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[2020] ZAGPJHC 374
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Mkoko v Sibeko and Another (8398/2020) [2020] ZAGPJHC 374 (7 December 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
8398/2020
DATE
:
7
th
December 2020
In
the matter between:
MKOKO
,
JOSEPHINA NONTOMBI
Applicant
and
JOJA
(previously
SIBEKO
),
LINDIWE ESTHER
First
Respondent
REGISTRAR
OF DEEDS, JOHANNESBURG
Second Respondent
Coram:
Adams J
Heard
:
17 November 2020 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
7 December 2020 – This judgment
was handed down electronically by circulation to the parties'
representatives by email, by
being uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 11h0 on 7 December 2020.
Summary:
Opposed application – final mandatory interdictory
relief – factual dispute to be decided on the basis of the
Plascon-Evans
rule –
first
respondent’s version cannot and should not be rejected on the
papers – applicant’s application refused –
ORDER
(1)
The applicant’s application against the first respondent is
dismissed.
(2)
There shall be no order as to costs.
JUDGMENT
Adams J:
[1].
This is an opposed application by the
applicant for vindicatory relief in relation to her alleged undivided
half share in immovable
property in Tshongweni Township in Katlehong
(‘the property’). An unpleasant family feud between two
sisters –
the applicant and the first respondent – lies
at the heart of the application. Over twenty years ago during 1999
the property
was registered in the name of the first respondent. Her
sister, the applicant, alleges – rather belatedly and some
twenty
years after the fact – that the transfer of the property
into the name of the first respondent was done unlawfully. The
registration
of the transfer, so the applicant claims, was a fraud
perpetrated on her and to her detriment by her sister, the first
respondent.
[2].
The applicant therefore applies for the
vindication of her undivided half share in the property. In her
notice of motion the applicant
requests that the title deed under
which the property is held by the first respondent be cancelled and
also for an order directing
the Registrar of Deeds to re-register the
property into both the names of the applicant and the first
respondent.
[3].
The application is based on the
provisions of section 6 of the Deeds Registries Act, Act 47 of 1937
(‘the Act’) for
the cancellation of Deed of Transfer
number T67070/99 in favour of the first respondent in respect of Erf
1938 Tshongweni Township
(‘the property’). In terms of
the said Deed of Transfer, the transfer of the property, which was
directly from the
Gauteng Provincial Government to the first
respondent, was registered on the 15
th
of November 1999.
[4].
Section 6 of the Act provides as
follows:
‘
6
Registered deeds not to be cancelled except upon an order of court
–
(1)
Save as is otherwise provided in this Act or in any other law no
registered deed of grant, deed of transfer,
certificate of title or
other deed conferring or conveying title to land, or any real right
in land other than a mortgage bond,
and no cession of any registered
bond not made as security, shall be cancelled by a registrar except
upon an order of Court.
(2)
Upon the cancellation of any deed conferring or conveying title to
land or any real right in land other
than a mortgage bond as provided
for in subsection (1), the deed under which the land or such real
right in land was held immediately
prior to the registration of the
deed which is cancelled, shall be revived to the extent of such
cancellation, and the registrar
shall cancel the relevant endorsement
thereon evidencing the registration of the cancelled deed.’
[5].
The question to be decided in this
application is whether the transfer of the property into the name of
the first respondent was
valid and based on a lawful and sustainable
causa
.
That question should be decided against the backdrop of the relevant
facts, some of which are common cause and some of which are
disputed.
Those facts will be dealt with in the paragraphs which follow.
However, before traversing the relevant factual background,
I
interpose to make two observations. Firstly, a feature of this case
which stands out like a sore thumb is the fact that important
developments herein happened over two decades ago without the
applicant seriously challenging or questioning those events.
Secondly,
the first respondent in these proceedings was unrepresented
and she represented herself and appeared before court in person at
the hearing of this application on the 17
th
of November 2020. She was nevertheless able to place before court
those facts which, as will be seen, carried the day.
[6].
As already indicated, the applicant and
the first respondent are sisters. They are the daughters of the late
Nana Johanna Sibeko
(‘the deceased’), who up and until
her death on the 3
rd
of January 1985 was ‘the owner’ of the property. I say
that the deceased was ‘the owner’ of the property,
although this is not strictly speaking factually correct – the
property was never registered in the name of the deceased.
The
deceased evidently was the holder of real rights in the property,
including her right and that of her family to occupy and
use the
property in terms of a long-term leasehold. A permit or a certificate
of occupation would have been issued in favour of
the deceased in
respect of the property by the government of the day, which, at the
time was the East Rand Administration Board.
[7].
