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[2016] ZAGPJHC 83
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Malisekele v Cheela and Others (2015/35630) [2016] ZAGPJHC 83 (4 May 2016)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/35630
DATE: 04 MAY 2016
In the matter between:
MALISEKELE, EVELYN
SINA
.............................................................................................
Applicant
And
CHEELA, MOTHUPI
DANIEL
.................................................................................
First
Respondent
THE MASTER OF THE HIGH COURT,
JOHANNESBURG
............................
Second
Respondent
THE REGISTRAR OF DEEDS,
JOHANNESBURG
.............................................
Third
Respondent
JUDGMENT
ADAMS AJ:
[1].
This
is an application in terms of
section 6
of the
Deeds Registries Act
No. 47 of 1937
for the cancellation of a Deed of Transfer in
favour of the first respondent in respect of Erf [1……]
[O….]
[E….] Township
(‘the
property’),
which was previously
registered in the name of the Manku Annah Mpele
(‘the
deceased’).
[2].
The
deceased estate of the deceased is the subject of the dispute between
the parties. The applicant alleges that the first respondent
had
through fraudulent means and by forging official documentation from
the office of the second respondent taken charge of the
assets in the
deceased estate after getting himself appointed as the Executor in
the said estate. Thereafter, so it is alleged
by the applicant, and
as a continuation of his fraudulent conduct he caused the property to
be transferred into his name out of
the estate.
[3].
On
the other hand, the first respondent claims that his actions were all
regular and above board. He denies that the official documentation
from the office of the second respondent is a forgery, and is adamant
that the Letter of Executorship in his favour was in fact
issued by
said office. During arguments before me, Mr Masake, who appeared on
behalf of the applicant, submitted that he had personally
made
enquiries with the office of the second respondent, who disavowed any
knowledge of the Letters of Executorship issued in favour
of the
first respondent. The said office did however confirm the existence
of the person who signed off the said document, and
it was also
confirmed that he is in fact employed by the Master of the High Court
in Johannesburg.
[4].
The
applicant also relies on an alleged Last Will & Testament of the
deceased dated the 15
th
March 1999. The first respondent denies the authenticity of the said
Will, and accuses the children of the applicant of forging
this
document with a view to defrauding him out of the property owned by
the deceased, whom the first respondent alleges was his
biological
mother with whom he resided at the property up and until the date of
her death on the 23
rd
June 2008. After her death and until recently the first respondent
continued living at the property, but due to threats of violence
and
actual violence allegedly perpetrated against his person by family
members of the applicant, he was forced to moved out of
the property
during or about January 2016.
[5].
The
most important bone of contention between the parties relates to the
fact that first respondent alleges, and quite forcefully
so, that he
is the son of the deceased. This is denied by the applicant, who
appears to be the sister of the deceased. The first
respondent was
staying at the property with his mother at the time of her death, and
remained in occupation until fairly recently
when he was forced to
leave the property under threat of being physically assaulted and
harmed.
[6].
In
this matter, there are clearly a number of factual disputes in
respect of material issues, which, in my view, are incapable of
being
resolved on the papers. It seems inconceivable that there could
possibly be such divergent versions of the aspects relevant
in this
matter. How is it possible that the persons of the same family can be
at logger heads relative to whether or not the first
respondent was
or was not the son of the deceased?
[7].
In
Plascon – Evans v Van Riebeeck
Paints,
1984 (3) 623 (AD), the
principles relative to the assessment of factual issues in motion
proceedings are set out as follows at pg
634:
‘
It seems to me, however, that this
formulation of the general rule, and particularly the second sentence
thereof, requires some
clarification and, perhaps, qualification. It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen
on the affidavits, a final order, whether it be an
interdict or some other form of relief, may be granted if those facts
averred
in the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
justify
such an order. The power of the Court to give such final
relief on the papers before it is, however, not confined to such a
situation.
In certain instances the denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona fide
dispute
of fact (see in this regard
Room Hire
Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T) at 1163 - 5;
Da
Mata v Otto NO
,
1972 (3) SA 858
(A)
at 882D - H).
If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under Rule 6
(5) (g) of the Uniform Rules of Court (cf
Petersen
v Cuthbert & Co Ltd,
1945 AD 420
at
428; Room Hire case supra at 1164) and the Court is satisfied as to
the inherent credibility of the applicant's factual averment,
it may
proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant
is
entitled to the final relief which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
,
1983 (4) SA 278
(W) at 283E - H). Moreover, there may be exceptions
to this general rule, as, for example, where the allegations or
denials of
the respondent are so far-fetched or clearly untenable
that the Court is justified in rejecting them merely on the papers
(see
the remarks of BOTHA AJA in the
Associated
South African Bakeries case
, supra at
924A)
.
[8].
Applying
these principles to this matter, I am of the view that the
application should to fail. The applicant should have foreseen
the
factual disputes and ought not to have proceeded by way of motion
proceedings.
[9].
To
complicate matters further, on the day of the hearing of the
application on the 28
th
April 2016 I was advised by Counsel for the third respondent that the
property was recently registered into the name of a third
party, same
having been sold on to the said third party by the first respondent.
This obviously meant that the relief claimed by
the applicant cannot
be granted as the new registered owner, who has an interest in the
subject matter of the litigation, should
be a party to these
proceedings.
[10].
For
all of these reasons the application stands to be dismissed.
[11].
Counsel
for the third respondent has submitted that, in view of the fact that
the applicant has insisted on costs against third
respondent, it was
necessary for her to appear to ensure that no such cost order is
granted.
[12].
Whilst
cost should, as a general rule, follow the suit, I am of the view
that circumstances of this matter are exceptional, and
it would be
unjust to burden the applicant with a costs order. By the same token,
the first respondent seems convinced of his version
and confident
that his account of the circumstances surrounding this matter is
likely to prevail. The third respondent is a public
body whose
statutory duties entailed
inter alia
the registration of ownership of immovable property. This is a public
function and the applicant was well within her rights to
join the
said respondent as a party to these proceedings.
[13].
Accordingly,
I do not intend making any order as to costs.
order
Accordingly, I make the following order:
The application is dismissed.
L ADAMS
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON: 28th April 2016
JUDGMENT DATE: 4th May 2016
FOR THE APPLICANT: Mr Masake
INSTRUCTED BY: Masake Incorporated
FOR THE FIRST RESPONDENT: In Person
INSTRUCTED BY: In person
FOR THE THIRD RESPONDENT: Adv J Maisela
INSTRUCTED BY: The State Attorney