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[2019] ZAGPJHC 243
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TM and Others v Mono and Others (25437/18) [2019] ZAGPJHC 243 (24 June 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: 25437/18
In
the matter between:
T
M
First
Applicant
B
Q
Second
Applicant
ESTATE
LATE: MAKGOSI MARIA
ALBERTINA
Third
Applicant
And
JOHN
MOKUTU
MONO
First
Respondent
MAPULA
SHEREEN
MONO
Second
Respondent
NOTHEMBA
GEORGE
ATTORNEYS
Third
Respondent
MASTER
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Fourth
Respondent
REGISTRAR
OF DEEDS,
JOHANNESBURG
Fifth
Respondent
JUDGMENT
BOKABA AJ
1.
In these proceedings the first and second
applicants state that they are the grandchildren of Maria Makgosi
Dube who died intestate
on 22 January 2005. They assert
that at the time of her death Makgosi Dube was survived by V M, who
became the executor
the estate of Makgosi Dube, and F Q, who is the
mother of the first and second applicants. The first and second
applicants
claim that the third applicant’s estate is the
subject–matter of this application.
2.
The order sought by the first and second
applicants is as follows:
“
1.1 That
the supposed certificate issued on 2 October 2015 in terms of
section 42(2) of the Administration f Estate Act
66 of 1965
(“the Act”) as amended by which the fourth respondent
allegedly endorsed a power of attorney dated 16 September
2016
signed by Mr, V M in his capacity as the executor of the estate of
the Late Maria Makgosi Albertina Dube authorising the transfer
of the
immovable property described as Erf […] Munsieville,
registration division I.Q, Gauten Province measuring 457 (four
five seven) square meters held under Deed of Transfer Number
TL43146/2015 (“the subject-property”) dated 16 October
2015 from the estate of the Late Maria Makgosi Albertina Dube to John
and Shereen Mono, the first and second respondents respectively
be
invalidated and/or set aside;
1.2 That the transfer of the
property by the Executor in the estate of the Late Maria Makgosi
Albertina Dube to the first and second
respondents under Deed of
Transfer Number TL43146/2015 be set aside;
1.3 That the subject property be
reverted to the estate of the Late Maria Makgosi Albertina Dube held
under Certificate of Registered
Grant of Leasehold TL58577/1992 for
the due administration by the remaining heirs and the Master in
accordance with the provisions
of the Act;
1.4 That the Fifth Respondent be
ordered and directed to cancel the Deed of Transfer Number
TL43146/2015 and transfer the subject
property into the estate of the
Late Maria Makgosi Albertina Dube estate number 1522/2005;
1.5 That the first and second
respondents who are the registered co-owners of the subject property
and are in possession of the
current Title Deed be ordered to
surrender the Deed of Transfer No. TL43146/2015 dated 10 October
2015 to the Applicants’
attorneys or the Fifth Respondent for
due cancellation;
1.6 In the event of the First and
Second Respondents not surrendering the said Deed of Transfer
TL43146/2015, the Fifth Respondent
be ordered and directed to cancel
the said deed and transfer the property as stipulated in the prayers
above;”
3.
The first applicant in particular, claims
that he is a beneficiary to the estate of the Late Maria Makgosi Dube
by virtue of, and
as evidenced by, a site permit issued at the
instance of Makgosi Dube and dated 21 August 1989. The
site permit indicates
that the first respondent is the dependent of
Makgosi Dube and is permitted to reside with her at site number […]
Munsieville.
The first applicant states that the second
applicant is his brother and is also a beneficiary of the estate of
the Late Maria Makgosi
Dube.
4.
The first and second applicants state that
at the time of the death of Ms Makgosi Dube on 22 January
2005 they were residing
at the property with their mother, F Q, and
together with their two minor siblings, namely, L Q and B Q. It
is common cause
that the first and second applicants were evicted
from the property by the first and second respondents in February
2018.
