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[2021] ZAGPJHC 865
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A.A.V NO v Y.V (39813/2019) [2021] ZAGPJHC 865 (1 July 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 39813/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
NO
01
JULY 2021
In
the matter between:
A[....]
A[....] V[....] N.
O
Applicant
and
Y[....]
V[....]
Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 01 July 2021
SENYATSI
J:
[1]
On 1 March 2021, I dismissed
with costs an application for cancellation of the Notarial
Deed of
Usus
No: 18/06456 over the property situated at [....] E[....]
Close, Eco Park, Highveld. The reasons for the dismissal of the
application
are as set out below.
[2]
The applicant and respondent are divorced. As part of their divorce
settlement, the
applicant provided accommodation to the minor
children born of the parties, as well as to the respondent and
consequently, a notarial
deed of
usus
property as described in
paragraph [1] above was registered to give effect to accommodation.
[3]
The use of the property by the respondent and the minor children was
subject to terms
and conditions contained in the notarial deed of
usus.
The usage of the property would lapse once the
respondent concludes marriage to a third party other than the
applicant. The property
was to be exclusively used by the minor
children and the respondent. The respondent consented to the
cancellation of the right
of usage of the property and undertook to
sign all required documentation within 7 (seven) days of written
demand by the Trust
or its appointed conveyancers.
[4]
The applicant averred that the respondent was in breach of the terms
of the notarial
deed of
usus
in that the property is not used
for the exclusive benefit of the respondent and the minor children
born of the marriage. Furthermore,
so averred the applicant, the
respondent breached the terms of the notarial deed of
usus
by
allowing her mother to move in and reside in the property. She also
allowed, so continued the applicant, an unknown Indian male
to reside
on the property.
[5]
The respondent raised grounds of opposition to the application,
namely:
(a) There was no proper
service of the application;
(b) The court lacks
jurisdiction;
(c) Non-joinder of the
respondent’s mother and the registrar of deeds and;
(d) The respondent
requires assistance from her- mother and therefore she has not
breached the terms of notarial deed of
usus.
[6]
These defences will be dealt with each in reference to the legal
principles applicable
on each of them to make a determination on
whether each of them is sustained by the facts and evidence adduced
on the papers. It
has to be stated that although the defences were
raised in the opposing affidavit of the respondent, the heads of
argument filed
on behalf of the respondent focused on only two points
in limine
, namely, that this court lacks jurisdiction on the
matter and the non-joinder of the registrar of deeds and the
respondent’s
mother to the proceedings. The other points were
not canvassed further. For the purpose of this judgment, I will take
it that the
other points on lack of proper service of the application
and the averment that the respondent sought the assistance of her
mother
to assist her with taking care of the minor children have been
abandoned.
[7]
The jurisdiction of the court to adjudicate on a matter is regulated
by
section 21(1)
of the
Superior Courts Act 10 of 2013
which provides
as follows:
“
A Division has
jurisdiction over all persons residing or being in and in relation to
all causes arising and all offences triable
within, its area of
jurisdiction and all other matters of which it may according to law
take cognisance, and has the power-
(a) to hear and
determine appeals from all Magistrates’ Court within its area
of jurisdiction;
(b) to review the
proceedings of all such courts;
(c) in its discretion,
and at the instance of any interested person, to enquire into and
determine any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon the determination.”
[8]
Section 6
(3) (a) of the Superior Courts provides as follows:
"The Minister
must, after consultation with the Judicial Service Commission, by
notice in the Gazette, determine the area under
the jurisdiction of a
Division, and may, in the same manner, amend or withdraw such a
notice."
