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[2014] ZAGPJHC 85
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Marneweck and Others v Shabalala and Others (A5030/13) [2014] ZAGPJHC 85 (8 April 2014)
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Certain
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IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. A5030/13
DATE:
8 APRIL 2014
In
the matter between:
GERHARD
MARNEWECK
.................................................................................
1
ST
APPELLANT
BENITA
MARNEWECK
.....................................................................................
2
ND
APPELLANT
NEDBANK
LTD
......................................................................................................
3
RD
APELLANT
and
WELCOME DLOZI
SHABALALA
...............................................................
1
ST
RESPONDENT
HLENGIE HLEZIPHI
MAGGIE
..................................................................
2
ND
RESPONDENT
THE REGISTRAR OF
DEEDS
.....................................................................
3
RD
RESPONDENT
JUDGMENT
MONAMA
J
[1]
The first and second appellants ( “
the
Appellants
”) are husband and
wife. During August 1997 they bought an investment property in T[…],
Johannesburg. The property
is still financed by the third appellant
(financial institution). The debt to the third appellant was secured
by a bond over the
same property. The Property is described as Erf
[…] T[…] T[...], Registration Division I.R. the
Province of Gauteng
in the Deeds Office. The Property is situated at
1[…] and 1[…] S[…] Street, T[…],
Johannesburg (“
the Property”).
[2]
The third appellant is the bank duly registered in terms of the
Company Law and Banking Laws on the Republic of South Africa.
[3]
The first and second respondents (
the
respondents
) are married to each other
out of community of property. They give their address as 1[…]
and 1[…] S[…] Street,
T[…], Johannesburg.
[4]
The third respondent is a State official charged with the management
of the Deeds Office in terms of the Deeds Registries Act
47 of 1937
(“the Act”).
[1]
This
office is vital for the proper administration of land in the Republic
of South Africa.
[5]
During 1997 the appellants bought the Property. They let the property
to tenants. During November 2008 the respondents took
possession of
the property. They evicted the tenants unlawfully. They alleged
ownership of the property.
[6]
The conduct of the respondents stated in paragraph 5 above made the
appellants to investigate. These investigations revealed
that the
property was registered in the names of the respondents who allegedly
purchased it from the appellants for the amount
of R200 000.00
which was paid in cash. The registration was preceded by a written
contract. The agreement was allegedly entered
into by both the
appellants and the respondents. The appellants deny the agreement.
They disputed the copies of the identity documents
used by the
respondents. They challenged the signatures. They alleged that their
identity documents and signatures were forged.
They opened a fraud
case at Booysens Police Station. They alleged that the attorney (Ms
Mabija) used false clearance certificates.
[7]
On 16 February 2010 the appellants launched the motion proceedings in
the court
a quo
for the following relief:
7.1 that the alleged
contract of purchase between them and the respondents be declared
null and void; and
7.2
that the property referred to in paragraph 1 above registered in the
names of the respondents be re-registered in their names.
The
founding affidavit alleged forgery, fraud and theft of identity. The
appellants contended that they are still the registered
lawful owners
of the Property. Their title deed was not cancelled. They never sold
their property to anybody. They are still paying
their bond
obligations to the third appellant.
[8]
The respondents vehemently opposed the application. The respondents
filed an answering affidavit. They raised in the main the
alleged
dispute of facts. These alleged disputes of fact include,
inter
alia,
the existence of the two titles
over the same property and the sale agreement. The respondents
contend that they are the lawful
registered owners. They relied on
the alleged transfer of 2008. They attached a windeed report which
reflects their title to the
Property. Their Title Deed is T[…]
of 2008. The respondents also raised a point
in
limine
of a non-joinder. Save for the
non-joinder issue the remainder of the answering affidavit contained
bare denials.
[9]
On 31 March 2011 the application was fully argued. Eventually, the
application was dismissed with costs. In the written judgment
of 24
May 2013 the court
a quo
ruled that there was a dispute of facts which cannot be resolved on
the papers. It, reiterated the order of 31 March 2011. This
time the
order excluded costs.
[10]
On 24 May 2013 the appellants were granted leave to appeal by the
court
a quo
rely. The appellants rely on the fact that the court
a
quo
erred in holding that a genuine
dispute of facts existed which could not be resolved on the
application and that the dispute was
foreseeable at the time of the
institution of application. The appellants contend that there are no
genuine disputes of fact which
were foreseeable at the commencement
of the motion proceedings claiming the relief mentioned above. They
persisted in this view
even on appeal. They submitted that the court
a quo
should have adopted a robust approach.
[11]
The main issues for consideration are crisp. The first point is
whether there was foreseeable dispute of facts. Secondly, whether
the
alleged disputes could not have been resolved using the “robust
approach”. The last issue is whether the order
in this matter
is appealable.
