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[2014] ZAGPJHC 209
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Balduzzi v Rajah (17136/2007) [2014] ZAGPJHC 209 (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;
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 ss 48(3) to (10) are peremptory and the
failure to effect transfer
in terms thereof does not affect the
rights created in terms of s 48(2). On the assumption that the rights
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 ss
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
squarely based on its entitlement
to the property by virtue of the
provisions of s 48(2) of the Abolition Act. It 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, were 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 provided 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 ss 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 ss 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 para 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
ss 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.
Similarly, the matter in Bester dealt with rectification
of a title deed. The law of rectification requires an error to have
been
made in order to then 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 therefor distinguishable from the
facts in
this matter.
[13] 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.’
[14] 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. 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 164
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.’
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).’
[16] 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 para 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 anunregistered 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).’
[17] The causa which establishes the
right, whether being an agreement or legislation, does not itself
confer a real right. It is
a ius in persona ad rem acquirendam or
‘vorderingsreg’ or legal claim to acquire a real right.
[18] 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).’
[19] In Barnett v Minister of Land
Affairs and Others
2007 (6) SA 313
(SCA) at para 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).’
[20] 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.
[21] In Leketi v Tladi NO 2010 [3] All
SA 519 (SCA), Mthiyani JA (as he then was) said at para 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 para 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.’
[22] 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 a
personal right to
claim delivery of land by registration of title
into its name.
[23] 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 para 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.’
[24] 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.
[25] 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 that the special plea should be 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