The
respondents counsel submitted that the South Gauteng High Court has
jurisdiction over magisterial districts of Alberton, Benoni,
Boksburg, Brakpan, Delmas, Germiston, Johannesburg, Kempton Park,
Krugersdorp, Nigel, Randburg, Randfontein, Roodepoort, Springs,
Vanderbijlpark, Vereeniging and Westonoria. Counsel for the
respondent furthermore, contends that the North Gauteng High Court
has jurisdiction over magisterial districts of inter alia, Tshwane
North, Tshwane East, and Tshwane North. The argument, submitted
on
behalf of the respondent further states that since both parties are
resident and domiciled in Centurion, the property forming
the subject
to the disputed violation of the registered
usus
is in
Centurion and that the settlement agreement was made an order of the
Court in the High Court of South Africa, Gauteng Division,
Pretoria
and that the deed of
usus
was registered in the Pretoria Deeds
Office that this Court lacks jurisdiction. I do not agree with this
submission.
[9]
The Minister of Justice and Correctional Services has, by notice
given in terms of
Government Gazette No.39001 dated 15 January 2016,
determined that the Gauteng Local Division of the High Court in
Johannesburg
has concurrent jurisdiction with the main seat in
Pretoria. It follows therefore that the defence on this point must
fail.
[10]
I now deal with the non-joinder point in limine that the Tshwane East
and Tshwane North. The
argument submitted on behalf of the respondent
further states that since both parties are resident and domiciled in
Centurion,
the property forming the subject to the disputed violation
of the registered
usus
is in Centurion and that the settlement
agreement was made an order of the Court in the High Court of South
Africa, Gauteng Division,
Pretoria and that the deed of
usus
was registered in the Pretoria Deeds Office that this court lacks
jurisdiction. I disagree with this contention for the reason
already
stated.
[11]
I now deal with the non-joinder point
in limine
that the
applicant has failed to join the Registrar of Deeds. In her opposing
papers and heads of argument, the Registrar is incorrectly
referred
to as the Master of Deeds instead of the Registrar of Deeds.
[12]
The
Deeds Registries Act 47 of 1937
regulates laws in the Republic
relating to the registration of deeds.
Section 3
of the same Act
spells out the duties of the registrar in various provinces which,
inter alia
, includes registration of notarial deeds such as
usus
which the registrar is required to keep a record thereof.
[13]
The test for non-joinder has been set out by courts. In
Absa
Bank Ltd v Naude NO
[1]
the court held that:
“
It has now
become settled law that the joinder of a party is only required as a
matter of necessity- as opposed to a matter of convenience-
if that
party has a direct and substantial interest which may be affected
prejudicially by the judgment of court in the proceedings
concerned
(see e.g. Bowring NO v Vrededorp Properties CC,
2007 (5) SA 391
(SCA)
para 21).”
[14]
Section 97
(1) of the
Deeds Registries Act of 1937
provides as
follows:
“
Before any
application is made to the court- for any authority or an order
involving the performance of any act in a deeds registry,
the
applicant shall give the registrar concerned at least seven days’
notice before the hearing of such application and such
registrar may
submit to the court such report to thereon as he may deem desirable
to make.”
I
have not seen any evidence of proof such notice to the registrar of
deeds in Pretoria. The applicant contends that is not necessary
to
join the registrar as the relief sought is not against the registrar
of deeds but against the respondent. This may be so, but
the
registrar still to be notified or joined in the proceedings.
[15]
It was submitted furthermore on behalf of the applicant that the
registrar will be ordered to
effect cancellation once the court has
made such an order. This submission ignores the provisions of
section
97
(1) of the
Deeds Registries Act which
are peremptory with regards
to the need to file notice regarding any proceedings in court in
terms of which the registrar is required
to perform any act in the
deeds. This action also includes the cancellation of
usus
notarialy executed.
[16]
I, therefore, hold the view that failure to notify or even join the
registrar of deeds is fatal
to the application.
ORDER
[17]
The following order is made:
(a)
The application is refused with costs.
__________________________
SENYATSI
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 01 March 2021
Date
of Judgment: 01 July 2021
Applicant
Counsel: Adv H Van Der Vyver
Instructed
by: Shaheed Dollie Incorporated
Respondent
Counsel: Adv E De Lange
Instructed
by: Muthray and Associates
[1]
(20264/2014)
[2015] ZASCA 97
(1 June 2019)