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[2015] ZAGPJHC 184
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Rampedi and Another v Njisane and Others (03876/2014) [2015] ZAGPJHC 184 (3 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 03876/2014
DATE: 03 AUGUST 2015
In the matter between:
MADUMO WINSTON
RAMPEDI
................................................................................
First
Applicant
THABEIKI
RAMPEDI
...............................................................................................
Second
Applicant
And
LULAMA ZENITHI
NJISANE
..................................................................................
First
Respondent
MZUKISI
NJISANE
................................................................................................
Second
Respondent
HENDRIE ANDRES
MARIAS
............................................................................
First
Interested Party
REGISTRAR OF DEEDS,
JOHANNESBURG
...........................................................................................
Second
Interested Party
ABSA BANK
LIMITED
.....................................................................................
Third
Interested Party
J U D G M E N T
KEIGHTLEY, AJ
:
INTRODUCTION
[1] The applicants in this matter are Mr and Mrs Rampedi. They
are the registered owners of certain immovable property, situated
at
3…. V….. Street, R……, Roodepoort (“the
property”). They took transfer of the property
on or
about 11 December 2013.
[2] The respondents are Mr and Mrs Njisane. They were the
previous registered owners of the property. They have remained
in
occupation of the property notwithstanding its transfer to the
Rampedis.
[3] In the main application, the Rampedis seek an order evicting the
Njisanes from the property on the basis that they (the Rampedis)
are
the lawful owners of the property, and the Njisanes are in unlawful
occupation.
[4] The Njisanes oppose the eviction application. In addition,
they have instituted a counter-application. In essence,
it is
aimed at declaring the transfer of the property to the Rampledis to
be invalid, and directing that the property be re-transferred
to the
Njisanes. Clearly, if I find in favour of the Njisanes in their
counter-application, the eviction application will
fall by the
wayside, as it is squarely based on the Rampedis being the lawful
owners of the property.
[5] This is not the end of the matter, however, as the Rampedis in
turn have filed a conditional counter-application, the details
of
which I deal with later.
[6] Before dealing with the merits of the main and
counter-applications, it is necessary to set out the history of the
dispute
between the parties.
HISTORY OF THE DISPUTE
[7] The Njisanes were married in community of property. The
property formed part of their joint estate. On 5 December
2012
a decree of divorce was issued terminating their marriage (“the
divorce order”). The divorce order included
a proprietary
order with specific provisions in respect of the property. It
provided as follows:
“
Appointment of Receiver (Liquidator)
:
Mr HENDRIE ANDRIES MARIAS of H A MARAIS TRUSTEES CC is appointed as
receiver to deal with the asset refered (
sic
) to in para 7.2.1
and to deal with same as per para 7.2.1 to 7.2.4 of Exhibit ‘B’.”
(emphasis in the original)
[8] Mr Hendrie Andries Marais, referred to in the divorce order, has
been joined in these proceedings as the first interested party.
I will refer to him as “the liqudator” to avoid
introducing too many personalities into my judgment.
[9] Exhibit B referred to in the divorce order was the settlement
agreement entered into between the parties. It was made
an
order of court in terms of the divorce order.
[10] The relevant terms of the settlement agreement included the
following:
[10.1] The liquidator, who was expressly identified as Mr Marias, was
to be appointed “
to dispose of the immovable property
(and) … to divide the nett (sic) proceeds between the parties
”
after the deduction of various amounts. These included the
deduction of the amount owing on existing bonds, the Njisane’s
share of the rates and taxes due and any other costs associated with
the fulfillment of the Njisane’s obligations under the
agreement of sale. This was recorded in clause 7.2.1.
[10.2] In terms of clause 7.2.2, “
both parties agree(d) that
they shall co-operate with Mr Marais with regard to the sale of the
property, whether by private purchaser
or auction, and that neither
shall attempt to obstruct the other or Mr Marais
.”
[10.3] Clause 7.2.3 recorded that the parties agreed that “
as
soon as the property has been sold, they will co-operate with regard
to signature of essential documentation necessary to pass
transfer
when called upon by Mr Marais or his agent to do so
”.
[10.4] In terms of clause 7.2.4, the transfer was to be done by Van
Rensburg Attorneys.
[10.5] Clause 9 constituted a non-variation clause providing that no
variation, or abandonment or waiver of any rights or obligations
would be binding unless they were reduced to writing and signed by
both parties.
[11] The liquidator proceeded to sell the property by way of a public
auction. The auction was held on the premises of the
property
on 18 January 2013. It is common cause that Mrs Njisane and Mr
Njisane were present on the premises when the auction
took place.
