.

[10] The notice further indicated that the names which appeared therein were of those people who the Director General: Gauteng Provincial

Government intended to declare to have been granted a right to the leasehold or ownership in terms of the Conversion Act. After the publication, the applicant says he repeatedly inquired about progress with the authorities regarding the transfer of the property into his name to no avail. According to him no reasons were given as to why he was not given the title deed.

[11] It is for the above reasons that the applicant contends that good cause exists for the court to order the respondents to take all reasonable steps to have the property registered in his name.

Respondent's case

[12] The respondent’s answering affidavit is accompanied by an application for condonation for its late filing. The delay is essentially attributed to the difficulty of having to contact and arrange consultation with the relevant officials that may have dealt with the property. The applicant further stated that the period of the delay is not excessive having regard to the fact that the issue in dispute historically dates back 1998.

[13] It is trite that condonation for noncompliance with the time frames provided for in the rules is not a mere formality, which is there for the asking. A proper explanation that set out the reason and the details as to what caused the delay is required.

[14] The respondent does not, in its application deal with the issue of prospects of success which is one of the factors that needs to be dealt with in the application such as the present. It further states that the delay was caused by having to arrange for consultation with a number of officials. The names of those officials have not been mentioned and neither is there any indication as to when the consultation with them finally took place.

[15] The court will generally refuse an indulgence for the applicant in a condonation application which fails to deal with the factors relevant for the consideration of an application for condonation.

[17] It has been repeatedly stated in case law that ultimately the consideration in an application for condonation is whether it would serve the interest of justice to refuse or grant condonation.

[18] In the present case, the explanation for the delay is incomplete as indicated above it also does not deal with one of the important

factors concerning prospects of success.

[19] I am however of the view that because of the importance of this matter the interest of justice would require that condonation be granted.

[20] The applicant has raised the preliminary issue concerning the authority of the deponent to the answering affidavit to institute

legal proceedings on behalf of the defendant. The applicant has not raised the issue in terms of rule 7 of the Uniform Rules of the High Court (the Rules). The applicant has thus not complied with the requirements set out in Ganes and Another v Telecom Namibia Ltd.[2] For this reason only, the point stands to fail.

The respondent's case

[21] The first respondent contended that the property in question which measures 1229 m² was at all material times registered in its name. It further contended that in terms of the Ekurhuleni Town Planning Scheme, the property is zoned for "Social Services" which means that it is intended to be used for the benefit of the public.

[22] The case of the respondent is essentially that the applicant does not qualify to have the property registered in his name for the following reasons:

1. The property has at all material times been registered in its name.

2. The property has been zoned for "social services" and can be used for that purpose only.

3. The size of the property, being 1229 m² is indicative that the property was never intended to be a residential site. This is contrasted with the neighbouring stands which measures 200 and 227 m².

4. The previous occupier from whom the applicant says he bought the property from was never granted permission to occupy the property by the first respondent for the previous authority.

5. The invoice for payment of services which the applicant has attached to his papers cannot serve as a proof of ownership of the property.

6. The applicant has failed to produce proof of the sale of the property to him by the previous owner.

Legal principles

[23] The issue raised in this matter has to be understood within the historical context of the development of the law in respect of land ownership in urban areas, by "black people" in this country.

[24] In general people who were previously designated by the apartheid regime as "black people”, in urban areas in South Africa were prohibited from owning land or immovable property in such areas.

[25] A significant change in policy concerning ownership or possession of property for black people in urban areas was introduced during 1978 when the government introduced the 99 year leasehold over the properties in urban areas.

[26] The 99 year leasehold was replaced after its failure in 1986 by the Black Communities Development Act of 1984. And in 1988 the Conversion of Certain Rights into Leasehold or Ownership Act, (the Conversion Act)[3] was introduced to provide for full ownership of land in the urban areas to black people.

[27] The Conversion Act tasked the provincial administrators with the responsibility of converting rights which black people had acquired as occupants of immovable property in the urban areas into leasehold or ownership rights.

[28] The Conversion Act also sets out the process through which the rights of occupancy could be converted to ownership or leasehold. In terms of section 2 of the Conversion Act, the Director General of a provisional government is enjoined to:

“1. Conduct an inquiry in the manner prescribed by the Act to determine who had the right of occupation or possessed of the site permit of the affected property. The Director General of the province in order to determine, whether the affected site (i.e. the immovable property) falls in a formalized Township for which ownership registrar has been opened; and to if the requirements of the Conversion Act are satisfied to confirm ownership to those persons who qualify under the legislative enactment.”

[29] At the conclusion of the inquiry envisaged in section 2 of the Conversion Act, the Director-General has the power, if satisfied that the person concerned is the holder of one of the recognized rights, to award ownership of such property to such a person.

[30] Another important aspect in the process of converting the occupancy rights is the appeal process provided for in section 3 of the Conversion Act. In terms of that section, any aggrieved person has a right to appeal the decision of the Director-General which appeal is to be made to a competent court.

