PROPERTY

Facts and issue: The plaintiff and the defendant are neighbours. The defendant’s residential property is on higher-lying ground than that of the plaintiff. A boundary wall erected by the defendant on his property without the necessary foundations, drainage holes, plans or approval, succumbed to the weight of stormwater and collapsed over and onto the plaintiff’s property, damaging her house and adjacent garage structure. The defendant was found to be 100% liable for the plaintiff’s proven or agreed damages suffered because of the incident. The court deals with the subsequent quantum of damages portion of this action.

Discussion: The plaintiff relied on invoices for certain items under the claim. These reflected real and actual expenses incurred by the plaintiff. The invoices generated by her were not in relation to simulated transactions, nor do they appear to have been created ex post facto in relation to fictitious transactions. Certain items remained questionable and fall to be disallowed. Some of these items have not been verified nor has any evidence been produced as to why these amounts are claimed as damages. The plaintiff claimed amounts expended in replacement of items which have allegedly been damaged. The court accepts the plaintiff’s evidence that the Mercedes-Benz which features in several photographs in the makeshift garage had become damaged in the incident. She had replaced the bonnet, the grill the and the windscreen and grill handle from a parts shop and claimed R12,000.00 for parts and labour in respect thereof. This appears to be a reasonable amount. She had also replaced various loose items such as electrical kettles, toasters, frying pans, a cheap TV set and similar items in the kitchen. The amounts claimed in respect thereof do not appear to be exorbitant.

Findings: In schedule N5 the plaintiff claimed an amount of R868,077.57 as the estimated still outstanding costs of repairing the immovable property. The engineer considered the plaintiff’s contentions that her house had “moved” during the incident, that its structure had become compromised. The engineer found that the building as it stands now is not structurally unsound however it is not in a habitable state. This was due to lack of easy access into or entrance from the building with the two principal doors being sealed shut and the only other possible doorway being blocked by a double bed, no potable water supply, and no electrical power. The plaintiff has proven the certain amounts of damages which amount to R714,402.96. From this, the amount of R228,708.07 needs to be deducted leaving a net amount of R485,694.89.

Order: The defendant is ordered to pay the plaintiff damages in the amount of R485,694.89 together with interest.

* See Ndhlovu v Phoshoko [2023] ZAGPPHC 135 on the liability issue.

Facts: Each of the six purchasers bought a “life right” or a “housing interest” in respect of a specific suite in the St Leger Retirement Hotel located in Muizenberg, Cape Town. All the purchasers were retired persons as contemplated in the Housing Development Schemes for Retired Persons Act 65 of 1988 (HDSA). On payment of the purchase price the purchasers took occupation of their units and authorised Herold Gie and Broadhead Incorporated (HGB) to pay to the developer all the moneys that had been entrusted to it as the purchase price in respect of the life rights. HGB released the funds to the developer accordingly. In 2014, the purchasers cancelled their life rights agreements and each demanded a refund of their purchase price. They alleged that the developer failed to inform them, prior to the conclusion of the agreement, that use and occupation of the retirement hotel, as contemplated in the agreement, would not be legally possible, despite being aware that the required building regulation certificates could not be issued. The developer was later sequestrated.

Appeal: The High Court found that the purchasers were the trust creditors of HGB. By releasing to the developer the entrusted moneys that were the equivalent of the purchase prices entrusted to it by purchasers, HGB had “violated an entrustment under s 6(3)(a) of the HDSA”. The High Court held that section 6(4) of the HDSA confers a right of action on a purchaser who had entrusted purchase price funds to a practitioner, where such funds or an equivalent of the funds are released to the developer prior to compliance with section 6(1) of that Act.

Discussion: The purchasers’ claims for reimbursement of the purchase prices was founded on the provisions of section 6(4) of the HDSA. This section entitles a purchaser in a scheme, developed in terms of the Act, to a refund of the purchase price held in a legal practitioner’s trust account, where the developer of the scheme becomes insolvent. The High Court separated three questions for anterior determination as points of law and determined all three questions in favour of the purchasers. The High Court found that the argument made by HGB, that the purchasers could not rely on section 6(4) was inconsistent with the purpose for which section 6 of HDSA was enacted, being the protection of elderly persons against “possible exploitation or misfortune by a developer”. 