Mr Njisane’s then attorney was also present. Various
issues are raised by the Njisanes about what
did and did not take
place at the auction and thereafter. To the extent that they
are materially relevant to the legal issues
raised, I will deal with
them later.
[12] There was some to-ing and fro-ing before the liquidator finally
accepted an offer on the property. The details are not materially
relevant. What is relevant is that after putting in an initial
offer on the property at the auction, Mr Rampedi subsequently
upped
his offer against a later, higher offer by a third party. In so
doing, Mr Rampedi secured the property for R950 000.
00. The
offer was accepted by the liquidator on 8 March 2013.
[13] On 20 March 2013, the liquidator instituted an urgent
application to compel Mrs Njisane to permit access to the property
for purposes of obtaining a valuation and electrical compliance
certificate (“the liquidator’s application”).
The application became necessary after Mrs Njisane refused to permit
access to the property by a valuator who had been appointed
to value
the property for purposes of the Rampedi’s bond application.
[14] Mrs Njisane opposed the liquidator’s application.
She filed an answering affidavit on 27 March 2014. In
it she
averred, among other things, that she and Mr Njisane had decided that
she would take over ownership of the property against
payment to him
for his half share, and that they no longer wanted to proceed with
the sale of the property. She stated that
she and Mr Njisane
had already prepared an addendum to the settlement agreement to this
effect. Furthermore, she stated that
she had instructed her
attorneys to lodge an application to challenge the sale of the
property. She indicated that she would
ensure that a copy of
that application was produced at the hearing.
[15] The liquidator disputed the existence of the alleged agreement
between the Njisanes, and noted that Mr Njisane had not annexed
it to
her affidavit.
[16] It is common cause that the Njisanes have never produced a copy
of the alleged agreement between them amending the settlement
agreement, nor was an application made to court to amend the divorce
order in this respect. It is also common cause that
Mrs Njisane
did not institute proceedings to set aside the sale agreement entered
into by the liquidator as she averred she had
instructed her
attorneys to do.
[17] The court granted the liquidator’s application on or about
17 April 2013.
[18] The Rampedis secured a mortgage bond and complied with their
other obligations under the sale agreement. They also paid
amounts outstanding by the Njisanes in respect of rates and taxes to
ensure that a rates clearance certificate was obtained.
[19] Mr Njisane was not a party to the liquidator’s
application. Until 29 October 2013 Klinkenberg Inc attorneys
(“Klinkenberg”)
represented Mr Njisane. From January 2013
until they ceased to represent Mr Njisane, a series of letters was
exchanged between
Klinkenberg, on behalf of their client, and the
liquidator pertaining to the sale of the property.
[20] It is not necessary to deal with these letters in detail.
It is clear from them that Mr Njisane’s most pressing
concerns
were directed at when he would be required to vacate the property
pursuant to the sale at auction, and what price the
property had
fetched.
[21] Significantly, for reasons that will appear later, on 20 March
2013, Klinkenberg requested the liquidator to provide them
with “
a
copy of the signed offer that was
accepted by yourself on
behalf of our client and Ms Njisane
” (emphasis added).
From mid-July 2013, the correspondence shows that Klinkenberg were
advised twice by the liquidator
that he was awaiting transfer of the
property. This was after Klinkenberg had requested a progress
report from the liquidator.
[22] There was no reference in any of the correspondence from
Klinkenberg to the alleged agreement between the Njisanes regarding
Mrs Njisane’s take over of the property. Nor was there
any reference to the alleged agreed amendment to the settlement
agreement, or to the Njisanes no longer wanting to pursue the sale of
the property to the Rampedis.
[23] In the following months the transfer process took its course.
The liquidator appointed Scholtz Attorneys as the conveyancers
to
attend to the transfer. In their affidavits supporting their
counter-application the Njisanes made something of the fact
that the
settlement agreement identified a different firm of attorneys to deal
with the transfer. However, at the hearing
before me counsel
for the Njisanes confirmed that they were not pursuing a case of
collusion between the liquidator and Scholtz
Attorneys. In the
circumstances, nothing turns on this.
[24] The liquidator signed the relevant transfer documents. The
power of attorney to pass transfer is dated 14 October 2013.
It
specifically records that the liquidator passes the power of attorney
“
in (his) capacity as Liquidator and Receiver
” of
the Njisanes, and as “
duly appointed by virtue of a Court
Order dated 5 December 2012
”. The liquidator’s
signature appears above the description “
The Liquidator and
Receiver of
” each of the Njisanes.
[25] By early December 2013 the transfer documents were lodged and
registration of transfer was pending.
