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[2014] ZAGPJHC 60
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Oreste v Devi and Another (17136/2007) [2014] ZAGPJHC 60 (4 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER: 17136/2007
DATE:
04 APRIL 2014
In the matter
between:
BALDUZZI,
ORESTE
...........................................................
PLAINTIFF
And
RAJAH,
DEVI
......................................................
FIRST
DEFENDANT
BRASG, STANLEY
N.O
.................................
SECOND
DEFENDANT
Coram: WEPENER J
Heard: 27 MARCH
2014
Delivered: 4
APRIL 2014
Summary:
Prescription – Abolition of Racially Based Land Measures Act
109 0f 1991 – Right to claim transfer of immovable
property is
a personal right and it prescribes after three years of the vesting
of such right
JUDGMENT
WEPENER J:
[1] The plaintiff is
the registered owner of immovable property. The first defendant is
the wife of a deceased person and the second
defendant the executor
of the deceased’s estate. I refer to the first and second
defendants collectively as the defendant.
The defendant is in
possession of the immovable property. The plaintiff seeks the
vindication of the property from the defendant.
[2] The defendant
pleaded that the plaintiff is not entitled to vindicate the property
as the defendant is the true owner of the
property. The proposition
may, at a first glance, be untenable by virtue of the laws of the
country that ownership of immovable
property can, generally, only
pass by registration of transfer into the name of the owner. Such
registration, in the main, follows
upon the parties’ concluding
a written deed of sale. There are, however, exceptions to this
general proposition. Such an
exception is contained in the Abolition
of Racially Based Land Measures Act 108 of 1991(the Abolition Act).
It provides in s 48
as follows:
‘(2) Any
transaction whereby a person (hereinafter referred to as a nominee
owner) acquired property contrary to section 40
of the Group Areas
Act, 1966, on behalf of another person (hereinafter referred to as
the principal) shall, from the commencement
of this section, be
deemed not to be an illegal transaction or a transaction which
constitutes an offence.
(3) The parties to a
transaction referred to in subsection (2) may within thirty months
after the commencement of this section in
writing request the
registrar of deeds concerned to transfer property which by virtue of
the transaction is registered in the name
of the nominee owner to the
principal in accordance with this section.
(4) A request
referred to in subsection (3) shall be accompanied by affidavits or
solemn affirmations by the nominee owner and the
principal,
respectively, in which the following submissions are contained,
namely-
(a) in the case of
the nominee owner-
(i) that he is a
party to a transaction referred to in subsection (2) as nominee
owner;
(ii) that the person
who made the affidavit or affirmation referred to in paragraph (b) is
the principal in the transaction;
(iii) that a
property registered in his name and specified in the affidavit or
affirmation was registered in his name by virtue
of the transaction;
(iv) that he
acquired the property on behalf of the principal with the exclusive
object of circumventing the Group Areas Act,
1966; and
(v) that he has no
objection to the transfer of the property to the principal;
(b) in the case of
the principal-
(i) that he is a
party to the transaction concerned as principal;
(ii) that the person
who made the affidavit or affirmation referred to in paragraph (a) is
the nominee owner in the transaction;
(iii) that the
property concerned was registered in the name of the nominee owner by
virtue of the transaction; and
(iv) that the
nominee owner acquired the property on his behalf with the exclusive
object of circumventing the Group Areas Act,
1966.
(5) On receipt of a
request in accordance with subsection (3) and the supporting
affidavits or solemn affirmations in which the
submissions referred
to in subsection (4) are contained, the registrar of deeds shall,
subject to section 56 of the Deeds Registries
Act, 1937 (Act 47 of
1937), transfer the property concerned to the person who according to
the affidavits or solemn affirmations
is or is purported to be the
principal, by making the necessary entries and endorsements in
respect of his registers and other
documents, as well as in respect
of any relevant documents produced to him.
(6) No transfer
duty, stamp duty or other fees shall be payable in respect of a
transfer referred to in subsection (5).
(7) Any person who
makes an affidavit or a solemn affirmation referred to in this
section which to his knowledge is false or in
any material respect
misleading, shall be guilty of an offence and liable on conviction to
a fine not exceeding R8 000 or to imprisonment
for a period not
exceeding two years or to both such fine and such imprisonment.
(8) If a nominee
owner-
(a) refuses or omits
to make an affidavit or a solemn affirmation referred to in
subsection (4);
(b) cannot be found
to make such an affidavit or solemn affirmation; or
(c) dies after the
conclusion of a transaction referred to in subsection 2,
the principal may
within 30 months after the commencement of this section apply to a
court for an order authorizing the transfer
of the property concerned
to him: Provided that if paragraph (c) is applicable, such period
shall only commence after compliance
with any testamentary
disposition or the law regarding intestate succession, as the case
may be.
