Ground-breaking judgment opens the door for law reform on apartheid-era family property rights

By Rosalie Kingwill

The recent judgment in Shomang v Motsose and Others (“Shomang”) penned by Acting Judge Elmien du Plessis provides ground-breaking insights for potential law reform with regard to property rights and transmission of property.

The case, heard in the Gauteng High Court on 24 May, concerns tenure to a property in an old Gauteng township that was converted from a permit issued in the early 1960s to title in the 1990s. The applicant is a direct descendant (traced according to African descent) of the original permit holder, her grandfather.

The property was labelled a “family house”, according to the practices of the time, and she expected to continue to be the holder of the family right when the tenure got “upgraded” over time.

“Family house” was and still is a term denoting a widely practised right to property in Gauteng’s older townships. It has long historical roots in apartheid urban tenure predating the extension of leasehold and ownership rights for black people, but continues to have strong traction with title.

In Shomang, the tenure upgrades involved a transition from a right of occupation (a permit) to conversion to freehold in terms of the Upgrading of Land Tenure Rights Act 112 of 1991 (Ultra) read in conjunction with the Conversion of Certain Rights to Leasehold Act 81 of 1988. In this case, leasehold was skipped, but the Conversion law provided procedural guidelines for adjudication and resolution of claims or disputes that are fairer than provisions in the newer law, Ultra.

In this case, an adjudication of the two claimants, Irene Shomang and her step-uncle, was conducted in 1997 for purposes of registration. The adjudication judgment resulted in a “family rights agreement” that provided tenure security to both claimants who were the adult occupiers at the time.

It was agreed that Shomang’s step-uncle would be appointed as “custodian” of the property, which resulted in the registration of title in his name, since officials maintained only spouses could be co-owners. After his death, this led to a threat of her dispossession. She then approached the court to set aside the adjudication judgment.

Shomang believed that the family rights agreement guaranteed her continual rights to the family property and, by implication, the rights of her children by dint of kinship as well as active participation in the family.

She may not have understood at the time that these were purely administrative arrangements that have no force of law, and unintentionally set the stage for a ride down the slippery slope of tenure insecurity due to poorly adapted property law.

A son of her step-uncle, Isaac Motsose, who was unknown to Shomang, appeared out of the blue after his death to claim ownership despite his absence from the area, and threatened to evict her and sell the property, actions which the common law seemed to support.

One of the supposed purposes of modern renditions of title is to render property fungible – but in her case (and millions of other cases) it can paradoxically spell insecure tenure.

Her plea to the court was to reverse the earlier registration in the name of her step-uncle to allow for the resumption of family property under her custodianship. The prior agreement proved crucial to support her claims to the property in the evidence to court.

How could such a seemingly unethical outcome of legal tenure “upgrading” that deprived the applicant of her rights have developed?

Shomang had agreed that her step-uncle assume the mantle of “custodian” of the family house, a widely understood adaptation of the customary status of “responsibility” for the welfare of the family.

In my own research in the Eastern Cape, it emerged that custodianship could be abused as a claim to heirship (in isiXhosa, indlalifa), but in terms of accepted practice, it should not be confused with heirship.

For purposes of registration of title, the custodian is, however, usually the preferred person to be registered, since there is no accommodation of a family right in law. This gives the registered person the powers of alienation, which some abuse – and it creates the potential for much tension in the family.

The role of family custodian is central to the entire property-holding structure in the case of family property, and is really a proto-legal position or “status”. The custodian is a family representative selected to manage, maintain and defend the family property and act on behalf of the entire family in the interests of all its members.

Customarily, the custodian is a descendant of the family line, and kinship relations are an essential element in tracking rights. It should be noted that Shomang’s step-uncle was related to the family by marriage, rather than the more traditional method of tracing relations through descent.

This acceptance of non-kin is possible due to additional personal qualities that are considered, such as responsibility, sobriety, capacity and dependability, conceptualised in isiXhosa as thembekileyo (trustworthiness). These personal qualities are no longer conflated with the practice of male primogeniture which, in historic custom, denoted the status of the person as both family custodian and the heir or distributor of movable property (in olden days, mainly cattle).

Custodianship is nowadays, in theory, separate from the position of heir and, although predominantly occupied by men, is transitioning to female custodianship as well, according to my research.

In short, the chosen person is validated by family consent and not by dint of registration on the title deed.

The idea of a guardian of the property is at odds with an owner, who is free to dispose of the property at will (or through wills). The conventional Western approach of identifying heirs before a testate owner dies (i.e. by will) is turned on its head. It is the surviving family members who make decisions about property management when a custodian dies, thus intestate succession is the norm.

The governing Deeds Registries Act 47 of 1939, the Intestate Succession Act 81 of 1987 and the Administration of Estates Act 66 of 1965 are, among others, out of kilter with concepts of custodianship and family property.

Law vs administration: The paradox of tenure upgrading

The tenure upgrading laws were enacted prior to transition to democracy, which, in spite of the lacunae relating to recognition of family property (and other gaps that space does not permit to discuss here), have been vigorously endorsed and sporadically applied by the ANC government over the course of the past 30 years.

This has had the paradoxical effect of threatening the tenure security of family members who may be dispossessed by the new registered owners.

Many of these upgraded (or newly created) titles have become “trouble cases” and cause major administrative headaches to the national Deeds Registry, the Master’s Office and other officials overseeing deceased estates and municipal officials where family disputes and ongoing contestation ensue on or after registration.