[26] On 2 December 2013 the Njisanes purported to terminate the
liquidator’s mandate by advising him that they had decided
to
do so. They requested that he urgently stop the transfer of the
property. The liquidator’s refusal to do so
in the
absence of a valid termination of his mandate led to the Njisanes
launching an urgent application in this court (“the
urgent
application”). They sought an order terminating the
liquidator’s mandate, and interdicting him from transferring
or
disposing of the property to any third party. In part B of
their application (which was not sought on an urgent basis)
they
sought the removal of the liquidator and the reversal of the sale to
the Rampedis.
[27] In their urgent application the Njisanes averred that they had
“
decided not to proceed with the sale or disposition of this
aforesaid property
using the services of the first
respondents (sic) as a liquidator
of our asset
”
(emphasis added). They stated that this was because they no
longer had confidence in him. According to the Njisanes,
they
were “
jointly abandoning
” that part of the divorce
order appointing the liquidator.
[28] The urgent application was dismissed for lack of urgency.
[29] On 13 December 2013 the transfer of the property to the Rampedis
was registered.
[30] As I indicated earlier, the Njisanes have never vacated the
property. I was advised by their counsel at the hearing
that
pending the settlement of the present dispute the Njisanes have
declined to accept payment of the net proceeds of the sale
of the
property. However, the effect of the transfer was to cancel
their mortgage bond obligations to First National Bank.
The
Rampedis, on the other hand, disclose in their affidavits that they
(the Rampedis) have assumed and met mortgage bond commitments
to Absa
Bank in the amount of R7698. 00 per month.
[31] This state of affairs led to the Rampedi’s eviction
application and, in turn to the Njisane’s counter-application.
THE ISSUES RAISED IN THE APPLICATIONS
[32] As I have indicated, the Ramedis seek the eviction of the
Njisanes on the basis that they (the Rampedis) are the owners of
the
property and that the Njisanes are in unlawful occupation. The
Rampedis submit that they have complied with the requirements
for the
granting of an eviction order under the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act
[1]
(“PIE”).
[33] The Njisanes raise a technical point regarding compliance with
PIE.
[34] The necessity to determine the eviction application only becomes
relevant if I find against the Njisanes in their
counter-application.
This is because their counter-application
is based squarely on an attack on the valid transfer of ownership to
the Rampedis.
[35] There are three legs to the Njisane’s attack on the
validity of the transfer of ownership to the Rampedis:
[35.1]In the first instance, they contend that the liquidator acted
fraudulently in transferring the property to the Rampedis.
[35.2]Second, they contend that the liquidator had no authority under
the divorce order and settlement agreement to sign the necessary
transfer documents on their behalf.
[35.3]Finally, they contend that at the time of transfer they had no
intention to transfer the property to the Rampedis.
From a
legal point of view, this boils down to a contention that the “real
agreement” necessary for the transfer of
ownership was absent
at the time of registration of transfer.
[36] In heads of argument handed to the court at the hearing of the
matter counsel for the Njisanes submitted that the allegations
of
fraud on the part of the liquidator raised material disputes of fact
that were not capable of resolution on the papers before
me. On
this basis, he argued as a point
in limine
that I should not
dismiss the counter-application without a referral to oral evidence.
[37] The Rampedis dispute each of the three legs of the
counter-application. They also take issue with the contention
that
there are material disputes of fact warranting a referral to
oral evidence.
[38] In addition, the Rampedis filed a conditional
counter-application. It is conditional on the court finding in
favour
of the Njisanes in their counter-application and declaring the
registration of transfer invalid. In this event, the Rampedis
seek an order directing the Njisanes to sign all documents and to
take all the necessary steps to effect a valid transfer of the
property to the Rampedis.
[39] The conditional counter-application is premised on the existence
of a binding sale agreement in respect of the property.
The
Rampedis submit in this regard that even if there were defects at the
time of transfer of the property, the sale agreement
itself was valid
and binding on the Njisanes. Accordingly, they submit that the
Njisanes are bound to comply with the obligations
placed on them
under the agreement, and to effect a valid transfer of the property
to the Rampedis.
[40] The core of the present dispute lies in the Njisane’s
counter-application. As such, I will deal with it first.
In so doing, I will consider the submissions made on their behalf
that I should not dismiss their counter-application without a
referral to oral evidence.
[41] If I order a referral to oral evidence, the remaining issues
will be dependent on the outcome of the proceedings that follow.
[42] If I find in favour of the Njisanes on their counter-application
without a referral to oral evidence, this will dispose of
the
eviction application regardless of the outcome of the Rampedi’s
conditional counter-application. However, a finding
in favour
of the Njisanes will necessitate that I consider the Rampedi’s
conditional counter-application.