It is also common cause that on 27 January 2005 and
following the death of Ms Makgosi Dube, Mr V M, who was one of
the
two surviving children of the late Makgosi Dube, was issued with
letters of executorship by the Master of the High Court,
Johannesburg.
On 15 May 2015 Mr M entered into a written
sale agreement with the first and second respondents for the purchase
of
the property.
5.
On or about 16 September 2015 and
following the sale transaction, the third respondent was appointed as
transferring attorneys
for the property from the estate of the Late
Makgosi Dube into the names of the first and second respondents.
On or about
16 October 2015 the property was registered into the
names of the first and second respondents.
6.
Evidence on the record indicates that V M
died on 13 February 2018 and F Q, the applicant’s mother,
died on 5 May
2013.
BASIS ON WHICH THE APPLICANTS
SEEK RELIEF
7.
The primary basis on which the first and
second applicants seek relief is that Mr V M, who acted as the
executor of the estate of
the Late Makgosi Dube, and concluded the
sale of the property, lacked authority to do so. The first and
second applicants
claim in this regard that the fifth respondent was
improperly and unlawfully induced to facilitate the transfer of the
property
by the fraudulent actions of Mr V M and the third
respondent.
8.
The first and second applicants have
attached various documents to their papers in an attempt to prove
that V M lacked authority
to act as the executor of the estate of the
Late Makgosi Dube. One such document is what appears to be an
affidavit deposed
to by one Mphanama Mphatheleni who states that she
is the assistant master of the South Gauteng High Court. The
affidavit
states as follows –
“
The
endorsement of the section 42(2), power of the transfer to
attorney endorsed on the 02 October 2015 under the estate Late
Makgosi Maria Albertina Dube, Master reference number: 1522/2005 was
fraudulently made and as such the transaction is illegal and
the date
stamp appended in the power of attorney has been concealed as every
date has a unique number.”
9.
Attached to the applicants’ papers is
also an undated letter ostensibly issued by Master of the High Court
which calls upon
V M to attend to the office of the Master urgently
with the letter of authority dated 27 January 2005. The
applicants
have also attached to their papers, the judgement and
order issued by the Magistrate’s Court for the district of
Mogale City
and dated 19 September 2017 evicting the first and
second applicants from the property. I shall return later to
this
judgement and order.
10.
The first and second respondents contend
that the relief sought by the first and second applicants is
incompetent on a number of
grounds. In this regard the first
and second respondents have also raised a number of points in
limine. First, they
assert that the third applicant can only be
represented by an executor and therefore it is not possible for the
third applicant
to issue process by itself as it does not exist.
They also assert that the first and second applicants have no locus
standi
to bring this application before this Court.
11.
Second, the first and second respondents
assert that the relief sought by the applicants is incompetent as
they should have sought
a relief to grant an order confirming that V
M was not the executor of the estate or was not duly authorised to
act on behalf of
the estate of the Late Makgosi Dube. Third,
they claim that the executor of the estate of the Late F Q should
have instituted
a claim in the event that her estate was to inherit
from the estate of the Late Makgosi Dube.
12.
Regarding the Deed of Sale in terms of
which the property was subsequently transferred to them, the first
and second respondents
contend that the transfer was duly signed by a
duly appointed executor of the estate of the Late Makgosi Dube and
that all the
relevant certificates in terms of the provisions of
section 42(2) of the Administration of Deceased Estates Act 66
of 1965
were duly complied with and presented to the satisfaction of
the Registrar of Deed, the fifth respondent. I should mention
that only the first and second respondents are opposing the relief
sought by the applicants in these proceedings.
LITIGATION HISTORY BETWEEN THE
PARTIES
13.