(9) The registrar of
deeds shall carry out an order of the court under subsection (8) by
making the necessary entries and endorsements
in respect of his
registers and other documents, as well as in respect of any relevant
documents produced to him.
(10) The provisions
of subsection (5) shall apply mutatis mutandis in respect of a
transfer referred to in subsection (8).’
[3] The defendant
pleaded it’s entitlement to the ownership of the immovable
property, based on the provisions of s 48(2)
of the Abolition Act.
The defendant, however, failed to implement the provisions of the
remainder of s 48 by not utilising the
provisions to effect transfer
of the immovable property into its name.
[4] Counsel for the
defendant submitted that the provisions of secs 48(3) to (10) are
peremptory and a failure to effect transfer
in terms thereof does not
affect the rights created in terms of s 48(2). On the assumption that
the right was obtained pursuant
to the provisions of s 48(2) and that
the transfer of the property need not have been effected as provided
for in secs 48(3) –
(10), that is within a period of 30 months,
I am to determine whether the right to claim transfer has become
prescribed by virtue
of the provisions of the Prescription Act 68 of
1969 (the Prescription Act).
[5] The defendant’s
denial of the plaintiff’s right to vindicate the immovable
property is based on its entitlement
to the property by virtue of the
provisions of s 48(2) of the Abolition Act. The defendant claimed, in
addition, transfer of the
property which it acquired pursuant to an
agreement of sale with the plaintiff. It is common cause that such an
agreement, if proved,
was an oral agreement which, in the normal
course, but for the provisions of s 48(2) of the Abolition Act, would
have been illegal
and unenforceable.
[6] The provisions
of s 48(2) of the Abolition Act have legalised any oral or other
agreement in terms of which immovable property
was acquired in a
manner that avoided the racially based legislation of the past. If
the allegations of the defendant are established,
the defendant
indeed acquired the property legally as the affect of the repugnant
provisions, disentitling immovable property from
being registered in
the name of the defendant, was undone by the Abolition Act.
[7] Pursuant to the
provisions of s 48(2) of the Abolition Act, the party acquiring the
property (here the defendant) obtained rights
upon the passing of the
Abolition Act. Although there are procedures prescribed in terms of
which an easy transfer into the name
of the true owner, or as
referred to in the Act the principal, could be effected, the wording
of the Act does not make it obligatory
to utilise the measures
therein set out in order to effect transfer of the property.
[8] By providing
that a principal, such as the defendant, ‘may’ take steps
to transfer the property by utilising the
procedures referred to in
section 48, the legislator did not, in my view, close the doors
against obtaining a transfer in the
ordinary way as prescribed in
the
Deeds Registries Act 47 of 1937
. The benefits of obtaining a
quick and inexpensive transfer would, in the latter circumstances,
not be available to a principal.
[9] After the
defendant pleaded its right of ownership to the immovable property
pursuant to the provisions of s 48(2) of the Abolition
Act and
counterclaimed for transfer of the immovable property, the plaintiff
responded with a special plea that the defendant’s
right to
claim transfer had become prescribed.
[10] The defendant’s
right to claim transfer is not based on the procedures contained in
secs 48(3) to 48(10) of the Abolition
Act but on the right
established in s 48(2). It was submitted on behalf of defendant that
the nature of the right is of significance
in order to determine
whether it has become prescribed. Defendant’s counsel submitted
that the provisions of s 48(2) caused
the defendant to be vested with
a real right, and thus it was argued, a right which is not
susceptible to prescription. Counsel
for plaintiff, however, argued
that the right to claim transfer had become prescribed as more 23
years have passed since the right,
if it is proven, vested in the
defendant. The defendant cannot and does not rely on the provisions
of secs 48(3)-(10) as the period
of 30 months provided for to effect
transfer of immovable property has lapsed and even on the assumption
that that period could
be extended by a court on application, no such
application is before the court.
[11] Counsel for the
plaintiff submitted that the defendant cannot claim transfer of the
property by virtue of the provisions of
the
Prescription Act 68 of
1969
which provides that;
‘10
Extinction of debts by prescription
(1) Subject to the
provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of
the period which in
terms of the relevant law applies in respect of the prescription of
such debt.
(2) By the
prescription of a principal debt a subsidiary debt which arose from
such principal debt shall also be extinguished by
prescription.
(3) Notwithstanding
the provisions of subsections (1) and (2), payment by the debtor of a
debt after it has been extinguished by
prescription in terms of
either of the said subsections, shall be regarded as payment of a
debt.