Findings: The meaning and purpose of section 6(4) within the context of section 6 is clear. It is the protective measure provided to safeguard the interests of elderly purchasers in instances where a developer of a retirement home becomes insolvent before the guarantees on the suitability of the life right housing unit are in place as provided in section 6(1). On a proper interpretation, section 6(4) is not an open-ended statutory foundation for claims of repayment to purchasers, of moneys entrusted to practitioners under the HDSA. It is confined to instances where the developer becomes insolvent while there are moneys held in trust by a practitioner, for the developer’s benefit. The High Court’s conclusion, that the purchasers were HGB’s trust creditors, is inconsistent with the language of section 6(3)(a). Ordinarily, on sequestration of the developer, the purchase price funds would become part of the developer’s insolvent estate.

Order: The appeal is upheld with costs. Save for the decision on the second question, the order of the High Court is set aside and replaced with the following: “The first question is decided in favour of the defendant. The third question is referred back to the High Court for determination. The costs stand over for determination together with the remaining issues.” The matter is referred back to the high court for determination of the remaining issues. 

* See paras [12]-[14] on the three questions of law.

DAMBUZA JA (NICHOLLS JA, MABINDLA-BOQWANA JA, TOLMAY AJA and MBHELE AJA concurring)

Facts and issue: This is an appeal in terms of section 57(1) of the Community Schemes Ombud Service Act, 9 of 2011 (CSOS). The appellant is seeking an order setting aside the adjudication order in which the adjudicator dismissed its claim for an amount of R360,000 in respect of penalty charges levied against Mr Lawlor for his alleged failure to erect a palisade fence around the nature boundary area and his property. In dismissing the appellant’s claim, the adjudicator held that it was not Mr Lawlor’s duty to erect the palisade fencing and that the fines were invalid and ought to be withdrawn. The notice of appeal was served 2 months late. The appellant filed an application for condonation for its failure to note the appeal on time.

Discussion: The appellant’s reason for the delay is that “for some inexplicable reason”, he did not see the email and that if he had seen it, he would have taken steps. Counsel for the appellant ascribed this inexplicable reason to human error. He asked the court to condone the non-compliance on the basis that the appellant was honest and did not fabricate other fanciful reasons. It was further submitted that the appellant did not waste time and that it had launched the appeal 10 days after gaining knowledge of the adjudication order. The court is not persuaded by the explanation for the delay as proffered by the appellant. Such explanation does not qualify as a reasonable explanation to justify non-compliance with the prescribed time limit. Granting condonation under circumstances where the applicant has no real explanation for the delay can result in undesired results where time limits are simply ignored and there are no consequences.

Findings: The appellant’s explanation for the delay does not pass the requisite threshold in respect of an application for condonation. The appellant had no prospects of success in the appeal. This requirement, insofar as it relates to the application for condonation, has not been satisfied. In the premises, having regard thereto and the fact that the appellant has failed to prove any of the other relevant factors in respect of an application for condonation, the said application must be dismissed. The appellant has failed to satisfy the court that, considering the proven facts as found by the adjudicator, that he erred in law. There are no grounds to set aside the order of the adjudicator in terms of section 57 of the CSOS Act.

Order: The application for condonation is dismissed.

Facts: A developer (M & T) undertook two sectional title developments. The developer concluded a written agreement with Telkom in terms of which Telkom undertook to supply the materials necessary to build and install the infrastructure necessary to enable Telkom to provide telecommunications services to the developments. Metro Fibre Networx (MFN) concluded a written agreement with the Home Owners Associations of the two developments in terms whereof MFN obtained permission from the Home Owners Associations to access the ducts and roll out fibre optic cables in the ducts. Acting in terms of the agreement, MFN obtained access to the ducts and rolled out its fibre optic cables. Telkom did an inspection of the ducts and found that MFN had utilised the ducts to roll out its fibre optic cables. This, according to Telkom, was unlawful in that no permission was obtained by MFN from Telkom. Telkom complained to ICASA that MFN was obliged by Section 43 of Electronic Communications Act 36 of 2005, as well as the Electronic Communications Facilities Leasing Regulations, to approach Telkom for a lease before installing its fibre cables in ducts on the property of the estates and that MFN had failed to do so.