It is common cause that on or about 15 May
2015 the first and second respondents entered into a written sale
agreement with
Mr V M, who was the executor of the estate of Makgosi
Dube, in respect of the property. The third respondent acted as
the
transferring attorneys of the property. The property was
registered into the names of the first and second respondents on
or
about 16 October 2015. It is also common cause that during
September 2017 the first and second respondents brought
an
application seeking the ejectment of the first and second applicants
from the property. These proceedings were brought
before the
Magistrate’s Court for the district of Mogale City. The
basis on which the ejectment was sought was that
the first and second
respondents were the owners of the property and that the first and
second applicants were in occupation of
the property.
14.
In terms of the judgement of the
Magistrate’s Court dated 19 September 2017 and which has
been annexed by the first and
second applicants to the papers, the
following is apparent;
14.1.
The first and second respondents contended
that they had purchased the property from the estate of the Late
Makgosi Dube;
14.2.
The first and respondent applicants
contended that they were heirs of the Estate of the Late Makgosi Dube
and stood to inherit the
property or portion thereof;
14.3.
The first and second applicants contended
that the matter should be referred to the Master’s office for
investigation and
that they sought to remain on the property until
the dispute has been resolved; and
14.4.
That the first and second respondents had
failed to prove that the first and second applicants were in unlawful
occupation of the
property.
15.
What is clear from the judgement is that in
those eviction proceedings, the first and second applicants had
challenged the validity
of the sale of the property on the basis that
the Master’s office, had to their knowledge, not appointed an
executor of the
estate of Makgosi Dube and contended further that the
sale of the property to the first and second respondents was
unlawful.
16.
The Court found that there was a valid deed
of transfer in the names of the first and second respondents.
The Court found
further that the first and second applicants were
aware of the sale of the property to the first and second respondents
and had
done nothing to approach the Court challenging the sale or to
stop the transfer of the property to the first and second
respondents.
Accordingly, the Court ordered the first and
second respondents to vacate the property by 27 November 2017.
The doctrine of res judicata
17.
In my view, the first and second applicants
have brought the current application to deal with the same issues
that were dealt with
by the Magistrate’s Court in the eviction
proceedings. Those eviction proceedings remain unchallenged.
In those
proceedings the issue of the ownership, transfer of the
property and the alleged illegality of the transfer were fully dealt
with
and a final determination and an order was made by the Court.
18.
The doctrine of
res
judicata
prohibits the reconsideration
of a case that has already been finally determined by a court.
The doctrine is based on the
following –
“
The rule
of law and legal certainty will be compromised if the finality of a
court order is in doubt and can be revisited in a substantive
way.
The administration of justice will also be adversely affected if the
parties are free to continuously approach courts
on multiple
occasions in the matter.”
[1]
19.
The doctrine of
res
judicata
deals with a situation where
the same parties are in dispute over the same cause of action and/or
the same relief. The current
state of the law in respect of
res
judicata
has been expressed as
follows –
“
[22] As
mentioned earlier the plea of res judicata in this case takes the
attenuated form commonly referred to as issue estoppel.
Res
judicata deals with the situation where the same parties are in
dispute over the same cause of action and the same relief,
and in the
form of issue estoppel arises:
‘
Where the
decision set up as a res judicata necessarily involves a judicial
determination of some question of law or issue of fact,
in the sense
that the decision could not have been legitimately or rationally
pronounced by the tribunal without at the same time,
and in the same
breath, so to speak, determining that question or issue in a
particular way, such determination, though not declared
on the face
of the recorded decision, is deemed to constitute an integral part of
it as effectively as if it had been made so in
express terms …’
[23] Although initially
controversial that decision has subsequently been endorsed by this
court as falling within the realm of
res judicata. The current
state of the law was summarised by Scott JA in the following passage:
‘
Following
the decision in Boshoff v Union Government
1932 TPD 345
the ambit of
the exceptio res judicata has over the years been extended by the
relaxation in appropriate cases of the common-law
requirements that
the relief claimed and the cause of action be the same (eadem res and
eadem petendi causa) in both the case in
question and the earlier
judgment. Where the circumstances justify the relaxation of
these requirements those that remain
are that the parties must be the
same (idem actor) and that the same issue (eadem quastio) must arise.
