Registrar of Deeds Cape Town v Khoi Khoi Zan and Others (LCC100/2019) [2023] ZALCC 12 (20 April 2023)

REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC100/2019

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

NOT REVISED

In the matter between:

REGISTRAR OF DEEDS CAPE TOWN Applicant and KHOI KHOI ZAN (and 10 Other Respondents) First Respondent

JUDGMENT

NCUBE J

Introduction

[1] This is opposed application for a rescission. As the application is brought out of time, the applicant has simultaneously brought an application for the condonation of the late filing of the rescission application. The condonation is likewise opposed. I shall first deal with the facts of the original application in which the order sought to be rescinded, was granted by default.

Factual background

[2] Mr Simon Pasiya, (“Mr Pasiya”) is the paramount Chief of the Khoi Khoi Zan communities. Khoi Khoi Zan communities were scattered in many areas in the Western and Eastern Cape before the advent of the Group Areas Act.[1] Those communities were resident in places like Bizana, Flagstaff, Libode, Lusikisiki, Ngoleleni, Port St John’s, Qumbu, Umtata

etc. These communities were forcefully removed from their places by the apartheid regime.

[3] The apartheid government created an entity, known as the Citizen Housing League White Group (“the Housing League”). This entity was created as a civic non-governmental institution created with the view of alleviating the plight of the so-called poor Afrikaners. A number of properties expropriated and seized from blacks, were first registered in the name of the Housing League. In fact, the Housing League was created for the housing needs of white persons and Afrikaners in particular. Properties seized from the Khoi Khoi Zan were given piecemeal to whites. To date, many properties seized from blacks are still in the name of the Housing League. The Housing League kept on changing its name at the Companies & Intellectual Property Registration Office (hereinafter as “CIPRO”). With the coming into existence of the democratic government, the entity known as “Communicare NPC” which is the first respondent in the original application, took over the ownership of many properties which were previously registered in the name of the Housing League.

[4] Communicare is renting out certain properties and it evicts those who fail to pay rent. Communicare have about 3374 properties which it rents out to various tenants. In 1998 and 2016 Mr Pasiya, on behalf of dispossessed Khoi Khoi Zan communities, lodged claims for the restoration of the dispossessed land. Most of the properties owned and registered in the name of Communicare and which it is renting out, are subjects of the pending land claims.

[5] In the original application, the Khoi Khoi Zan sought an interdict against the Communicare, restraining it from evicting people from properties which are subject of a land claim. The order which is sought to be rescinded, is an interdict in the form of mandamus, in which the Registrar of Deeds was compelled to produce the documents which were requested by Khoi Khoi Zan in a letter addressed by their legal representative to the Registrar of Deeds. The letter was dated the 9th of December 2020. The order was granted by default as there was no appearance on behalf of the Registrar of Deeds.

[6] The order was granted on 29 November 2021. The documentation to be produced related to the full list of properties registered in the name of the Housing League which are in excess of 3374. The required documentation had to show the current and past registered owners of those properties. The Registrar of Deeds provided the report but that report, according to the attorney for the Khoi Khoi Zan communities, did not provide all the information required. The stance of the Registrar of Deeds is that some of that information may be obtained from the CIPRO as some of those properties are companies or business properties.

Condonation

[7] Rule 32(4)(b) of the Rules of this court provides that the court, may, on application and on good cause shown at any stage of the proceedings condone any irregular step or any non-compliance with the rules or with any order or direction of the court. Basically condonation may be granted if good cause is shown. Good cause shown, requires the following to be considered:

a) degree of lateness

b) the explanation given

c) the prospects of success in the main application.

In terms of Rule 64(2)(a) of the Rules of this court, a party who seeks a rescission must make an application within ten (10) days, of him becoming aware of the order.

[8] The court order was granted on 29 November 2021. The applicant was served with the order on 1 December 2021. The application for condonation and rescission was signed on 28 April 2022. It is clear that there was a long delay in bringing the application. There is a long and unconvincing explanation given for the delay including letters written to the office of the State Attorney. However, lateness in bringing the application these days is not the only consideration. In Bertie Van Zyl[2] it was held that lateness is not the only consideration in determining whether condonation should be granted. The test for condonation is whether it is in the interest of justice to grant it.[3] Whether it is in the interest of justice to grant condonation herein, we must simultaneously look at whether there is a reasonable prospect of success. In my view, looking at the nature of the documentation required, there is a great prospect of success in rescission and I would accordingly grant condonation.

Application for Rescission

[9] The rescission of judgment is dealt with in terms of Rule 64(2)(b). In terms of this Rule the order of rescission may be granted upon good cause shown. It has been held that it is unwise to give a precise meaning to the term “good cause.” In HDS Construction (Pty) Ltd v Wait[4] Smalberger J said:

“When dealing with the words such as “good cause” and “sufficient cause” in other Rules and enactments the Appellant Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words Executors v Gearn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352- 3. The court’s discretion must be exercised after a proper consideration of all the relevant circumstances.”

[10] Good cause, is the combination of the following factors: -

a) giving a reasonable explanation for the default.

b) showing that the application is made bona fide.

c) showing that the applicant has a bona fide defence to the Plaintiff’s claim, which prima facie has some prospect of success.[5]

In this case there are no clear reasons why the application was not brought on time. However, I must also look at the interest of

justice.[6] In other words, I must consider whether it is nevertheless in the interest of justice to grant rescission. The order is very wide with regard to the nature of documentation required. The order has no time limit and most information required can be obtained from CIPRO not the Registrar of Deeds. In my view, the matter has reasonable prospects of success.

Order

[11] In the result, I make the following order: -

1. The application for condonation is granted.

2. The application for a rescission of judgment is granted.

3. The order of this court granted on 29 November 2021, in favour of Khoi Khoi Zan against the Registrar of Deeds is rescinded.

4. The Registrar of Deeds is granted leave to defend the application.

5. All further documents are to be filed in terms of the Land Claims Court Rules.

M T Ncube

Judge: Land Claims Court of South Africa

Date of hearing: 24 November 2022

Judgment delivered: 20 April 2023

Appearances

For Applicant: Ngombane, S Instructed by: State Attorney Cape Town For First Respondent: Dlova, B Instructed by: Dlova Attorneys Cape Town For Second to Eleventh Respondents: No appearance

[1] Act 41 of 1950

[2] Bertie Van Zyl (Pty) Ltd Minister for Safety and Security and Others 2010 (2) SA 181 (CC).

[3] Ibid., para 14.

[4] 1979 (2) SA 298 (E) at 300- 301B.

[5] Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA), para 12.

[6] Ferris v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at 24