Mvulazana Georgina Kuzwayo v The Representative of the Executor in the Estate of the Late Mbongeni Jonas Masilela

On 4 January 1985, Kuzwayo was granted a site permit for Erf 2000, Vosloorus, Gauteng. On 21 January 1987, she signed a notice returning the site to the town council because she had not paid site rent and was unable to do so. On 23 January 1987, Masilela applied for a site permit and was allocated the same site. He paid arrears of R221.60 (owed by Kuzwayo), an advance of R166.20, and R3,000 for infrastructure. Masilela built a house on the site with approved building plans and lived there with his family for 13 years until his death on 31 December 2000. His family continued living in the house, paying all municipal accounts. On 3 March 2004, about three years after Masilela's death, Ms F Visagie, a delegate of the Director-General, declared that Kuzwayo had been granted ownership of the site under the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 (the Conversion Act), and the site was transferred to her on 7 April 2004. No inquiry was conducted as required by s 2 of the Conversion Act. The Masilela family only became aware of the transfer in 2005 when municipal accounts addressed to Kuzwayo at their address began arriving. The Estate brought an application to cancel the deed of transfer.

• Whether the representative of the executor (Sentinel) had locus standi to bring the application on behalf of the Estate
• Whether the Estate had a cause of action to seek cancellation of the deed of transfer under s 6 of the Deeds Registries Act 47 of 1937
• Whether the proper remedy was a review of administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the transfer to Kuzwayo was valid in the absence of an inquiry under s 2 of the Conversion Act
• Whether the court could order direct transfer to the Estate or whether an inquiry under s 2 of the Conversion Act was required

The appeal was dismissed with costs, including those of two counsel. Paragraphs 1 and 2 of the high court order were replaced with the following: (1) The Registrar of Deeds (Johannesburg) is ordered to cancel title deed number T020450/2004 in respect of Erf 2000 Vosloorus, Gauteng Province, and to cancel all rights accorded to Kuzwayo by virtue of the deed. (2) The Director-General for the Department of Housing, Gauteng Province, is directed to hold an inquiry in respect of Erf 2000 Vosloorus in terms of s 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988, and to declare that the holder of the site permit in respect of the Erf is the owner thereof. An application to intervene by the Board of Executors Trust Ltd was refused with costs.

The holder of a site permit and the occupier of a site are entitled to apply for an order that the Registrar of Deeds cancel a deed of transfer to the wrong person. The court has inherent power, implicit in s 6 of the Deeds Registries Act 47 of 1937, to order cancellation of rights registered in the Deeds Register. Section 2 of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 requires the Director-General to conduct an inquiry to identify the person in occupation of a site before declaring that person has the right to acquire ownership. A transfer effected without such an inquiry is invalid and subject to cancellation. The Estate was also entitled to seek an order directing the Director-General to conduct the inquiry required by s 2 of the Conversion Act. Not every act of an official constitutes administrative action subject to review under PAJA or otherwise; clerical acts following (or purporting to follow) an administrative decision are not themselves reviewable decisions. A representative of an executor, properly authorized by power of attorney, has locus standi to bring applications on behalf of the estate.

The court observed that the transfer to Kuzwayo revealed 'a sad tale of bureaucratic bungling and an opportunistic attempt to take advantage of it.' The court noted that 'the obvious inference to be drawn' was that the official who declared Kuzwayo the owner 'looked only at the first allocation of the site to Kuzwayo, and failed to notice that she had handed the site back and that it had subsequently been allocated to Masilela.' The court remarked that 'it is quite possible that no inquiry was held and that there was no decision that would have allowed for any declaration or transfer at all.' The court expressed regret that 'the Gauteng provincial government has played no part in the proceedings and the court has not had the benefit of evidence in this regard.' The court described Kuzwayo's conduct in opposing the application and pursuing the appeal as 'remarkably opportunistic.' The court suggested that the two Masilela children who continued to occupy the site could also have brought the application, provided they were heirs to the Estate.

This case clarifies important principles regarding the conversion of site permits into ownership under the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988. It emphasizes the mandatory nature of the inquiry procedure under s 2 of the Act before ownership can be transferred, and establishes that transfer effected without such an inquiry can be challenged and cancelled. The case demonstrates the court's inherent power to order cancellation of registrations in the Deeds Register where they were obtained improperly, even in the absence of an express statutory cause of action. It also distinguishes between reviewable administrative decisions and mere clerical acts, holding that not every act of an official constitutes administrative action subject to review under PAJA. The case provides guidance on locus standi of representatives of executors in estate matters. It serves as a warning against opportunistic attempts to benefit from bureaucratic errors in the housing and land transfer context, particularly where such errors deprive rightful occupiers and permit holders of their entitlements.