[12]
The appeal is still opposed by the respondents. Firstly, they argued
that the order of court
a quo
is not appealable. Secondly they contend that there is a serious
genuine dispute of facts. This latter point was not seriously
pursued
in this appeal. Finally the appellants raised the allegations of
fraud, corruption and professional misconduct.
[13]
The following are facts which are common cause or facts which are not
seriously in dispute. The Property is still registered
in the names
of the appellants. It is bonded to the third appellant. The
appellants are still paying the bond instalments. Their
Deed of
Transfer No T[…] and Covering Mortgage Bond No. B[…]
both executed on 7 August 1997 are still valid.
The respondents
produced a windeed report which reflects their deed of transfer as
T[…]. No hard copy of the said Deed of
Transfer is attached to
the respondents answering affidavit. Finally the respondents have
been occupying the property since November
2008.
[14]
It is trite that in motion proceedings the parties must establish
their respective rights in their affidavit. The affidavit
must
contain the essential allegations to sustain either their claim or
their defences. Therefore the affidavits constitute both
the
affidavit and the pleadings.
[15]
Before I deal with the facts and the applicable test, I must remark
about my observations as to how this transaction was handled.
I am
concerned about the roles played by the attorneys, the conveyancers
and possibly the Johannesburg deeds office staff. These
officials
perform one of the most important role in the administration of land
in the province. Their duties are stipulated in
the Act
[2]
and the Attorneys Act 53 of 1997.
[16]
As stated above, the conveyancers and the deeds office staff derive
their authorities from the Act. The Act also defines their
duties. In
certain instances, the deeds office is entitled to rely on the
conveyancer for certain presentations. The Act provides
as follows:
“
-Proof
of certain facts in connection with deeds and documents by means of
certain certificates. – (1) a conveyancer who prepares
a deed
or other document for the purposes of registration or filing in a
deeds registry, and who signs a prescribed certificate
on such deed
or document
, accepts
by
virtue of such signing the responsibility, t
o
the extent prescribed by regulations for the purposes of this
section, for the accuracy of those facts mentioned in such deed
or
document or which are relevant in connection with the registration or
filing thereof, which are prescribed by regulation.
(2) The
provisions of subsection (1) shall apply
mutatis mutandis
to
any person other than a conveyancer –
(a)
Who is prescribed by regulation; or
(b)
Who is authorized by any other law
to prepare a deed or other document for registration or filing in a
deed registry,
and
who has in accordance with the regulations prepared a deed or other
document for registration or filing in a deeds registry.
(3)
A registrar shall accept, during the course of his examination of a
deed or other document is accordance with the provisions
of this Act,
that the facts referred to in subsection (1) connection with the
registration or filing of a deed or other document
in respect of
which a certificate referred to in subsection (1) or (2) has been
signed, have for the purposes of such examination
been conclusively
proved: provided that the aforegoing provisions of this subsection
shall not derogate from the obligation of
a registrar to give effect
to any order of court or any other notification recorded in the deeds
registry in terms of this Act
or any other legal provision, and which
affects the registration or filing of such deed or other document.”
[The underlining and bolding is
for emphasis only]
The
signature on any document which is necessary for the registration
purposes plays an immense role. The signature carries with
it some
responsibility. Accordingly, there are heavy responsibilities placed
on the conveyancers and/or any person acting in matters
of
conveyancing. Notwithstanding the responsibilities alluded to herein,
the registrar’s responsibility is not displaced.
He has an
oversight role to play. However, he can rely on the presentations by
the conveyancer.
[17]
The Registrar of Deeds was served with the notice of motion and
annexures. The founding affidavit contains extremely serious
allegations. However, the said official decided not to participate in
the proceedings. The failure to participate is to be regretted
in
view of the wide scope of its duties and powers and allegations of
false rates and taxes certificate.
[3]
The applicants alleged that:
“
-Zanele
Mabija the principal of the transferring attorney registered the
Property using false rates and tax certificates as R52000.00
is still
outstanding….”
The
above allegations, like the allegations of identity theft and forgery
deserved to have been taken as warning and a sign that
there is
something wrong. These allegations are unchallenged and become
conclusive. Hence I am of the view that there is a
prima
facie
case of dereliction of
duties in that office.
[18]
The roles by Ms M Molepo (the conveyancer) at Chuene Incorporated,
the Hlapolosa Attorneys and Ms Z C Mabija of Mabija Attorneys
requires an investigation. The provision of Section 15A of Act and
Regulation 44A entrusted the conveyancer with the heavy
responsibilities.
Ms Molepo’s explanation is unsatisfactory.
She was a conveyancer who executed the documents before the Registrar
of Deeds.
She made certain representations which were relied upon by
the registrar. She did not ensure the cancellation of the bond on the
Property. The bond constituted a security for the third appellant.