[31] Section 4 of the Conversion Act provides:

“4. Granting of leasehold or ownership.----(l) The Director-General shall upon the expiry of the period specified for appeal under section 3 (1) or, in the case of such appeal, on the confir­mation, variation or substitution of the determination referred to in section 2 (4), in the prescribed manner declare the person concerned to have been granted—

a) right of leasehold in respect of the affected siteconcerned under section 52 (1) of the principal Act, whereupon that person shall be deemed for all purposes to have been granted a right of leasehold under the said section 52 (1); or

b) in the case where the affected site is situate in a formalized township for which a township register has been opened,

ownership in respect of the affected site concerned.”

[32] Section 5 of the Conversion Act enjoins the Director-General once he or she has made a determination as to who the leaseholder or owner of the property is to register with the Registrar of Deeds the property concerned in the name of the new owner.

[33] The issue in this matter is whether the applicant has satisfied the requirements of the Conversion Act, such that he is entitled to have the property transferred and registered in his name.

Evaluation

[34] It seems apposite before dealing with the main issue to deal with the contention of the Municipality that the applicant is not qualify for the relief sought because the property was owned by it and is registered as such in the deeds office.

[35] This proposition is indeed correct because in the context of the historical legal development of ownership rights by black people in urban areas the land was only owned by government. It is thus understandable why the title deed would be in the name of the Municipality. This however does not detract from the provisions of the Conversion Act.

[36] In my view, the defence of the respondent is based on an issue which ought to have been raised during the process of the inquiry into the right of occupation of the property that led to the finding, firstly that the applicant was the rightful occupier of the land and after that advising him that it had been determined that he qualified to be the owner.

[37] The process embarked on by the Director-General and at some level by the Municipality was never challenged except for questioning the competency of the service provider who assisted with the inquiry. The Municipality never objected or raised its concern about the process. In other words, the Municipality has never reviewed the process which was conducted by the service provider.

[38] The case of the applicant is that he purchased the rights to occupation of the property from Mr Nkothe. There is no evidence that the Municipality did challenge that assertion during the Director-General's inquiry nor did it appeal against the findings

made by the Director-General in terms of s 3 of the Conversions Act. In fact on 28 September 1998 the service provider MMS employed by the Housing Transfer Bureau issued a notice which reads as follows:

" NOTICE TO THE OCCUPANTS OF THE UNDERMENTIONED SITE

The ERF number of the site which you occupied is shown in (1) below. A claim to acquire ownership of the site with benefits of the state's discount has been made by the person, (s) whose name (s) and identity number(s) are shown in (2).

Any other person who considered that they have justifiable claims to acquire ownership of the site, are hereby invited to make claims on the prescribed form at the Bureau Offices office in Zonkizizwe by not later than 25 October 1998, whereafter the process of identification and adjudication. (if disputed] will proceed).”

[39] The above notice was issued by the Gauteng Provincial Government which recorded the applicant as the occupant of the site in issue.

[40] It is clear that the notice recognized the applicant as the person who had the right to occupy the property. The important aspect of the notice for the purposes of this judgment is that it invited any other person who had a claim over the occupancy of the property by the applicant to submit an objection. This included the Municipality. It is evidently clear that it never raised any objection. It has also not pleaded that it was not aware of the process.

[41] During January 1999 the applicant received a letter from the MMS/ Housing Bereau congratulating him and informing him that his ownership of the property in question had been approved. He was further advised to visit the Housing Bureau to check that the draft title deed has the correct information. He was also advised that once that was done he would be registered as the owner of the property in the deeds office.

[42] On 5 January 2010 the Department of Local Government and Housing placed in the Daily Sun newspaper a notice which reads as follows:

"The Housing Bureau wishes to finalise the registration of the following transfers, but was unable to contact the claimant for to verify their personnel and stand details. In some instances Local Committees did not consider the claims but these have been finalized as well. If the information contained herein is incorrect, you should contact the housing the real office and then the contact number is provided [within one month from the date of this advertisement. Failing this, the properties will be registered using the information contained in this advertisement. Should the claimant be deceased, his or /her/defendants are kindly requested to contact the Housing Bureau at the contact details below."

[43] The name of the applicant appears amongst those listed in the schedule to the above notice.

[44] As indicated earlier in this judgment the Director –General who is the critical party in relation to determining who the occupant of the property was and declaring who the owner should be has not opposed this application.

[45] It is clear from the above facts and the analysis of the law that the opposition of the Municipality to have the property transferred and registered in the name of the applicant has no merits. It failed to exercise its right in terms of section 3 of the Conversion Act at the appropriate time.

[46] In my view, the applicant has made out a case justifying the relief sought in the notice of motion.

Order

[47] In the premises the following order is made:

The second respondent is ordered to take all steps necessary to transfer and register the property described as 649270 ZONKIZIZWE Extension 2 Katlehong into the name of the applicant at the deeds office.

The third respondent is to pay the cost of the suit.

E Molahlehi

Judge of the High Court, Johannesburg.

Representation:

For the Applicant: Adv. J Langa

Instructed by: Zehir Omar Attorneys

For the Respondent: Unknown

Instructed by: Nkosi Nkosana Inc

Heard on: 06 February 2018

Delivered on: 14 March 2018

[1] Act number 81 of 1998

[2] (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA) (25 November 2003).

[3] Act number 81 of 1998