The short answer
Yes, the procedure is the same regardless of when he passed.
The whole question
My father died when I was 7 years old. A few years after that, my mother also passed. I am 24 now, and I want to claim my late father's house. I have my his original death certificate and ID. There are other people living in his house at the moment. I don't know how they got there.
The long answer
If your father did not leave a will, he is said to have died intestate, and the Intestate Succession Act of 1987 would apply in this way: if there was a surviving wife and children, the property would be inherited by them; in other words, your mother and yourself and any other children there might have been. When your mother died, you (and any other children) would have inherited the house.
When your father was applying for the house, he must have been married or living with a partner, or single but with dependents. The names of those dependents are listed in the application by the municipality. If you were born then, your name would have been listed as a dependent. The Human Settlements Department wants to keep RDP houses in the family, so if your father did not leave a will, the municipal office where he applied for the house will have a list of all the dependants that he listed, and you should be on that list.
You should check to see if there was a title deed issued for the house. You can find out by going to your nearest Deeds Office and asking them to do a data search for the title deeds. You will have to fill in a form and give your father’s full names, ID number and the erf number of the house, not the street number. You pay about R14 for them to do the search. If there was a title deed issued, you can get a copy of it there.
You should gather all the documents you will need, including the copy of the title deed (if there is one), the death certificates of your father and mother, their dates of birth if you don’t have both their IDs, and ask that municipality for assistance.
If there is a title deed, you would need to have it transferred into your name. This is done by a lawyer called a conveyancing attorney who will see to it that the Deeds Registrar signs the title deed in your name and a copy will be kept in the Deeds Office. The cost of a conveyancing attorney could be as much as R7,600, so perhaps you could ask the municipality to help you do this as economically as possible.
But as 18 years have gone by, and there are other people living in the house who may have lived there for a long time, this will not be straightforward or easy. You would need to get an eviction order from a court. No one can be evicted in South Africa without a court order, under the PIE Act of 1998 (Prevention of Illegal Evictions from and Unlawful Occupation of Land Act).
You would have to inform the people living there that you are going to court for an order to evict them, and you would need to give them a copy of the date of the court hearing. Both you and the people in the house must attend the hearing so you can put your own sides of the story. You can be represented by a lawyer and if you can’t afford a lawyer, you can approach Legal Aid to represent you. The municipality must also attend to say whether it can provide alternative accommodation if the eviction order is granted. The court must take into account how long the people have lived there, and how the eviction would affect them, especially if there are children and elderly people among them.
The court must be satisfied that eviction is fair and right in the circumstances.
You could contact the Housing Enquiries of the Department of Human Settlements at the toll-free customer service hotline:
0800 146 873 / 012 421 1915
You may also want to take all your documents and ask Legal Aid for advice and assistance. Legal Aid is a means-tested organisation, which means that they must help a person who cannot afford a lawyer. These are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Legal Aid Ethics Hotline: 0800 153 728
Please-Call-Me number: 079 835 7179
You can also try Ndifuna Ukwazi:
Phone: 021 012 5094
Wishing you the best,
Answered on May 10, 2022, 9:44 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.