Nzimande and Another v Nzimande and Others (24490/12) [2012] ZAGPJHC 223 (11 September 2012)

Nzimande and Another v Nzimande and Others (24490/12) [2012] ZAGPJHC 223 (11 September 2012)

The court found that the applicants, as dependants listed on the certificate of occupation, had a right to occupy and use the property. The Director-General was obliged to conduct an enquiry under section 2 of the Act before any transfer of ownership could occur. The transfer to the first respondent was effected without such an enquiry and without consulting the applicants, rendering the transfer irregular and invalid. The sale and registration of the property in the first respondent's name must be cancelled, and an enquiry must be held to determine the rightful claimant.

Citation
[2012] ZAGPJHC 223
Parties
Applicant: Tuleleni Elizabeth Ndzimande; Applicant: Sibusiso Madlala; Respondent: Mlondolozi Ndzimande; Respondent: Director-General of Department of Housing, Gauteng Province; Respondent: The MEC for the Department of Housing, Gauteng Province; Respondent: The City of Johannesburg Municipality; Respondent: The Registrar of Deeds (Johannesburg)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 September 2012
Case Number
24490/12
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted; title deed cancelled; enquiry ordered; costs awarded against first respondent.
Judges
Kathree-Setiloane
Legal Topics
Conversion of Rights to Ownership, Section 2 Enquiry, Title Deed Cancellation, Irregular Transfer, Rights of Occupation
Land and Property Administrative Law Conversion of Rights to Ownership Section 2 Enquiry Title Deed Cancellation Irregular Transfer Rights of Occupation

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Parties

Tuleleni Elizabeth Ndzimande

Applicant

Sibusiso Madlala

Applicant

Mlondolozi Ndzimande

Respondent

Director-General of Department of Housing, Gauteng Province

Respondent

The MEC for the Department of Housing, Gauteng Province

Respondent

The City of Johannesburg Municipality

Respondent

The Registrar of Deeds (Johannesburg)

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the transfer of the property to the first respondent was valid in terms of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988.
  2. 2 Whether the applicants, as dependants listed on the certificate of occupation, were entitled to be consulted prior to the transfer.
  3. 3 Whether the Director-General was obliged to conduct an enquiry under section 2 of the Act before transfer.

Ratio Decidendi

The court found that the applicants, as dependants listed on the certificate of occupation, had a right to occupy and use the property. The Director-General was obliged to conduct an enquiry under section 2 of the Act before any transfer of ownership could occur. The transfer to the first respondent was effected without such an enquiry and without consulting the applicants, rendering the transfer irregular and invalid. The sale and registration of the property in the first respondent's name must be cancelled, and an enquiry must be held to determine the rightful claimant.

Court Disposition

Application granted; title deed cancelled; enquiry ordered; costs awarded against first respondent.

Orders

  • The Registrar of Deeds (Johannesburg) is ordered to cancel title deed no 15305/2005 in respect of Erf 8514, Pimville, Zone 6 Township, Soweto and to cancel all rights accorded to the first respondent by virtue of the Title Deed.
  • The Director-General for the Department of Housing, Gauteng Province, is directed to hold an enquiry in respect of Erf 8514, Pimville, Zone 6 Township, Soweto, in terms of section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988, for purposes of determining who the rightful claimant is.