11 Periods of
prescription of debts
…
(d) save where an
Act of Parliament provides otherwise, three years in respect of any
other debt.’
The only relevant
period, should the plea of prescription prevail, is that contained in
s 11(d), being a period of three years.
The relevance of prescription
has been said to be:
‘The
Prescription Act deals
with prescription in general. In terms of
s
10(a)
debt is extinguished by prescription after the lapse of the
period which applies in respect of the prescription of the debt. A
claim is thus after a certain period of time no longer actionable and
justiciable. It is a deadline which, if not met, could deny
a
plaintiff access to a court in respect of a specific claim.’
See Road Accident Fund v Mdeyide
2011 (2) SA 26
(CC) at paragraph
10.
[12] Counsel for the
defendant submitted that the enforceability of a real right does not
prescribe within a period of three years
or at all. For this
proposition counsel relied on Staegemann v Langenhoven and Others
2011 (5) SA 648
(WCC) and Bester NO and Others v Schmidt
Bouontwikkelings CC
2013 (1) SA 125
(SCA). In Staegemann, Blignaut J
held that a vindicatory action was not a debt within the meaning of
secs 10
and
11
of the
Prescription Act and
that it is not subject to
the prescriptive periods therein contained. Having regard thereto, it
was argued that the claim by the
defendants for registration of
transfer of the property into the name of the defendant has not
become prescribed. It is immediately
apparent that Staegemann dealt
with a vindicatory action and not with a claim such as that which the
defendant instituted for the
registration of transfer of the property
into the defendant’s name, which property is in the possession
of the defendant.
The matter of Bester dealt with rectification of a
title deed. The law of rectification requires an error to have been
made in
order to seek rectification. There is no question of any
error in this matter as the property was registered in the name of
the
plaintiff by design and agreement. Both the matters of Staegemann
and Bester are therefore distinguishable from the facts in this
matter.
[13] In Radebe v
Government of the Republic of South Africa and Others
1995 (3) SA 787
(N), Booysen J said at 804A-C:
‘Assuming the
applicant had the right to have the expropriation and transfer set
aside or to demand redelivery of the land
to him by registration
thereof in his name, that right arose as soon as he was deprived of
his possession and ownership. The effect
of the expropriation,
whether valid or not, is that the applicant has been deprived of
ownership of the land. He was thus left
with no more than a personal
right (if he has any right at all) to claim redelivery of the land by
registration of title in his
name. Such a claim constitutes a debt
within the meaning of
s 10
and
11
of the
Prescription Act 68 of 1969
.
While “debt” is not defined in the Act, it has to be
given a wide and general meaning. (HMBMP Properties (Pty) Ltd
v King
1981 (1) SA 906
(N) at 909A-B.) There is no reason why a claim for
vindication of property movable or immovable should not be included.
(Joubert
(ed) The Law of South Africa vol 21 para 96.)’ (own
underlining).
See also Perumal v
Messenger of the Court and Others
1953 (2) SA 734
(N) at 736D-E and
737H – 738A; Smith v Weston
1961 (1) SA 275
(W) at 277F and
Strydom en ‘n Ander v De Lange en ‘n Ander
1970 (2) SA 6
at 12H.
[14] In Cape
Explosive Works Ltd v Denel (Pty) Ltd
2001 (3) SA 569
(SCA),
Streicher JA said 580 B-D:
‘An agreement
to grant a servitude gives rise to a real right only when it has been
registered (see Van Vuren v Registrar
of Deeds 1907TS 289 at 295; Van
der Merwe Sakereg op cit 526-527, and The Law of Propertyop cit
380-381). Dealing, at 23H-24E,
with the distinction between real
rights and contractual rights, in that case unregistered servitudes,
Ogilvie Thomson JA referred
to Willoughby’s Consolidated Co Ltd
v Copthall Stores Ltd
1918 AD 1
where Innes CJ said at 16:
“Now a
servitude, like any other real right, may be acquired by agreement.
Such an agreement, however, though binding on the
contracting
parties, does not by itself vest the legal title to the servitude in
the beneficiary, any more than a contract of sale
of land passes the
dominium to the buyer. The right of the beneficiary is to claim
performance of the contract by delivery of the
servitude, which must
be effected coram lege loci by an entry made in the register and
endorsed upon the title deeds of the servient
property.” ’
[15] In Registrar of
Deeds (Transvaal) v The Ferreira Deep Ltd
1930 AD 169
the Appellate
Division said at 180:
‘But that does
not apply to the class of personal rights which are known as jura in
personam ad rem aquirendam. As contracts,
with few exceptions, give
rise only to personal rights, the class of right, although relating
to immovable property, is a personal
right until registration, when
it is converted into a real right by such registration. The same
applies to burdens upon land, encumbrances
of immovable property,
(onera realia). They are personal until registration, when they
become real.’