Application: The committee found that it had jurisdiction to entertain the complaint. The committee concluded that MFN had contravened Section 43 of the ECA read with Regulation 3 of the Electronic Communications Leasing Regulations in that it gained access to Telkom's electronic communications facility without following the prescribed procedures. Being dissatisfied with the findings, the applicant approaches the court for an order that the order and recommendation granted by the Complaints and Compliance Committee (CCC) be reviewed and set aside.

Discussion: The fundamental argument by MFN is that because of the principle of accession, the facilities in question adhere to the immovable property of the respective Home Owners Associations of the two estates. This being the position, nobody but the HOA's can be the owners of the facilities, least of all Telkom. Further, because Telkom is not the owner of the facilities, section 43 of ECA is not applicable, and no permission from Telkom is required, nor is it required by section 43 for MFN to enter into a lease with Telkom. The factual position seems to be that the trenches were dug in the soil at certain depths, according to the specifications of Telkom. Ducts were then installed in the trenches. The trenches were covered with soil and manholes were constructed with bricks and mortar to give access to the ducts in the trenches. Cables were then installed through pipes (sleeves) in the ducts to connect to the internet and provide data to residents in the estates. The ducts cannot be removed without damaging them. The cables (whether copper, fiber or otherwise) can in fact be removed and re-used. The ducts, piping, cabling, manholes and its covers etc can be referred to as the “infrastructure”. Telkom envisaged that the infrastructure would belong to it and for its exclusive use. The pipes, manholes and manhole covers can be removed by Telkom without damaging them. The cables rolled out by Telkom in the pipes in the ducts can be removed and remain the property of Telkom.

Findings: Telkom complained to ICASA that MFN accessed its facilities without going through the prescribed motions set out in sections 43 and 44 of the ECA. MFN alleges that it is only incumbent upon it to adhere to the provisions of section 44 once Telkom proves it is the owner of the facility in question. Telkom was entitled to approach ICASA and complain as it did. It was entitled to do so having regard to the fact that it was the holder of the servitude over the land of the HOA's in which the ducts were constructed. It will also, in terms of section 22, be entitled to remove its electronic communications network, etc, as long as it is in movable parts. The immovable duct forms part of the land owned by the HOA's. Ownership was not a requirement for Telkom to lawfully approach ICASA for relief in terms of section 43 of the ECA. None of the grounds advanced by the applicant for review of the investigation findings and recommendations of the CCC or the order by ICASA hold water.

Order: The application for review is dismissed with costs.

BRAND AJ

Facts: The appellant is a homeowners’ association which is a community scheme as defined in the Community Schemes Ombud Service Act 9 of 2011. In September 2021, Ms Brandt became owner of a unit in Bella Rosa. At the time, the property was vacant, with no construction ever having been undertaken by the previous owner. From October 2021 the appellant imposed a building penalty against her, on the basis that no building construction had commenced on the property within the period prescribed in the appellant’s constitution. She did not receive the monthly statements until December 2021, apparently due to an email address error, by which time three months’ worth of building penalties were reflected in her monthly statement, together with interest. Almost immediately, she addressed emails to the appellant challenging the imposition of the building penalty.

Application: The parties were unable to resolve the dispute and Ms Brandt referred a complaint to the CSOS. The order granted by the adjudicator was that the fines against Ms Brandt are invalid. The appellant was ordered to remove the fines from her levy statement within 14 days of the order. The appellant seeks review and an appeal against the decision of the adjudicator.