After the death of the deceased, the
first respondent on the 26
th
of April 1985 at a family meeting held at the Alberton Magistrates
Court at which matters pertaining to the deceased estate was
discussed, received cession and assignment of all rights, title and
interest in and to the property from the family, presumably
referring
to the heirs in the estate. On the basis of this cession and
assignment the first respondent on the 10
th
of September 1985 was issued by the East Rand Administration Board
with a ‘Certificate of Occupancy’ in relation to
the
property. It is the case of the first respondent that all of the
aforegoing legal steps in the processes relating to the property
were
taken with the applicant’s knowledge and with her full consent.
The applicant, so the first respondent avers, was present
at the
‘family meeting’ on the 26
th
of April 1985 and she signed the cession / assignment as one of the
next of kin of the deceased. Similarly, on the 10
th
of September 1985, so the first respondent alleges, the applicant was
present at the offices of the East Rand Administration Board
and
co-signed, as a witness, the certificate of occupancy in favour of
the first respondent, thus giving her consent to the first
respondent
acquiring all the rights, title and interests in and to the property,
notably the right to occupy same with her family.
[8].
With the advent of democracy during 1994
also came improvements in the lives of ordinary South Africans,
including the acquisition
of real rights in immovable property
previously limited mainly to rights to occupy dwellings. The first
respondent took advantage
of the new developments. And on the
strength of the certificate of occupancy issued in her favour on the
10
th
of September 1985 the first respondent, having applied for a
conversion of her occupancy right to full ownership rights, took
transfer of the property. This transfer the applicant alleges was
done fraudulently and underhandedly at the instance of the first
respondent, as was the case with the preceding cession / assignment
on the 26
th
of April 1985 and the Certificate of Occupancy dated the 10
th
of September 1985. In sum, the case of the applicant in this
application amounts to a conspiracy of epic proportions implicating
not just the first respondent but also the Magistrates Court in
Alberton and the office of the East Rand Administration Board –
the documentation generated by the Alberton Magistrates Court, the
East Rand Administration Board and the Office of the Registrar
of
Deeds were all, according to the applicant, forgeries and fraudulent.
The applicant alleges that the first respondent had through
fraudulent means and by forging official documentation caused the
property to be transferred into her name out of the estate.
[9].
In her founding affidavit the applicant
makes out her case that their mother, the deceased, died intestate,
which meant that she
and the first respondent should have inherited
as the only surviving descendants of the deceased equal undivided
shares in the
property. She also states that at no point did she
cede, assign or donate her fifty percent ownership right in the
property to
the first respondent or to anyone else for that matter.
This is in direct contradiction to the version of the first
respondent
in her answering affidavit.
[10].
The applicant states that she is
entitled to one undivided half share of the property. The first
respondent by stealth had taken
transfer of the whole property and
withheld from her, so the applicant alleged, this fact. However, all
was to be revealed, according
to the applicant, when there was a
fall-out between them during 2011 when the first respondent demanded
payment in respect of arrear
rental and related charges from the
applicant’s daughter, who, at the time, was a tenant on the
property. It was then that
she discovered, so the applicant claims,
this enormous fraud which the first respondent had perpetrated on
her.
[11].
On the other hand, the first respondent
claims that her actions were all regular and above board. She denies
in the strongest possible
terms that the official documentation from
the Magistrates Court and from the office of the
East
Rand Administration Board
is a
forgery. She remains adamant that the applicant, as one of the next
of kin of the deceased present at the family meeting before
the
Alberton Magistrate on the 26
th
of April 1985, consented to and approved her acquisition from the
deceased estate of the right, title and interest in and to the
property.
[12].
In substantiation of her case, the first
respondent alleges that at the time of her death their mother ‘owned’
two properties
in the Katlehong area – those were (1) the
property which is the subject of the litigation
in
casu,
and (2) the property presently
and since 1985 occupied by the applicant. The agreement between the
two sisters, as per their mother’s
wishes, was to the effect
that the division of the deceased estate would be on the basis that
each one of them would acquire ownership
of one of the properties
previously owned by their mother. This agreement was embodied in the
cession at the family meeting on
the 26
th
of April 1985 and the certificate of occupancy dated the 10
th
of September 1985.
[13].
The applicant denies this version and
alleges that she acquired her own property on her own and not from
her mother. What is however
peculiarly odd is the fact that the
certificate of occupancy or the ‘Site Permit’, as it was
called, in favour of the
applicant in respect of her property was
issued on the 13
th
of September 1985, whereas the ‘Certificate of Occupancy’
in favour of the first respondent was issued on the 10
th
of September 1985. This fact, in my view, lends substantial credence
to the first respondent’s story. It is not difficult
to
envision that these two certificates issued within days of each other
were part and parcel of an arrangement in terms of which
each of the
two sisters would take one of the two properties given to them by
their mother.
[14].