[43] If, on the other hand, I find that there are no material
disputes of fact warranting a referral to oral evidence, and I find
against the Njisanes on their counter-application, the only further
issue that will remain to be determined is the eviction application.
THE COUNTER-APPLICATION
[44] The first issue to be determined for purposes of the Njisane’s
counter-application is whether the liquidator acted fraudulently
in
transferring the property to the Rampedis.
[45] The Njisanes intitially submitted that the liquidator had
committed fraud by signing the transfer documents when he lacked
the
authority to do so under the divorce order and settlement agreement.
Their contention, as I explain in more detail shortly,
is that they
were the only persons authorised to sign the transfer documents.
[46] The difficulty with this line of argument, of course, is that at
best for the Njisanes, it establishes no more than that the
liquidator was mistaken as to the extent of his authority under the
divorce order, not that he acted fraudulently. This is
particularly so given that counsel for the Njisanes confirmed that
his clients were not placing reliance on any alleged collusion
between the liquidator and other parties regarding the transfer.
[47] As the hearing proceeded, counsel for the Njisanes clarified his
clients’ position regarding the allegation of fraud
on the part
of the liquidator. He confirmed that it was limited to the
contention that the fraud was committed by the liquidator
placing his
own signature above the names of the Njisanes on a document headed
“
Bond cancellation information sheet required for possible
refunds on bond accounts
”.
[48] There is no evidence to suggest, let alone establish, that the
liquidator intended to mislead anyone in signing the document
as he
did. It appears to have been a standard form document prepared
by the conveyancers. The names “
Lulama Zenith Njisane
”
and “
Mzukisi Njisane
”, above which the
liquidator’s signature appears, are typed in. Quite
clearly the names were inserted by
the conveyancers as part of the
standard form of the document. A file reference number appears
below the names and signatures.
This indicates that the
document was part of a fuller set of documents contained in the
relevant conveyancing file.
It did not stand on its own.
Critically, as I indicated earlier, the liquidator properly disclosed
and described the authority
under which he was attending to the
transfer of the property in the power of attorney to pass transfer.
[49] Therefore, it is inconceivable that anyone involved in the
conveyancing process was misled by the liquidator signing above
the
names of the Njisanes on the bond cancellation information sheet.
It is also inconceivable that the liquidator intended
to mislead
anyone is this regard. Anyone involved in the conveyancing
process would have understood that in signing his name
above the
Njisane’s names the liquidator was signing on their behalf in
the capacity described in the power of attorney to
pass transfer.
[50] Given the limited ambit of the Njisane’s case based on the
liquidator’s alleged fraud, there is clearly no warrant
for a
referral to oral evidence in this regard. The issue is
eminently capable of resolution on the papers.
[51] I find that there is no merit in the Njisane’s contention
that the liquidator acted fraudulently in the transfer of
the
property. Accordingly, the Njisane’s must fail on the
first leg of their counter-application.
[52] The second leg of the counter-application is grounded on the
alleged absence of authority on the part of the liquidator to
sign
the transfer documents.
[53] The Njisanes accept that the liquidator was authorised to act as
their agent under the divorce order. However, they
contend that
these powers were circumscribed by the terms of the order and, in
particular, its reference to paragraphs 7.2.1 to
7.2.4 of the
settlement agreement. The Njisanes say that they understood
that the effect of these provisions was that the
liquidator did not
have the power to sign on their behalf.
[54] The Rampedis dispute the interpretation relied on by the
Njisanes. They contend that the divorce order gave the
liquidator
the powers to sign the transfer documents and that he
acted within the scope of his authority in doing so.
[55] The issue of whether or not the liquidator had the necessary
authority to sign the transfer documents ultimately turns on
the
proper interpretation of the divorce order and settlement agreement.
There are no material disputes of fact warranting a referral
to oral
evidence in this regard. The points of contention between the parties
are easily resoluble on the papers.
[56] The Njisanes place reliance on paragraph 7.2.3 of the settlement
agreement as the cornerstone of their contended interpretation
of the
liquidator’s powers. They submit that by agreeing to
“
co-operate with regard to the signature of essential
documentation necessary to pass transfer when being called upon to do
so by
(the liquidator)
”, they retained for themselves the
power to sign the transfer documents. In other words, their
contention is that this
provision required to liquidator to present
the transfer documents to them for signature and prohibited him from
signing the transfer
documents on their behalf.
[57] In interpreting documents courts must attribute meaning to the
words used. A number of factors guide this process.
