The Mpumalanga High Court in Middleburg has ordered the eviction of a woman who has occupied a Balfour RDP house for years, finding that the registered owner of the property remains its lawful owner despite not living there and that a magistrate had incorrectly ruled otherwise.
Judge Kganki Phahlamohlaka with acting Judge H Fourie concurring, upheld an appeal brought by Phello Petrus Moloi against Puleng Penelope Mokoena and the Dipaleseng Local Municipality.
The dispute centred on an RDP located in Zone 02, Balfour. According to court papers, the property was allocated to Moloi by the Dipaleseng Local Municipality in 2004. However, he did not immediately take occupation of the house and instead allowed Mokoena’s parents to live there under a verbal arrangement.
After the death of her parents, Mokoena remained in occupation of the property and continued living there despite Moloi’s attempts to regain possession.
Moloi maintained that he was the lawful owner of the property and relied on a title deed registered in his name in November 2019. However, Mokoena argued that her parents had purchased the house from Moloi for R40,000 in 2007. Although her version was supported by confirmatory affidavits, no written agreement of sale was produced.
The Magistrate’s Court had concluded that Moloi had effectively lost ownership by failing to occupy the house and held that ownership had reverted to the provincial government under Section 10A(3) of the Housing Act. The lower court also found that the provincial housing department should have been joined to the proceedings, reasoning that Moloi no longer had the legal standing required to pursue an eviction application.
On appeal at the High Court, Moloi challenged those findings, arguing that the Magistrate had wrongly interpreted the Housing Act and had incorrectly concluded that he lacked standing to seek an eviction order.
The High Court agreed with Moloi, holding that the lower court had incorrectly interpreted Section 10A(3) as creating an automatic transfer of ownership back to the provincial government whenever a beneficiary vacated a subsidised property. The court emphasised that ownership of immovable property is acquired through registration in the deeds office and that a valid title deed remains definitive evidence of ownership unless set aside by a competent court.
The court reiterated that ownership of immovable property passes through registration and that Moloi’s title deed therefore established his ownership rights. It further held that Section 10A(3) of the Housing Act imposes restrictions on the alienation of subsidised houses but does not automatically strip a registered owner of title without the necessary legal procedures being followed.
The court also rejected the Magistrate’s finding that the provincial government should have been joined to the proceedings. Judge Phahlamohlaka stated that joinder is required only where a party has a direct and substantial interest in the outcome of litigation. Since the provincial government was not the registered owner and would not be affected by the eviction order, it had no such interest.
Furthermore, the judge noted that once a title deed has been produced in eviction proceedings, ownership is established and any challenge to the validity of that title should be brought before the High Court. In the present matter, no successful challenge had been mounted against Moloi’s title deed.
The court found that Mokoena’s occupation was not supported by ownership, a valid lease agreement or any other lawful right. It further noted that there was evidence that she had alternative accommodation available and that no exceptional circumstances existed to justify refusing an eviction order.
As a result, the appeal was upheld and the earlier judgment was set aside.
The High Court ordered Mokoena and all people occupying through her to vacate the property within 30 days. Should they fail to do so, the sheriff has been authorised to carry out the eviction with the assistance of the South African Police Service if necessary.
Mokoena was also ordered to pay the costs of the original application, while no costs order was made in relation to the appeal itself.
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Sinenhlanhla Masilela
iol.co.za