[16] In Lief NO v
Dettmann
1964 (2) SA 252
(A) at 265A-C it is said:
‘By their
common consent alone, however, they only create personal rights and
obligations, notwithstanding the fact that in
part their consent aims
at the constitution of a real right in immovable property which is to
inhere in the lender. A consensual
right to claim hypothecation of
immovable property is prior to registration a personal right
available only against the debtor.
When the debtor gives effect to
the reciprocal obligation in this respect by causing the mortgage
bond to be registered in the
Deeds Registry then, and only then, is
the real right properly constituted in favour of the mortgagee.
(Registrar of Deeds (Tvl.)
v. Ferreira Deep Ltd.,
1930 AD 169
at p.
180).’
[17] In Rosebank
Mall (Pty) Ltd and Another v Cradock Heights (Pty) Ltd
[2003] 4 All
SA 471
(W), a full bench of this Division said at paragraph 39:
‘In the case
of sale of immovable property a real right is only obtained upon
registration. Thus, in Wahloo Sand Bk en andere
v Trustees, Hambly,
Parker Trust, en andere
2002 (2) SA 776
(SCA) the rule qui prior est
tempore potior est jure was applied in favour of the holder of an
unregistered servitude of right
of way against the purchaser of the
servient tenement which, it was accepted, had no knowledge of the
agreement creating the servitude
at the time of purchase of the
servient tenement, but had not yet obtained transfer. However, all
three concurring judgments of
Brand AJA (at 784F–G), Cloete AJA
(at 789I–J), and Olivier JA (at 794 E) pointed out that the
rule qui prior est tempore
potior est jure is not an inflexible one,
and that special circumstances may on equitable grounds justify a
departure therefrom.
In the case of lease, also of immovable
property, it has in general terms been said that the lessee obtains a
real right upon taking
possession of the leased premises. (See: CG
van der Merwe, Sakereg, 2ed at 596–597 and cases there cited;
and Silberberg
and Schoeman’s The Law of Property, 4ed at 406
and cases there cited). This statement has usually been made in the
context
of the rule “huur gaat voor koop” where a lease
was concluded prior to a sale of the property. However, if the taking
of possession by a lessee converts the lessee’s personal right
to a real right, like registration of immovable property converts
the
personal right of a purchaser into a real right, then the position of
a lessee in possession vis-à-vis a claimant of
an earlier
personal right to have a servitude registered, may be different to
that of the purchaser who had not yet obtained registration
in Wahloo
(supra).’
[18] The causa,
which establishes the right whether being an agreement or
legislation, does not itself confer a real right. It is
an ius in
persona ad rem acquirendam or ‘vorderingsreg’ or legal
claim to acquire a real right.
[19] In Evins v
Shield Insurance Co Limited
1979 (3) SA (W) 1136
, the court in this
Division held at 1141F as follows:
‘The word
"debt" in the
Prescription Act must
be given a wide and
general meaning denoting not only a debt sounding in money which is
due, but also, for example, a debt for
the vindication of property.
While this is so "debt" cannot embrace all rights between
two persons. In my view, "debt"
in
ss 10
and
15
(1) of the
Prescription Act means
an obligation or obligations flowing from a
particular right.’
[20] The matter of
Desai NO v Desai and Others
[1995] ZASCA 113
;
1996 (1) SA 141
(A) dealt with an
obligation of a party to procure registration of transfer of
interests in immovable properties. Grosskopf JA
said at 146G to 147B
as follows:
‘For the
reasons which follow I am of the opinion that the appellant's “debt”,
ie the obligation to procure registration
of transfer in terms of
clause 13(d), was indeed extinguished by prescription. Seeing that
this finding is decisive of the case,
it is unnecessary to consider
the other aspects raised in argument, including the submissions
relating to the true nature of the
agreement and the applicability of
s 1(1)
of Act 71 of 1969.
Section 10(1) of the
Prescription Act 68 of 1969 ('the Act') lays down that a “debt”
shall be extinguished after the
lapse of the relevant prescriptive
period, which in the instant case was three years (see s 11(d)). The
term 'debt' is not defined
in the Act, but in the context of s 10(1)
it has a wide and general meaning, and includes an obligation to do
something or refrain
from doing something. (See Electricity Supply
Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A)
at 344F-G; Oertel en Andere NNO v Direkteur van Plaaslike Bestuur en
Andere
1983 (1) SA 354
(A) at 370B.) It follows that the undertaking
in clause 13(d) to procure registration of transfer was a “debt”
as envisaged
in s 10(1).’