These
include the language itself, the context in which the relevant words
appear, the purpose of the provision in question, the
circumstances
in which the document came about, and what was known to the parties
at the time. Interpretation is an objective
rather than a
subjective exercise. A sensible meaning must be preferred
to one that leads to insensible or unbusinesslike
results, or that
undermines the apparent purpose of the document.
[2]
[58] As far as the wording of the relevant provisions is concerned,
the settlement agreement gave the liquidator the power “
to
dispose
” of the property. The liquidator was
appointed for purposes of dealing with the Njisane’s immovable
property.
The way in which immovable property is disposed of in
our law is to effect a registration of transfer in the name of the
new owner.
Therefore, it seems plain to me from the language
used in describing the liquidator’s appointment that his powers
were intended
to be wide enough to permit him to sign the transfer
documents on behalf of the Njisanes. In the absence of a
clear
contrary intention, the power of disposal of immovable property
must include the power to do all that is necessary to effect the
transfer of the property, including signing the transfer documents.
[59] On this interpretation, the effect of clause 7.2.3 was to ensure
that if the liquidator elected to request the Njisanes to
sign the
transfer documents they were obliged to do so. The Njisanes
submit that this interpretation is not correct.
They submit
that the use of the word “
when
” in clause 7.2.3 is
an indication that the liquidator was required to obtain their
signatures on the transfer documents.
They submit that if the
liquidator was intended to have an election in this regard, the word
“
if
” would have been used instead.
[60] In my view, the Njisane’s contrary interpretation
overlooks a critical factor, viz. the purpose of the settlement
agreement,
and clause 7 in particular.
[61] The purpose of the provision was to ensure that the property
would be disposed of and the net proceeds divided between the
parties. The papers filed by the parties indicate that the
Njisane’s divorce was acrimonious. Although they
ultimately reached a settlement, they could not agree on the manner
in which the property should be divided between them. It
was
for this reason that the liquidator was appointed specifically to
deal with the disposal of the property.
[62] On the Njisane’s interpretation of clause 7.2.3, there is
no fallback provision in the event that either or one of them
failed
to co-operate with the liquidator in signing the transfer documents.
It does not say that in the event of a refusal
to co-operate the
liquidator would be authorised to sign the transfer papers.
This means that the liquidator would have been
required, in those
circumstances, to approach the court for an order directing the
recalcitrant party to sign. This is because,
on their
interpretation, only the Njisanes could sign the transfer documents.
[63] An arrangement of this sort is incompatible with the underlying
purpose of the appointment of the liquidator. It would
lead to
an inevitable delay in reaching finality on the division of the
property between the parties. This was the very purpose
for
which the liquidator was appointed. In the circumstances, it
seems to me that the adoption of the Njisane’s interpretation
of the settlement agreement would have an insensible and
unbusinesslike result.
[64] On the other hand, the interpretation favoured by the Rampedis
aids the underlying purpose of the provision. It gives
the
liquidator the choice of securing the signatures of the Njisanes on
the transfer documents, or simply signing the documents
himself.
In this way, the ultimate aim is more readily achieved, viz. to
dispose of the immovable property with as little
further disputation
as possible. Accordingly, in my view, preference should be
given to the interpretation favoured by the
Rampedis.
[65] There is a further reason for preferring the Rampedi’s
interpretation of the liquidator’s powers to that of the
Njisanes. The Njisanes aver that their understanding of the
powers accorded to the liquidator was that only they would have
the
authority to sign the transfer documents. However, the facts do
not support this averment.
[66] I referred earlier to the chain of correspondence between
Klinkenberg, on behalf of Mr Njisane, and the liquidator.
The
correspondence discloses an express understanding on the part of Mr
Njisane, at least, that the liquidator had the authority
to sign the
sale agreement on behalf of the Njisanes. Had Mr Njisane
believed that this authority did not extend to the liquidator
signing
the transfer documents, I would have expected some reference to this
in the correspondence that followed. However,
on the contrary,
despite the fact that Mr Njisane was advised on more than one
occasion, from mid-July 2013, that the liquidator
was awaiting
transfer of the property, he again raised no question about the
liquidator’s alleged absence of authority to
sign the necessary
transfer documents.
[67] For this reason I am unable to accept the Njisane’s
averment that it was the common understanding of the parties that
the
liquidator did not have the authority to sign the transfer documents.
[68] It follows that on the question of the authority of the
liquidator I find that on a proper interpretation of the relevant
provisions of the settlement agreement the liquidator was accorded
the authority to sign the transfer documents.