Discussion: The appellant contended that the adjudicator failed to have regard to the fact that the appellant’s constitution is a contract between the appellant and the first respondent in terms of which the latter agreed to be bound. By focusing on the procedure followed by the appellant, the adjudicator effectively amended the constitution, instead of simply applying its provisions. The adjudicator accepted that Ms Brandt was bound by the provisions. The adjudicator held that the appellant failed to follow a fair procedure before imposing the penalties against her because it failed to issue a notice in writing and to afford her an opportunity to remedy the breach or to make submissions in writing if she disputed the breach.

Findings: A successor in title might seek to extend the prescribed timeframes, because they would only obtain transfer of the property after sale from the original buyer. This the constitution recognized by including a provision allowing for possible agreement to extend the timeframes. Even if the penalties themselves are not inherited or accrued from the previous owner, the computation of the prescribed period involves both tenures. Ms Brandt’s conduct of seeking to engage the appellant was within the contemplation of the constitutional provision which contemplates submissions, such as the ones she made, for consideration by the appellant. Regrettably, her pleas fell on deaf ears. The appellant had effectively determined a penalty for a breach of its constitutional provisions, without ever having afforded Ms Brandt an opportunity to remedy it.

* See paras [6]-[36] on the points raised in the review.

Order: The review and the appeal are dismissed, with no order as to costs.

MANGCU-LOCKWOOD J (SALDANHA J concurring)

Facts and issue: This is a statutory appeal against the order of the Adjudicator acting in terms of the Community Schemes Ombud Service Act 9 of 2011. The body corporate gave consent for the applicant to seek municipal approval for any departures required from existing land use restrictions. The City granted the departures sought. The applicant filed a complaint with the Ombud Service, alleging that members of the body corporate had unreasonably refused to grant consent to his proposed building plans. That complaint was dismissed. The underlying cause or main basis upon which the Adjudicator’s decision is premised is one of a lack of jurisdiction.

Discussion: It is unclear in the Adjudicator’s finding how the ‘reasonableness’ factor of the decision of the body corporate was evaluated. It seems that this exercise still needs to be carried out. The Adjudicator merely expressed a general sense of satisfaction that the owners had applied their minds without pertinently engaging with the nub of the applicant’s complaint. At the core of the complaint is the inconsistency of the body corporate’s decision-making process, a lack of bona fides in respect to at least one of the owners sitting on the body corporate, etc. The Adjudicator made a definitive finding that he lacked jurisdiction to entertain the application because it had been brought in terms of section 38 of the CSOS Act and, on that basis, found that the application should rather be directed to the Chief Ombud and dealt with in terms of a section 6(9) application. There does not appear to be any mechanism for lodgement of applications with the Chief Ombud or Ombud Service other than the procedure that is prescribed in Chapter 3 of the CSOS Act.

Findings: The Adjudicator’s ruling makes mention in its introduction that the application under consideration was made in the prescribed form to the Ombud Service in terms of section 38 read with section 39 of the CSOS Act. The application underwent the prescribed screening process, came before the Ombud who, in the exercise of his discretion, accepted the application and referred the dispute directly for adjudication before an adjudicator in accordance with section 48 of the CSOS Act, read with the Practice Directive. The Adjudicator misdirected himself materially on a question of law in dismissing the application before him for a lack of jurisdiction.

Order: The appeal is upheld. The applicant’s application is remitted to the Community Schemes Ombud Service for hearing before a different staff member of the Ombud Service in order to determine the merits of the application.

Facts and issue: The applicant is the owner a property. The respondents are the owners of an adjacent property. A garage erected by the respondents is encroaching the property of the applicant. The applicant instituted motion proceedings for a declaratory order that the said garage unjustifiably and unlawfully encroach her property and, in addition, for an order that the respondents be ordered to demolish the encroachment and restore the surface area of the encroachment to its original state as prior to the erection of the immovable structure. The respondents seek dismissal of the relief claimed.

