|In or about 1980, Richard Tshabalala passed away intestate and was survived by his seven children and his wife, Paulina Tshabalala. During his lifetime, he was issued with a regulation 8 certificate of occupation for the property he then resided on, by the West Rand Administration Board. (“the Board”) The certificate contained the names of all seven of his children.
Five years after Richard’s passing and with the consent of the Board, his rights of occupation of the property were ceded to his wife who accepted the cession and transfer of his rights, title and interest in the certificate.
Some eleven years later, Paulina ceded all her rights and interest in the property to her son (“Fana”) who was married in community of property to the First Respondent in the matter. The property was subsequently registered in their names in terms of section 5 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 Act (“the Act”). At the time, the father of the Third Applicant, and the Second Applicant herself signed as witness to the deed of cession.
This matter was brought before this court for the following relief:
- That the title deed number over the immovable property concerned in the matter, and held in the names of Fana and the First Respondent be cancelled;
- That the Department of Housing and Director General’s decision to allocate the property to Fana and the First Respondent be reviewed and set aside; and
- That the matter be referred back to the Department of Housing and Director General in order to determine the rightful claimant to the property.
The Applicants made the following averments:
- That Paulina never ceded her rights and interest in the property to Fana and the First Respondent, but that she executed a Will wherein which she bequeathed the property to all her children in equal shares;
- That the ownership of the property to Fana and the First Respondent was obtained without the knowledge of the Applicants, and that the title to the property was obtained fraudulently and unfairly, in that Fana and the First Respondent failed to disclose the Applicants’ interest in the property to the Department of Housing;
- That the Applicants were told by Paulina that the property belongs to all of her children;
- That Fana stated in a letter that he never intended to own the property and that he did not know how his wife acquired joint ownership of the property; and
- That Fana executed a Will wherein which he bequeathed the property to his siblings, and to the descendants of his predeceased siblings.
In their founding affidavit, the Applicants attached a document purporting to be Paulina’s Will and stated that the said Will was in the possession of their late brother who did not deliver same to the Master of the High Court (“the Master”).
In dealing with the issue of the Will, the learned judge first quoted section 8(1) of the Administration of Estates Act 66 of 1965 which provides that any persons in possession of a document purporting to be a Will of a deceased shall, as soon as he is made known of such death, deliver the document to the Master.
In this matter, the Applicants failed to deliver the original Will to the Master, and had not applied to court to determine the validity of the copy attached to their founding affidavit. As such, no reliance could be placed on same.
In dealing with the issue of whether Paulina had in fact ceded the property to Fana and the First Respondent, the learned Judge was of the opinion that Paulina wanted to divest herself of her rights in the property and, as such, she executed a deed of cession which was signed in the presence of two witnesses. This constituted an out-and-out cession which meant that the rights to the property vested in Fana and the First Respondent and consequently formed part of their joint marital estate.
It was further mentioned that once a right is ceded, the cedent is precluded from ceding it to a second cessionary. This meant that Paulina was precluded from bequeathing her rights to the property in her Will. Therefore, even if Paulina’s Will had been recognized, any subsequent cession in respect of the right to the property would have had no effect and would not convert any rights to other cessionaries.
In respect of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988, the legislature intended to formalize and confer leasehold or full ownership upon the beneficiaries. In or about 1993, the Act was amended to provide for the conversion of site permits into ownership specifically for sites situated in a formalized township such as the property mentioned in the matter.
The Act allowed the Director General to grant ownership and to transfer the property concerned to individuals who qualified with certain requirements after a declaration was made.
This entailed that an inquiry had to be made into the concerned site and into the identity of the occupier of same in order to determine the rights that should be conferred in him or her and to declare him or her as the owner of the site in question.
In dealing with the contention that Fana and the First Respondent obtained title to the property unfairly, the First Respondent averred that an inquiry was conducted by the Director General, where-after a declaration was made and the property subsequently transferred into their names in terms of the Act, and as evidenced by the title deed.
In addressing the fourth and fifth averments made by the Applicants, the First Respondent disputed the authenticity of the letter and of the purported Will, and further stated that same was never submitted to the Master of the High Court.
It was held that the disputes of fact raised in the matter be resolved in favour of the Respondents’ according to the Plascon-Evans Rule, which states that when factual disputes arise, relief should be granted only if the facts stated by the respondent, together with the admitted facts in the applicant’s affidavits, justify the order. It was further held that the Applicants did not make out a case for the relief claimed. As such, the application was dismissed with costs.
Once a right is ceded, the cedent is precluded from ceding it to a second cessionary.
Written by Jayna Hira and supervised by Charlotte Clarke