[69] As indicated by the power of attorney to pass transfer, he did
so expressly in his capacity as liquidator under the divorce
order,
which incorporated the settlement agreement. It is common cause
that the liquidator did not request the Njisanes to
sign the transfer
documents. In my view, under the terms of his appointment, he
did not have to do so. He had already
experienced obstruction
from Mrs Njisane in his attempts to effect a sale of the property,
necessitating an urgent application
to court. Given the
prevailing situation, the liquidator cannot be faulted for proceeding
to sign the transfer documents
himself.
[70] In these circumstances, I find that there was no defect in the
transfer of the property to the Rampedis stemming from an absence
of
authority on the part of the liquidator.
[71] The final leg of the Njisane’s counter-application rests
on the contention that, at the time of the registration of
transfer,
they had no intention to transfer the property to the Rampedis.
In other words, they submit that there was no real
agreement to
transfer the property, rendering the transfer invalid.
[72] As will appear more clearly from my discussion of the relevant
issues, below, it is possible to determine this question on
the facts
as they appear in the papers, without the necessity for a referral to
oral evidence.
[73] It is well settled that our legal system follows the abstract
theory of transfer, and that this extends to the transfer of
immovable property.
[3]
In terms of the abstract theory, the transfer of ownership is
dependent on two elements. The first, delivery, being
the
objective element, and what is referred to as the real agreement (or
“saaklike ooreenkoms”), being the subjective
element.
[74] The real agreement requires an intention on the part of the
transferor to give ownership, and a corresponding intention on
the
part of the transferee to receive ownership. This intention
must exist at the time of transfer. If there is an
absence of
such intention, the purported transfer of ownership, even if
registered, will be invalid. The real agreement cannot
be
equated to the underlying agreement establishing the
causa
for
the transfer, i.e. the agreement of sale in respect of the property.
Thus, a defect in the underlying agreement does
not necessarily lead
to a defective real agreement. The question whether transfer of
ownership has validly taken place will
depend on whether or not there
is a defect in the real agreement.
[4]
[75] The Njisane’s contend that at the time of transfer they
had no intention of transferring the property to the Rampedis.
They aver that it had long been their intention to transfer the
property to Mrs Njisane, rather than to a third party, and that
this
intention was communicated to the liquidator. In addition, they
point to their urgent application, which sought the
removal of the
liquidator and an interdict against the transfer of the property to
the Rampedis. This, they say, further
evidences the absence of
an intention on their part to transfer the property.
[76] Regarding the first of these averments, the evidence simply does
not support a finding that the Njisanes had agreed to transfer
the
property in full to Mrs Njisane, rather than to sell it to a third
party.
[77] As I highlighted earlier, on 27 March 2013, in response to the
liquidator’s application, Mrs Njisane stated that the
parties
had agreed to transfer the property to her, and that they had
completed an addendum to the divorce order to give effect
to this
agreement. The Alienation of Land Act requires a written and
signed deed of alienation for the effective alienation
of land.
[5]
The divorce order and settlement agreement required that any
amendment to the settlement would not be effective unless reduced
to
writing. To date the Njisanes have failed to produce any
document evidencing their alleged agreement to transfer the property
to Mrs Njisane or the alleged addendum to the settlement agreement.
[78] This leads to the inescapable conclusion that the alleged
agreement does not exist.
[79] This conclusion is supported by the content of Klingenberg’s
correspondence with the liquidator, referred to earlier.
From
this correspondence it is evident that Mr Njisane had not agreed to
the sale of the property to Mrs Njisane. Had this
been the
arrangement between the parties, Mr Njisane’s attorneys would
have dealt with this in their communications with
the liquidator.
If Mr Njisane had not agreed to the arrangement alleged by Mrs
Njisane, then no such arrangement existed,
no matter how strongly Mrs
Njisane may have hoped or believed that her ex-husband might support
her if asked.
[80] It is also telling that in their founding papers in their urgent
application launched on 4 December 2013 the Njisanes did
not aver
that they wanted to halt the transfer of the property to the Rampedis
because they had agreed that Mrs Njisane would take
full ownership.
In the founding affidavit of Mrs Njisane, which is confirmed by Mr
Njisane, it is stated that they “
have decided not to proceed
with the sale or disposition of this aforesaid property
using
the services of the (liquidator)
” (emphasis added).
This, they alleged, was because they no longer had confidence in
him. Throughout the affidavit,
reference is made to their
decision not to proceed with the transfer
through the liquidator
.
It is clear from this that the basis of the Njisane’s urgent
application, and their bid to halt the transfer of the
property, as
stated at the time, was because they had lost confidence in the
liquidator. It was not to give effect to an
alleged existing
agreement between them to transfer the property to Mrs Njisane.