Discussion: The municipality served the respondents with a final notice in terms whereof they were informed that the structure and its foundation exceeded the boundary line. The notice required the respondents to demolish the portion of the structure that exceeded the boundary and to remove the building material. The notice was ignored by the respondents. The respondents acknowledged that 42cm of the garage they erected encroached on the property of the applicant. It ill behoves the respondents to contend that they have no knowledge of their obligation to take steps to remove the encroachment. The respondents acquired knowledge by means of the notice that the garage unlawfully encroached the property of the applicant. The respondents failed to engage with the municipality to rectify the unlawful encroachment. Instead, both the notice and the letter were ignored by them.

Findings: The respondents enjoyed the benefit and use of a portion of the property of the applicant to her detriment. She is unable to develop her property and make additions to its fullest potential. A garage will enhance the use of the property and will increase the value and its marketability. No evidence was presented by the respondents that partial removal of the encroachment is impossible or not practicable nor was evidence adduced what the costs might be for removal or partial removal of the garage. The applicant is entitled to enjoy full ownership of her property and to put up a garage in her property as much as the respondents. A period of a month is reasonable to afford the respondents time undertake the necessary work.

Order: The respondents are ordered to demolish or partly demolish the structure within one month after the date of the order.

Facts and issue: The applicants seek an order declaring invalid, of no force and effect and setting aside certain documents, including agreements entered between the applicants and the third respondent (AMS) which gave effect to the transfer of a property. In essence, the applicants seek a vindicatory relief. The applicants contend that the property belonged to the Family Trust (the Trust). The Trust lost ownership of the property through a fraudulent scheme known as reverse mortgage scheme perpetrated by AMS and associated companies.

Discussion: The applicants purchased the property during 2000 as a family home. The applicants found themselves in financial constraints and was drawn into an advertisement publicly displayed by AMS in the Pretoria News Paper. They asked for a loan in the sum of R300,000. AMS advised them that AMS would offer the needed financial assistance on condition that they register a second bond over the property as security for the loan. At all material times the applicants believed that they were concluding a loan agreement which would be secured by registration of second bond over the property. It was not disclosed to them that the true nature of the documents was that they were transferring their property. For their part, they never had intention to sell the property nor contemplated that by signing such documents they were in fact disposing off the property. Later, they received a sum of R200,000.

Scheme: AMS would lure people (clients) who needed financial assistance. A client would be made to sign some documents purporting to be a loan agreement in which the client’s property would supposedly serve as security for the loan. Unbeknown to the client, the documents constituted a sale agreement in respect of the property. Upon signature of the documents, AMS would surreptitiously sell and transfer the client’s property to another entity controlled by the very AMS.

Findings: The applicants’ property was transferred to Southern Spirit Properties which was controlled by AMS. The applicants did not know that by signing the documents at the instance of AMS they were authorising the transfer of their property. All they were told and understood was that they were merely entering into a loan agreement. The applicants have established that their property was transferred to AMS fraudulently. They never had any intention to transfer their property nor any knowledge that their property was being transferred.

Order: The documents are declared null and void and of no force and effect and are accordingly set aside. It is declared that the first applicant in her capacity as the trustee of the Trust is the owner of the property.

Facts: The appellant is a non-profit homeowners association of the Stone River Estate (the Estate). The appellant is tasked to manage the Estate in terms of the appellants memorandum of incorporation (MOI). The first respondent (Mashoko) is a registered homeowner in the Estate. Every registered owner, such as Mashoko, is a member of the appellant and is contractually bound by the MOI and the Rules made by the directors of the appellant from time to time. The appellant filed a dispute with the respondent regarding the collection of arrear levies, building penalty levies and interest. The penalty levies were imposed by the appellant due to the respondent’s failure to complete building operations within the 12-month period specified in clause 8 of the MOI. The appellant sought an order against Mashoko for payment in respect of ordinary levies and in respect of penalty levies, as well as interest and costs.

Appeal: The adjudicator granted an order for the payment of the arrear levies and interest but ordered the appellant to remove the building penalty. The adjudicator found that the appellant was not entitled to impose the penalties because it was required to comply with clause 10 of the MOI, which provides for notice to the member, before doing so. Additionally, the adjudicator did not issue any orders regarding interest or costs. The appellant appeals against a portion of an award that was granted by the adjudicator against the respondent.

