Shomang v Motsose N.O. and Others (6990/2022) [2022] ZAGPPHC 441; 2022 (5) SA 602 (GP) (24 May 2022)

Shomang v Motsose N.O. and Others (6990/2022) [2022] ZAGPPHC 441; 2022 (5) SA 602 (GP) (24 May 2022)

The court held that the applicant's right to occupy the family home, arising from a family rights agreement and long-term occupation, deserves protection under the Constitution and relevant statutes. The property was historically allocated under apartheid legislation, and subsequent administrative processes recognised the family home arrangement, appointing a custodian for the benefit of the family. The failure to register the applicant's rights was an administrative oversight, and the current executor's claim to sole ownership conflicts with the collective rights established by the family agreement. The court found that property law must be developed to accommodate such customary law...

Citation
[2022] ZAGPPHC 441
Parties
Applicant: Irene Shomang; Respondent: Isaac Motsose N.O.; Respondent: Director-General of Department of Human Settlement, Gauteng Province; Respondent: MEC of the Department of Human Settlement, Gauteng Province; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: Registrar of Deeds: Johannesburg; Respondent: Master of the High Court: Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 May 2022
Case Number
6990/2022
Procedural Posture
Review Application / Unopposed Motion Roll; Final Judgment
Outcome
Application granted; orders issued in favour of the applicant.
Judges
du Plessis
Legal Topics
Customary Law Property Rights, Security of Tenure, Section 25 Constitution, Family Home Agreements, Deeds Registries Act, Intestate Succession
Land and Property Family and Children Constitutional Law Customary Law Property Rights Security of Tenure Section 25 Constitution Family Home Agreements Deeds Registries Act +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 22 Party arguments 2
Sign in to unlock

Parties

Irene Shomang

Applicant

Isaac Motsose N.O.

Respondent

Director-General of Department of Human Settlement, Gauteng Province

Respondent

MEC of the Department of Human Settlement, Gauteng Province

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Registrar of Deeds: Johannesburg

Respondent

Master of the High Court: Johannesburg

Respondent

Procedural Posture

Review Application / Unopposed Motion Roll; Final Judgment

Legal Issues

  1. 1 Whether the applicant's right to occupy the family home, arising from a family rights agreement, should be protected over the registered ownership of the property.
  2. 2 Whether the Registrar of Deeds should be directed to transfer the property into the applicant's name as custodian, with a caveat noting its status as a family home.
  3. 3 How property law should be developed to accommodate customary law rights in urban family homes under the Constitution.

Ratio Decidendi

The court held that the applicant's right to occupy the family home, arising from a family rights agreement and long-term occupation, deserves protection under the Constitution and relevant statutes. The property was historically allocated under apartheid legislation, and subsequent administrative processes recognised the family home arrangement, appointing a custodian for the benefit of the family. The failure to register the applicant's rights was an administrative oversight, and the current executor's claim to sole ownership conflicts with the collective rights established by the family agreement. The court found that property law must be developed to accommodate such customary law...

Court Disposition

Application granted; orders issued in favour of the applicant.

Orders

  • It is declared that the property known as ERF [....] held in Title Deed No: T[....] is subject to a family rights agreement imposed by adjudication judgment dated 29 April 2016.
  • The Registrar of Deeds is ordered to transfer the property held in Title Deed No: T[....], currently registered in the name of Johannes Moloi, into the name of Irene Shomang as custodian of the family house, with a caveat on the title deed noting its status as a family home.