[81] For these reasons, I find that the Njisane’s averment that
they had agreed to transfer the property to Mrs Njisane,
rather than
to proceed with the sale to the Rampedis, must be rejected.
There was no defect in the real agreement on this
basis.
[82] That leaves for determination the Njisane’s second
contention regarding the absence of a real agreement to transfer
the
property to the Rampedis. The Njisanes purported to revoke the
liquidator’s appointment on 2 November 2013, and
they launched
an urgent application to do so, and to halt the transfer of the
property to the Rampedis, on 4 November 2013. Does
this conduct on
their part render the real agreement defective?
[83] In my view, it does not.
[84] While the real agreement is generally referred to as the
“subjective element” in the transfer process, this does
not mean that the Njisane’s subjective state of mind is
determinative of the legal question at issue. Whether or not
there was an intention to give transfer of ownership involves a
factual inquiry, and must be determined with reference to all the
relevant facts of each case.
[6]
[85] A central feature of the present case is that the transfer of
the property took place under the auspices of a court order.
In
concluding the settlement agreement and incorporating it into the
divorce order, the Njisanes bound themselves to the authority
of that
order. In the absence of a court-sanctioned amendment of the
divorce order, the Njisane’s had no authority
to revoke the
liquidator’s appointment. Similarly, in the absence of
appropriate relief from a court, they had no authority
to override
the liquidator’s transfer of the property.
[86] The Njisanes did not succeed in obtaining the relief they sought
from the court prior to the registration of the transfer.
Thus,
at the time of registration, the liquidator had the necessary legal
capacity under the divorce order and settlement agreement
to dispose
of the property by effecting the registration of transfer.
[87] Whatever was the subjective state of mind of the Njisanes at the
time of transfer, this is not determinative of the issue.
The
existence of an effective real agreement in this case depended on the
intention of the liquidator, acting under the authority
of the
divorce order and settlement agreement, to give transfer of the
property to the Rampedis. That the liquidator had
the requisite
intention at the time of transfer is not in doubt.
[88] Counsel for the Njisanes attempted to persuade me at the hearing
that the doctrine of
res litigiosa
prevented the liquidator
from proceeding with the transfer of the property once the urgent
application was filed. His submission
was that although the
urgent application was dismissed prior to transfer, Part B of the
application stood over. He submitted
that the validity of the
transfer of ownership to the Rampedi’s was expressly contested
in Part B and that this pending issue
prevented the liquidator from
effecting transfer in the interim.
[89] Counsel’s submissions are based on a flawed understanding
of the application of the doctrine of
res litigiosa
. The
doctrine applies in circumstances where contested property (
res
litigiosa
) is the subject matter of successive sales. The
doctrine provides that where a second sale of the property occurs (to
a second
purchaser) pending the determination of the dispute over the
property, the rights of the first purchaser will be enforceable as
against the second purchaser.
[7]
However, the fact that property may be
res litigiosa
is not a
bar to the transfer of the property to the second purchaser. It
simple means that the first purchaser may proceed
later to give
effect to his rights in the contested property.
[8]
[90] The doctrine of
res litigiosa
has no application in the
present case, which is not concerned with successive sales. The
simple question is whether transfer
was validly effected to the
Rampedis. This question must be determined on the basis of
whether the liquidator had the necessary
capacity and intention to
transfer ownership at the time of registration. There is simply
no need for the application of
the doctrine of
res litigiosa
in determining these issues.
[91] For all of the above reasons, I find that the conduct of the
Njisanes in launching the urgent application did not give rise
to any
defect in the real agreement underpinning the transfer of the
property to the Rampedis. The liquidator had the necessary
capacity and intention to transfer ownership at the time of
registration notwithstanding the Njisane’s attempts to thwart
the transfer.
[92] Consequently, all three legs of the Njisane’s
counter-application fail.
[93] This renders it unnecessary to consider the Rampedi’s
conditional counter-application.
[94] The final question to be considered is whether the Rampedis are
entitled to an eviction order.
THE EVICTION APPLICATION
[95] My dismissal of the counter-application has the effect of
confirming the Rampedi’s ownership of the property.
It
has the further effect that the Njisane’s occupation of the
property is unlawful. In these circumstances, I may
grant an
order of eviction it I find that it is just and equitable to do so,
taking into account all relevant circumstances. I
must also be
satisfied that the necessary procedural requirements for an order of
eviction have been satisfied.