Discussion: The appellant submits that the adjudicator failed to interpret the MOI correctly. Clause 8 is a stand-alone penalty clause for late building. It is included in the MOI and is not contained in the rule packs other than to refer the member back to the MOI. If the penalty was subject to the procedure contained in clause 10 of the MOI, it would have been included in the Building Rules. The adjudicator erred in law by finding that the appellant had not applied clause 10.1.1 by giving written notice of the penalty, before imposing the fine. Mashoko is contractually bound to the terms of the MOI which includes clause 8.3 that states that if a member has not completed the build within the 12-month period, a non-completion fine of twice the annual levy will be payable. Mashoko commenced with the build on or about 17 October 2018. He had until 1 October 2019 to complete the build. He does not dispute that the build was not completed within 12 months. He, however, pleads that there were circumstances beyond his control that resulted in no construction taking place between April 2019 until around 2022.

Findings: The appellant has a rightful interest in ensuring and obtaining compliance with the terms of its contract and is entitled to impose a penalty clause to compel homeowners to carry out their obligations under the contract by providing harsh consequences should they default. It is a penalty that is intended to create a deterrent rather than as a provision which provides compensation for default. The purpose of clause 8.3 is to encourage owners to build within 12 months of date of commencement. That purpose cannot be served by allowing a system of providing that person an opportunity to argue its case or rectify its breach. The adjudicator failed to give effect and interpret clause 8 of the MOI as providing a penalty interest when it is proven that the member has not complied with the time limits contained in clause 8. The adjudicator misinterpreted the MOI and ordered the appellant to remove the building penalty. The adjudicator made the finding on a point of law without entertaining or considering the merits of the dispute. It is in the interest of both parties that the merits of the dispute be referred to the adjudicator to make a finding on the facts and the law. The building penalty fines have been imposed on Mashoko based on the MOI.

Order: The appeal is upheld with costs. Paragraphs (g) and (h) of the adjudicator’s award is set aside. The disputes relating to the building penalty are referred back to the adjudicator.

WINDELL J (HARTOG AJ concurring)

Facts and issue: The plaintiffs, Christo Schoeman and Rudolph Schoeman, are each claiming from the defendant, Valco Boerdery R1,000,000 together with interest and costs. These are amounts outstanding on the purchase price in terms of the sale agreements entered between the plaintiffs and the defendant in respect of their two separate farms. The essence of the dispute is around the amount of R2 million which is the unpaid remainder of the purchase price. In terms of the agreement between the parties, the first instalment in respect of the remainder of the purchase price was to be paid on 1 September 2021 in a total sum of R1 million (R500,000 for each sale). The plaintiffs are claiming the payment of this amount from the defendant.

Discussion: Both sale agreements contain what is referred to as a clause. In the Rudolph Schoeman sale agreement, it is Clause 14.1 whereas it is Clause 14 in the Christo Schoeman agreement. These identical clauses read that the agreement is subject to the suspensive condition that the existing lease which the seller has with South 32 be ceded to the purchaser within a reasonable time, under the same terms and conditions (the suspensive condition). Schoeman Boerdery contended that because the outstanding amount of R2 million remain unpaid by Valco, the acceleration clause, (Clause 11), contained in the agreements was triggered and Schoeman Boerdery is therefore entitled to claim the full outstanding amount of R2 million together with interest and costs. The matter turns on whether the cession of certain rights allegedly held by Schoeman Boerdery in terms of a written lease agreement was a suspensive condition. Considering how the agreements were negotiated and that the impugned clauses were meant to protect Valco, the interpretation of this clause, which would result in sensible meaning that would not lead to unbusinesslike results or undermine the purpose of the condition, is that it is a suspensive condition.

Findings: The impugned clause is a suspensive condition. Valco’s conduct unequivocally supports the inference and conclusion that it waived its rights to enforce the suspensive condition particularly if the following are considered. Valco allowed the transfer of the properties to proceed before the cession was effected. This inference is further reinforced by the fact that Valco never raised this issue all along until Schoeman Boerdery rejected Valco’s offer to pay a discounted amount on 12 October 2021. This strongly implies a waiver of the suspensive condition by Valco. Valco’s offer to pay the reduced outstanding amount is consistent with the waiver. Schoeman Boerdery has demonstrated that the impugned suspensive condition was waived by Valco. Schoeman Boerdery’s has complied with its obligations in terms of the agreements and is accordingly entitled to judgment.