Accordingly, the conduct of the conveyancer contravened her
statutory
duties. She states in her statement that:
“
-normally
they (Hlapolosa Attorney) will bring their already drafted and signed
documents for me to prep and eventually execute
them at the Deeds
Office, Johannesburg.”
It
is not acceptable and certainly not sufficient that she should have
relied on the documents drawn by a third party. That constitute
in my
view a measure of negligence. Regard been had that this property
constituted an investment as well as a security it then
behoved the
conveyancer to become even more vigilant and not prejudice the
appellants and the bond giver.
[19]
My views about the conveyancer apply
mutatis mutandis
to
Hlapolosa Attorneys and Ms Mabija. The latter must explain what
happened to the purchase price as well as other allied issues.
She
cannot claim to be unaware of the serious allegations against her.
After all, she commissioned the answering affidavit and
certified the
respondents identity documents, so she is aware of the allegations
directed at her. [21] Ms Mabija an attorney practicing
under the
names and style Mabija Attorneys received the alleged purchase price.
She commissioned the answering affidavit and certified
the copies of
the identity documents used in the transaction by the respondents.
She is accused of a serious offence. In the founding
affidavit the
appellants alleged that:
“
-Zanele
Mabija the principal of the transferring attorney, registered the
property using a false rates and tax certificates as R52,
000.99 is
still outstanding on the property in respect of rates and taxes.”
The
above allegation is serious and one would expect an attorney to
respond thereto even if he is not a party to the proceedings.
I am
deeply worried about her silence as she must be aware of the
allegations due to her close association with the transaction
in
question. For that reason I am of the view that the matter warrants
investigation by the relevant regulatory body.
[20]
Cumulatively, all the people referred to herein have caused the
appellants some great financial hardship. Forgery is rife and
is a
serious offence.
[20]
The issues in this appeal demonstrate the problem of building, houses
hijacking in the areas falling within the jurisdiction
of the City of
Johannesburg. The hijacking is well organised and intensive. It
is prevalent in the area of La Rochelle, Rosetenville,
Turffontein
and Moffat View where approximately 50% of the houses have been
hijacked. The City of Johannesburg has or a long time
experienced
substantial number of hijacked
[4]
buildings using forged and fake documentation. The financial
institutions, the property owners have endured financial hardship
because of the said conduct. Therefore, the conduct of the
Respondents and their attorneys is a great concern.
[21]
I now turn to the main argument advanced on behalf of the
respondents. The respondents contend that the order of court
a
quo
dismissing the application is not
appealable. It is trite that “interlocutory” orders are
not appealable. However,
.the respondents’ submission is
without merit. The
argument is based
on the wrong interpretation of the law.
[22]
The test of appealability of an order is stated in the
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd.
In
that case the court held that:
“…
a
preparatory or procedural order is a simple interlocutory order and
therefore not appealable
unless
it is such as to ‘
dispose
of any issue or any portion of the issue in the main action or suit’
or,
which amounts, I think, to the same thing, unless it irreparably
anticipates or precludes some of the relief which would or
might be
given at the hearing
”.
[5]
[The
underlining mine for emphasize].
Recently
the Supreme Court of Appeal re-affirmed the test and stated that:
“
-A
‘judgment or order’ is a decision which, as a general
principle, has three attributes, first, the decision must be
final in
effect and not susceptible of alteration by the court of first
instance; second, it must be definitive of the rights of
the parties;
and third, it must have the effect of disposing of at least a
substantial portion of the relief claim in the proceedings
.”
[6]
Accordingly,
the approach to be adopted by the court is simple. The courts do not
only look at the form but the substance of the
order as well. If the
order disposes of any portion of the issue in the main action or suit
that is the end of the matter. The
order then becomes appealable.
[23]
The order appealed against is, in my view, definitive and final.
There is nothing more that the appellants can do in the court
a
quo
.
They cannot rescind the judgment. Any action by the appellants to
resuscitate the issue between parties is likely to be
defeated by the
application of the
res
judicata
principle. The argument that the applicants can reinstate the matter
is flawed. Therefore, the argument of non-appealability must
fail.
The Respondents reliance on the decision of
Vena
v Vena and Another
[7]
and
Webber
Wentzel v Batstone and Another
[8]
do not support their proposition. Both cases deal with the striking
and amendment and not dismissal of an action.
[24]
The appellants dispute the documents
[9]
which were used before and during the transfer. They attach their
original documents.
[10]
The
appellants alleged,
inter
alia
,
fraud of their identities and their signatures. Yet the Respondents
do not challenge these documents nor the allegations of fraud
[11]
in their answering affidavit.
[25]
The respondents’ version is fraught with some immense
difficulties and the appeal is bound to succeed. The test to
determine
the existence of a dispute of fact is trite. The court must
decide whether the dispute is a genuine
[12]
dispute of fact. Therefore, the party who relie on a defence of a
dispute of fact must established it in the affidavit.