As observed in the Shomang judgment at para 41: “The fact that Ms Shomang had to approach the court to help protect her right in the family property indicates that property rights of occupiers of family homes still have precarious rights, as the rights in terms of which they occupy the property is at odds with the registered property rights of a single individual owner, with all these rights viewed through the lens of the common law…”

A great irony is that, because the legislature has failed to translate what should be valid property rights into law, these practices tend to be disparagingly referred to as “informal” despite the fact that they follow known rules and principles.

Shomang’s advisers and adjudicators in the 1990s saw the necessity of a family agreement that proved crucial to the success of her court case, and the judge relied on it. It did not, however, provide sufficient legal protection over time, and she had to turn to the courts for justice.

There was poor understanding of the implications of a purely administrative agreement that actually laid the ground for her potential dispossession over time.

The basis of trust that supported the family agreement did not stand the test of time.

Family house agreements or practices have no force of law unless registered on the title deed as a caveat, but this is not widely known. Furthermore, a caveat is not a long-term solution if unaccompanied by new methods of adjudication.

The judge commented on this discrepancy at para 74: “In a sense, this is what happens in the bureaucratic processes. Administrative traces indicate agreements and understanding between family members who knew and trusted one another enough not to have to turn their normative understanding about a ‘family home’ into the language of the formal law.

“It relied on the administrative system itself and the practices of the officials that give greater recognition to the people’s conceptions of the family home than what the law does.”

Sympathetic bureaucratic overseers in the past sometimes allowed families to enforce their preferences, and some still do. Unfortunately, over time, rights based on agreements have been exposed as flimsy and open to dispute, and contestation within families as to who may claim what, and who should be registered.

In law, they are regarded as “personal” agreements, meaning they do not support claims to “real rights”, as happened in a judgment referred to in Shomang, Hlongwane v Moshoaliba [2018] ZAGPJHC.

Fortunately, the case had sufficient divergences to not be regarded as legal precedent in Shomang. Here the property had been sold without the consent of the family and was in the hands of a third party outside the family. The family was unable to get an order for retrospective adjudication. The judges saw the family claims as impediments, which in some cases, undoubtedly, they are – or can be – but the trade-offs are not at all clear indicators that family property is an anachronism.

The judge observed in Shomang at para 52: “Since the Deeds Registration [sic] Act does not recognise family house rights, it leaves people with only bureaucratic protection but no formal legal protection. As long as the rights are thus adjudicated in the realm of the bureaucracy, they are protected. However, as soon as they enter a court of law, the common law kicks in, leaving them venerable [sic] of their rights in the family property not being protected.”

Black letter law based on the Deeds Registries Act and interconnected laws relating to succession, inheritance, administration of deceased estates, valuation, etc, have no flexibility to interpret these matters through legal lenses other than their statutory definitions, despite their own evolution and accommodation of new practices and property rights over time (family-type rights and practices were common in the early days of white tenure and title registration in South Africa).

As a result, administrators such as the Master’s Office overseeing deceased estates, and city and municipal officials are faced with a downward spiral of the property information as the property register backslides, and property and rates management becomes increasingly challenging.

The remedy and the solution

The judge in Shomang alludes to the absence in law of “family property” or a family right as a serious lacuna with constitutional implications.

Unable to create new law through jurisprudence, the judge nevertheless lays the ground for acceptance in law of family property or the family house. She also spells out the dilemma of judging a case that has no law to back it.

Judge Du Plessis’ remedy confirmed the erroneousness of the adjudication that resulted in registration in the name of Isaac Motsose’s father, that is, her step-uncle, and by inference his appointment as custodian. She ordered the transfer of the property in Shomang’s name “as custodian of the family house, with a caveat on the title deed that it is a family house”.

Her judgment relied on (i) the prior family agreement as clear evidence of the intention of equal rights behind the original title and the subsequent acknowledgment by the Gauteng Department of Human Settlement in 2016 that there was such an agreement that should be adhered to; and (ii) she cited legal precedent for parity of customary and common law.

The order also interdicted Motsose from taking over or alienating the property. The judge followed the best possible course for justice within the constraints of the law; she went further than black letter law but stuck within its principles.

The great significance of the judgment is that the judge argued for a new kind of property right. At para 73 she states: “… it requires that we give effect to other rights in property too. This needs to be flexible and context-sensitive and allow for the creation of new rights and the adaptability of existing rights to new situations.

“If these structural inequalities in the property system are not addressed, transformation will be impossible, and our constitutional ideals not be attained.”

The question of greater recognition of customary law is interwoven in favourable terms in the judgment but raises a range of issues which space does not permit for discussion here.

A complementary route would be to amend the Deeds Registries Act (which is in process of amendment in such a way that with some tweaks could incorporate these issues); the Intestate Succession Act and the Administration of Estates Act to be more inclusive of other forms of property holding, succession and transmission.

The recent amendments to “customary law of succession” are not much help when families want recognition of common law property rights through registration.

Judge Du Plessis provides a rich tapestry of legal history that places the issues at stake in their historical and present context with many references to relevant scholarship.

The rigorously researched exposition in the judgment sets it apart from numerous other similar contestations where awards to land rights are re-adjudicated, but without providing a basis for challenging existing law.

In Shomang, the judge goes further by raising and challenging the legal constraints, even if she is restricted by the parameters of the prayers and evidence.

Some light has finally entered the shadows of formal law to build more appropriate institutions for recognising family ownership as a distinctive form of holding immovable property.

This article first appeared in Daily Maverick on 7 July 2022.

Permanent link to this article:

Custom Contested