[9]
[96] The Njisanes raise one technical defence to the eviction
application. They do not dispute that the Rampedis obtained
the
necessary Notice under section 4(2) of PIE, and that this was duly
served on the municipality. It is common cause that
the initial
hearing date for the matter was postponed. What the Njisanes
submit is that section 4(2) requires that a new
Notice should have
been served on the municipality after the postponement. For
this reason, they say that the PIE process
was defective and that the
Rampedis should be deprived of the relief they seek until they cure
the defect.
[97] Counsel for the Njisanes was unable to cite any authority for
his submission. This does not surprise me. To interpret
section 4(2) in the manner suggested would be to place form above
substance for no good reason. The municipality received
Notice
under section 4(2) indicating the original date of the hearing.
It took no steps to indicate an intention to become
involved in the
eviction proceedings. One can only presume that the nature of
the present dispute is not such that the municipality
envisages that
it will have any role to play in the matter going forward. This
is a reasonable inference to draw, given that
there is no indication
from the papers that the Njisanes will not be able to make
arrangements for their own accommodation.
To require further
service on the municipality in these circumstances would serve no
purpose, save to delay what, in all respects,
is a lawful and
justifiable eviction.
[98] I find that there is no merit in counsel’s submissions in
this regard.
[99] In my view, it is just and equitable to order an eviction in the
present case. The Njisanes have been well aware, since
at least
March 2013 that the property was sold to the Rampedis. Mr
Njisane has been aware since February 2013 that he will
need to
vacate the property. This is reflected in the correspondence
between Klingenberg and the liquidator. Although
Mrs Njisane
has stated that she told the liquidator in early 2013 that she wanted
to purchase the property, she took no steps to
give effect to this,
or to protect her position. Despite threatening legal action,
she did nothing until the eve of transfer
in December 2013, to give
effect to these threats. Mrs Njisane must have appreciated that
her continued occupation of the
property was precarious, and that she
may need to consider alternative accommodation arrangements.
[100] More than eighteen months have elapsed since the property was
transferred to the Rampedis. In all of that time the
Njisanes
have continued to live in the property without any recompense to the
Rampedis. The Rampedis have incurred substantial
expenses,
including monthly bond repayments, over this period. The
Njisanes, on the other hand, have been released from their
bond
obligations as a result of the transfer of the property to the
Rampedis. In these circumstances, any further delay in
permitting the Rampedis full use and enjoyment of their property
would be unjustified.
[101] The Njisanes will have the balance of the purchase price at
their disposal to put towards finding alternative accommodation
for
themselves. From figures included in the Rampedi’s affidavits,
it appears that this will be in the region of over R600
000. 00. To
this must be added the interest that has accrued on this amount since
the date of transfer. In addition, the
settlement agreement
places an obligation on Mr Njisane to pay maintenance towards the
monthly needs of Mrs Njisane and their dependents
(who are both
adults). From these facts, I am satisfied that neither Mr nor
Mrs Njisane will be rendered homeless by an order
of eviction.
[102] I accordingly find that the Rampedis are entitled to an order
of eviction in the event that they do not vacate the property
within
a period of 30 calender days.
[103] I make the following order:
1.
The First and Second Respondents’ counter-application is
dismissed.
2.
The First and Second Respondents, and all persons occupying through
or under them, are directed to vacate the immovable property
situated
at 3... V........ Street, R......., Roodepoort, held the under Title
Deed T47357/2013 (“the property”) within
30 calender days
of the date of this order.
3.
In the event that First and/or Second Respondents, and/or all persons
occupying through or under them fail to vacate the property
as
directed in paragraph 1, they may be evicted from the property
forthwith.
4.
First and Second Respondents are directed jointly and severally to
pay the costs of the First and Second Applicants, and the
First
Interested Party in the eviction application, the counter-application
and the Applicants’ conditional counter-application.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 5 June 2015
Date of Judgment: 03
August 2015
Counsel for the
Applicants: M A Kruger
Instructed by: Jan
Roussouw Attorneys
Counsel for Respondent: C
van der Merwe
Instructed by: Mketsu &
Associates Inc
[1]
19 of 1998
[2]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at [18]
[3]
Legator McKenna Inc and Another v Shea and Others
2010 (1)
SA 35
(SCA) at [21]
[4]
Legator McKenna Inc
, above, [22]
[5]
Act 68 of 1981, section 2(1)
[6]
Badenhors
et al
Silberberg and Schoeman’s: The Law
of Property
(5ed) p74
[7]
Kootbodien v Mitchell’s Plain Electrical Plumbing &
Building
2011 (4) SA 624
(WCC), [62]
[8]
Kootbodien
, above, [88]
[9]
Section 4 of PIE