[21] In Barnett v
Minister of Land Affairs and Others
2007 (6) SA 313
(SCA) at
paragraph 19, Brand JA said:
‘[19] In my
view it is fair to say that the government was aware of the
identities of the defendants and of the facts upon
which its claims
against them rely, more than three years before the present action
was instituted. I am also prepared to accept
that the vindicatory
relief which the government seeks to enforce constitutes a 'debt' as
contemplated by the
Prescription Act. Though
the Act does not define
the term 'debt', it has been held that, for purposes of the Act, the
term has a wide and general meaning
and that it includes an
obligation to do something or refrain from doing something (see eg
Electricity Supply Commission v Stewarts
and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344F - G and Desai NO v Desai and Others
[1995] ZASCA 113
;
1996
(1) SA 141
(A) at 146H - J). Thus understood, I can see no reason why
it would not include a claim for the enforcement of an owner's rights
to property (see also eg Evins v Shield Insurance Co Ltd
1979 (3) SA
1136
(W) at 1141F - G).’
[22] The defendant’s
claim herein is nothing other than a claim for the enforcement of an
owner’s rights to property
as referred to by Brand JA, based
on legislation. As such it is a personal right.
[23] In Leketi v
Tladi NO 2010 [3] All SA 519 (SCA), Mthiyani JA (as he then was) said
at paragraph 8 as follows:
‘[8] In this
context and for the purposes of considering the provisions of the
Prescription Act, the
appellant is the “creditor” and any
obligation on the part of the estate of Albert to restore to its
rightful owner,
property which he fraudulently appropriated is a
“debt” as described in
section 11(d)
of that Act. In
terms of the section, the ordinary period of prescription for the
“debt” is three years from the date
upon which a debt
becomes due.’
Leketi referred,
with approval, to the Barnett and Evins cases. In Mdeyide, supra, the
Constitutional Court referred, with approval,
to both the Barnett and
Desai matters when it said at paragraph 11:
‘Generally
under the
Prescription Act, prescription
applies to a debt. For the
purposes of this Act, the term 'debt' has been given a broad meaning
to refer to an obligation to do
something, be it payment or delivery
of goods or to abstain from doing something.’
[24] The distinction
drawn by Blignaut J in Staegemann is contrary to the authority of the
Supreme Court of Appeal and the Constitutional
Court. In so far as
Staegemann dealt with a vindicatory action, it is distinguishable
from the matter now under consideration.
The defendant claims a
transfer of the immovable property into its name. It is not a
vindicatory claim but the enforcement of
a personal right to claim
delivery of land by registration of title into its name.
[25] Finally, in
Ongopolo Mining Limited v !Uris Safari Lodge (Pty) Ltd and Others
(I3544/2010) [2014] NAHCMD 55 (19 February 2014)
, Damaseb JP
disagreed with the finding in Staegemann and said as follows at
paragraph 42:
‘Staegemann
supports the plaintiff’s exception, except that I am not bound
by it and need not follow it, unless I find
it to be persuasive. With
the greatest respect, I do not consider Staegemann sufficiently
persuasive for the following reasons:
a) the learned judge
did not cite any judgment, reported or unreported, for that
proposition;
b) Under the guise
of being obiter, Blignaut J ignored ex cathedra pronouncements of the
Supreme Court of Appeal making clear that
a debt under the
Prescription Act includes
not only the doing of something or failing
to do something, but also a claim for rei vindicatio;
c) The learned judge
in Staegemann did not refer to Leketi and did not for that reason
distinguish it if it was possible to do so,
and for that reason, the
dictum in Staegemann was reached per incuriam.’
[26] The stare
decisis-rule binds me to apply the law as set out by the Supreme
Court of Appeal and Constitutional Court as set
out in the cases
referred to herein before. Insofar as the decision in Staegemann may
be in conflict with these decisions, I decline
to follow it.
[27] I consequently
conclude and issue an order that the defendant’s claim for
registration of transfer of the property into
the defendant’s
name has become prescribed and the special plea is upheld with costs.
Wepener J
Counsel for
Plaintiff: C. McKelvey
Attorneys for
Plaintiff: Ellis Coll Attorneys
Counsel for
Defendant: M. Strydom (Ms)
Attorney for 1st
Defendant: Ivan Zartz Incorporated
Attorney for 2nd
Defendant: Stanley Brasg and Associates