Order: Judgment is granted in favour of the plaintiffs against the defendant for payment of the sum of R1 million rand in respect of each claim.

Facts and issue: This is a case about the entitlement to a house initially allocated in terms of the Black (Urban Areas) Consolidation Act 25 of 1945 and various regulations promulgated in terms of it. The applicant (Mr Kgasi) seeks an order for an adjudication to be held relating to the ownership of the property. The property is currently registered in the name of the respondent (Mr Vilane), and the applicant’s deceased mother, (the deceased). He was in a relationship with the deceased, who passed away in 2003.

Discussion: In 1978, the Urban Areas Act allowed for the registration of 99-year leasehold rights over property in black urban areas. Black persons could acquire a registered real right to state-owned property. The holders' rights were still derived from the state. The Deed of Sale of 1984, signed by Mr Vilane, was such a leasehold. The granting of this lease had the effect of replacing the Regulation 7 permit. The Certificate of Registered Right of Leasehold registered in the name of Mr Vilane and the deceased, which is the Deed that he attaches to prove his ownership, is such a right. This replaced the previous leasehold with a leasehold registered on 23 February 1999. Mr Kgasi’s name does not appear on this certificate. Mr Vilane’s leasehold rights got upgraded in terms of s 2 of the Upgrading of Land Tenure Rights Act 112 of 1991 that was promulgated to convert all registered leaseholds into ownership automatically when the township register was opened. If this was the case, then in terms of the ULTRA, no similar adjudication process as in s 2 of the Conversion Act was required.

Findings: The fact that s 2 of the Conversion Act is not applicable, the upgrade in terms of s 2 of the ULTRA does not require a decision to be made before upgrading, and the Gauteng legislation only deals with adjudicating disputes and not making decisions, there was no decision made. It follows that there is then also no decision to review. The leasehold replaced the Regulation 7 permit, and such leasehold follows the upgrading process in s 2 of the ULTRA, not s 2 of the Conversion Act. Section 2 of the ULTRA does not involve a “decision” like s 2 of the Conversion Act. Thus, there is no decision to review, and for that reason, the application must be dismissed.

Order: The application is dismissed.

Facts and issue: The applicant initiated this application seeking to have the sale and transfer of the property in the names of the second to fifth respondents set aside and to obtain an order compelling the first respondent to give transfer of ownership to the applicant pursuant to and in terms of the sale agreement dated 30 November 2010.

Discussion: The applicant and the first respondent concluded a written agreement of sale in terms of which the first respondent sold the property to the applicant. The purchase price was duly paid by the applicant in instalments. Notwithstanding the conclusion of the sale, the payment of the purchase price and the applicant having taken occupation, transfer of ownership in and to the property never took place. According to the applicant, this was solely due to the failure of the first respondent to have provided his co-operation with the formalities involved in the conveyancing process. Instead, the applicant was advised by the second to fifth respondents that they had purchased the property from the first respondent on 13 December 2019 and that transfer of ownership had been registered in their names some time thereafter. The critical question is whether the second to fifth respondents at the time of having concluded the second sale agreement with the first respondent and the subsequent registration of transfer ownership thereof, giving effect to the said sale, were aware of the pre-existing sale between the applicant and the first respondent in 2010.

Findings: The second to fifth respondents confirm that they were unaware of the dealings between the applicant and the first respondent. The applicant on the other hand attempts to refute the allegation, albeit in argument that the visit by the fourth respondent to the applicant at the property on 11 November 2019, constituted knowledge on the part of the respondents of the pre-existing sale. The court is unable to find that the applicant has disclosed a cause of action in support of the relief claimed. The failure in this regard is dispositive of the entire matter.

Order: The application is dismissed.