[13]
The
affidavits constitute both the facts and evidence. The litigants are
expected to establish their rights in their affidavits.
It has been
said time and time again that a bare denial as the Respondents have
done will not suffice. However, even when there
is a dispute of fact
the court is entitled to take a robust approach if the case
is justified
in the circumstances.
The contents
of the affidavits are the facts which the opponents are asked to act
upon. Even where there are genuine facts the court
is enjoined to
take a robust attitude. The purpose of the affidavits is to inform
the involved parties about the matter. Therefore
the affidavits must
be so drawn as to inform the other party what the matter is about and
the facts relied upon.
In casu
there
is no genuine dispute of fact. The court
a
quo
erred in this regard. If I am wrong
on this point, the robust approach should have been followed.
[26]
The facts of this case are straightforward. The appellants have
raised fraud by respondents. They have accused the attorneys
about
the false clearance certificate. The appellants’ claim is well
established in the founding affidavit. It is supported
by the
undisputed title deed document, the necessary bond documents, a
scheduled of bond payments documents and the appellants’
undisputed identity documents.
[27]
The third appellant has not entered the proceedings. The failure is
not fatal. Third appellant’s participation would
not have taken
the application any further. The said failure is different from the
failure by the third respondent, who was expected
to explain the
clearance certificates, the alleged registration of another title on
the Property without the proper cancellation
of the existing title.
Above all. The third respondent has oversight responsibility.
[28]
The respondents’ raised a mere bare denial in their answering
affidavit. This gives an impression that they fail to appreciate
and
understand the functions of the affidavits They outsourced their
responsibilities to respond to the very serious allegations
to the
third parties. They raised unnecessary and unsustainable points
in
limine
of non-joinder.
[29]
The appellants acquired the title to the Property in 1997. The
Property became maintainable and protected against the whole
world.
They acquired a higher right, even though we have a negative system
of land of registration. The conveyancer who appeared
before the
Registrar of Deeds ought to have known that there was a bond over the
property. She ought to have called for cancellation
figures and given
guaranties. None of these was done. This omission demonstrates
extreme form of negligence. In terms of Section
56 of Act, the
Registrar is forbidden to transfer of hypothecated property unless
the bond is cancelled. This is so because the
bond is a real
security. But he might have relied on the presentation by the
conveyancer. Mr Molepo’s conduct contravenes
her duties as a
conveyancer.
[30]
In the circumstances, I make the following order. The appeal is
upheld to the extent that the order of the court
a
quo
is set aside and substituted with
the following:
1.
The written offer to purchase dated 18 April 2008 and which is
annexed to the notice of motion as annexure “NOM1”
be and
is hereby declared null and void.
2.
The registration of the property described as ERF […] T[…]
T[…], Registration Division I.R the Province
of Gauteng,
extent 991 square meters held under deed of transfer number T[…]
into the name of the first and second respondent
be and is hereby
cancelled.
3.
The property be re-transferred into the first and second appellants’
names.
4.
The first and second respondents are ordered to pay the costs of this
appeal.
5. The copy of this
judgment and the entire record should be send to the Registrar of
Deeds, Johannesburg and the Law Society of
the Northern Province for
their further attention. This must be done by the Registrar of the
High Court without any delay.
___
RE
MONAMA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
_____________
DSS
MOSHIDI
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
________
AA
LOUW
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
For
the appellants: Adv. HJ Smith
Instructed
by: Cliff Dekker Hofmeyr Inc, Johannesburg
For
the respondents: MW Dlamini
Instructed
by: Ditheko Lebethe Attorneys
Date
of hearing: 26 February 2014
Date
of judgment: April 2014
[1]
In
terms of
Section
3 of the Act.
[2]
Sections
3, 15 and 15A of Act 47 of 1937 Read with regulation 44A.
[3]
Page
12 Paragraph 20.2 of the Record.
[4]
See:
Star Newspaper of 31 March 2014.
[5]
1948(1)
SA 839 (AD) at 870.
[6]
Zweni
v Minister of Law and Order
1993(1)
SA 523 AD at 532J-533A.
[7]
2010
(2)SA 248 (ECP).
[8]
1994
(4) SA 334 (T)
[9]
Pages
50 and 51 [Annexures “E1” and “E2”].
[10]
Pages
52 and 53 [Annexures “F1” and “F2”]..
[11]
Page
12 Paragraphs 20.2 – 20.4 of the Founding Affidavit vis-à-vis
Page 55 Paragraph 19 of the answering affidavit.
[12]
See:
The Civil Practice of High Court Vol.1 Page 293.
[13]
Pountas
Trustee v Lahanas
1924
WLD 67
at 68.