Broadly stated, the
latter involves an enquiry whether an issue
of fact or law was an essential element of the judgment on which
reliance is placed.
Where the plea of res judicata is raised in
the absence of a commonality of cause of action and relief claimed it
has become
commonplace to adopt the terminology of English law and to
speak of issue estoppel. But, as was stressed by Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995
(1) SA 653
(A) at 669D, 670J-671B, this is not to be construed as
implying an abandonment of the principles of the common law in favour
of
those of English law; the defence remains one of res judicata.
The recognition of the defence in such cases will however
require careful scrutiny. Each case will depend on its own
facts and any extension of the defence will be on a case-by-case
basis … Relevant considerations will include questions
of equity and fairness not only to the parties themselves but
also to
others. As pointed out by De Villiers CJ as long ago as 1893 in
Bertram v Wood
(1893) 10 SC 177
at 180, “unless carefully
circumscribed, [the defence of res judicata] is capable of producing
great hardship and even positive
injustice to individuals”.’”
[2]
20.
It is clear from the judgement of the
Magistrate’s Court in the eviction proceedings that what arose
before Court was the
validity of the sale of the property and the
basis on which the Master’s office had appointed Mr V M as
the executor
of the estate of Makgosi Dube. On both of the
issues the Magistrate’s Court found that there was a valid deed
of transfer
of the property into the names of the first and second
respondents and that the first and second applicants were aware of
and had
done nothing to approach the court to challenge it.
21.
In these proceedings the primary basis on
which the first and second applicants seek relief is that there was
an improper and unlawful
transfer of the property to the first and
second respondents. In particular, the first and second
applicants claim that the
fifth respondent was improperly and
unlawfully induced to facilitate a transfer of the property by the
fraudulent actions of Mr V
M, the executor of the estate of the
Late Makgosi Dube, and the third respondent. The issue of the
lawfulness of the transfer
of the property is pertinently dealt with
in the Magistrate’s Court judgement. A finding of
unlawfulness of the transfer
by this Court will contradict that
eviction judgement in circumstances where this Court is not sitting
as a court of appeal.
Any such finding will be in conflict with
the principle of
res judicata.
22.
In
conclusion, I find that the relief sought by the first and second
applicants in these proceedings will involve a reconsideration
of the
very issue that was before the Magistrate’s Court in eviction
proceedings. Naturally, the relief sought by the
first and
second applicants appears, on the face of it, to be somehow different
from the relief sought by the first and second
respondents in the
eviction proceedings. The issues, however, remain the same.
This will in any event be covered by
the elements of
res
judicata
in the form of issue estoppel.
[3]
The factual allegations around the validity of the transfer of the
property by V M to the first and second respondents formed
the crux
of the first and second applicants’ defence in the eviction
proceedings. So was the issue of the executorship.
These
issues were finally determined by the Magistrate’s Court.
23.
I do not deem it necessary to go into the
some of the defences raised by the first and second respondents given
the conclusion that
I have reached on the application of the doctrine
of
res judicata.
Accordingly
the application must be dismissed with costs.
24.
I make the following order:
24.1.
The application is dismissed with costs.
_________________________
TJB BOKABA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES:
FOR APPLICANTS:
MS N NDLOVU
INSTRUCTED
BY:
PHUNGO INCORPORATED
FOR RESPONDENTS:
MR GOVENDER
INSTRUCTED BY:
SMITH VAN DER WALT INC.
[1]
Thwala
v S
2019 (1) BCLR 156
(CC), at paras 10 and 16.
[2]
Aon
South Africa (Pty) Ltd v Van den Heever NO and Others
2018
(6) SA 38
(SCA), at paras 22 and 23.
[3]
Aon
South Africa (Pty) Ltd v Van den Heever NO and Others
(supra).