In this matter, there is clearly a
factual dispute between the parties which goes to the heart of the
matter. The dispute in a nutshell
is whether the events culminating
in the transfer of the property into the name of the first respondent
happened pursuant to an
agreement between the parties with its
foundation as their mother’s last wish.
[15].
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 e g
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).
[16].
So, I reiterate that it is clear that
the main dispute between the parties is a factual one. The question
is this: Which one of
the two versions is to be accepted? In deciding
that question, it should be borne in mind that this is an application
and factual
disputes are to be decided on the basis of the principles
enunciated in
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Limited
,
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[17].
The general rule is that a court will
only accept those facts alleged by the applicant which accord with
the respondent's version
of events. The exceptions to this general
rule are that the court may accept the applicant’s version of
the facts where the
respondent's denial of the applicant's factual
allegations does not raise a real, genuine, or
bona
fide
dispute of fact. Secondly, the
court will base its order on the facts alleged by the applicant when
the respondent's version is
so far-fetched or untenable as to be
rejected on the papers.
[18].
In
Room
Hire Co (Pty) Limited v Jeppe Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T0, it was held that:
‘
A
bare denial of applicant's material averments cannot be regarded as
sufficient to defeat applicant's right to secure relief by
motion
proceedings in appropriate cases. Enough must be stated by respondent
to enable the Court to conduct a preliminary investigation
... and to
ascertain whether the denials are not fictitious and intended merely
to delay the hearing.'
[19].
It is necessary to adopt a robust,
common-sense approach to a dispute on motion. If not, the effective
functioning of the Court
can be hamstrung and circumvented by the
most simple and blatant stratagem. A Court should not hesitate to
decide an issue of fact
on affidavit merely because it may be
difficult to do so. Justice can be defeated or seriously impeded and
delayed by an over-fastidious
approach to a dispute raised in
affidavits.
[20].
The applicant submits that the version
of the respondent should be rejected on the papers.
[21].
If regard is had to the evidence before
me as a whole, it cannot be said that the version of the first
respondent is so far-fetched
that it can be rejected on the papers.
In fact, in my view, the first respondent’s story has a ring of
truth to it. I have
already alluded to the fact that it seems just
too much of a coincidence that the applicant and the first
respondents are issued
with certificates of occupancy of their
respective properties within days of each other. This common cause
fact, to my mind, is
a perfect fit for the first respondent’s
version – not so for the applicant’s denial of the
arrangement. Moreover,
I find it hard to believe that for a period in
excess of thirty years the applicant fails to raise the alarm on the
perpetration
of a massive fraud on her by none other than her very
own sister. The point is that, in the context of the aforegoing, the
first
respondent’s story may very well be true.
[22].
There is one other aspect which, in my
view, seems to favour the first respondent’s version. That
relates to the fact that
the property was transferred to the first
respondent in terms of the provisions of s 5 of the Conversion of
Certain Rights into
Leasehold of Ownership Act 81 of 1988. This
provision, as we know, involves the consultation with all interested
parties in a property.
Persons with an interest in the property would
have been invited by the Provincial Government of Gauteng to stake
their claim.
The rhetorical question to be asked is why, during this
process, the applicant did not alert the authorities to her supposed
claim
to one half undivided share in the property.
[23].
Howsoever I view this matter and if
regard is had to the evidence, I cannot reconcile myself with a
suggestion that the first respondent’s
version is far-fetched.
I am therefore not prepared to reject same on the papers, which means
that the applicant’s application
against the first respondent
stands to be dismissed.
Costs
[24].
The general rule in matters of costs is that the successful party
should be given her costs,
and this rule should not be departed from
except where there are good grounds for doing so.
[25].
In casu
, the first respondent was unrepresented throughout
these motion court proceedings. She would not have incurred legal
costs and
she is therefore not entitled to an award for costs.
[26].
I therefore intend awarding no order as to costs.
Order
Accordingly,
I make the following order:-
(1)
The applicant’s application against the first respondent is
dismissed.
(2)
There shall be no order as to costs.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON:
17
th
November 2020 – in a ‘virtual hearing’
during a videoconference on the
Microsoft Teams
digital
platform
JUDGMENT DATE:
7
th
December 2020 – judgment handed down
electronically
FOR THE APPLICANT:
Advocate R M Mthembu
Cell no
: (076) 742-2542
Email
:
rmthembu@gmail.com
INSTRUCTED BY:
S E Dube Attorneys Incorporated
Cell no
: (079) 542-9518
Email
:
info@dubeattorneys.co.za
FOR THE FIRST RESPONDENT:
In person
INSTRUCTED
BY:
In
person
FOR THE
SECOND RESPONDENT:
No
appearance
INSTRUCTED
BY:
No
appearance