Brief Summary

Application for leave to appeal — Appeal against dismissal of interdictory relief and damages claim — Applicant sought to declare ownership of property and interdict transfer by executor — Court dismissed application, citing section 2(1) of the Alienation of Land Act — Applicant's appeal focused on unjust enrichment claim for R120,810 — Court found reasonable prospects of success on the unjust enrichment claim, granting leave to appeal on that limited issue while upholding the remainder of the judgment.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal heard in the High Court of South Africa, Gauteng Division, Johannesburg, before Adams J, delivered on 7 June 2022 in Huma v Kruger and Others (39164/2020) [2022] ZAGPJHC 400 (7 June 2022).

The applicant was Boitumelo Huma. The first respondent was Stephan N O Kruger, cited in his official capacity as the executor of the deceased estate of Audrey Huma (the applicant’s deceased ex-wife). The second respondent was SA Home Loans (Pty) Limited, the third respondent was the Registrar of Deeds, Johannesburg, and the fourth respondent was the Master of the High Court, Johannesburg. The second to fourth respondents did not appear at the hearing of the leave application.

The leave application followed an earlier opposed application in which, on 16 February 2022, the court had dismissed the applicant’s substantive claims for (i) relief connected to the ownership and transfer of immovable property situated in Zakariyya Park and (ii) in the alternative, damages. In that earlier order the applicant had also been directed to sign documentation necessary to enable transfer of the property into the name of the executor, and he had been ordered to pay the costs of the opposed application.

The general subject matter of the dispute arose from the applicant’s contention that he had become entitled to the property pursuant to an alleged oral agreement with the deceased and, failing that, that he was entitled to recover a monetary amount (stated as R120 810) said to have been paid by him to SA Home Loans for the deceased’s benefit, formulated as a claim based on unjust enrichment.

2. Material Facts

The court treated it as part of the background that the applicant’s initial application sought, in effect, a declaration that he was the owner of a property in Zakariyya Park and an interdict preventing steps to have the property transferred out of his name, alternatively a claim for monetary relief. The initial application was dismissed, and the applicant was ordered to sign documents facilitating transfer of the property into the executor’s name.

A central factual premise advanced by the applicant in the earlier proceedings was that he and the deceased (his ex-wife) had concluded an oral agreement during approximately April 2018 pursuant to which ownership of the property was said to have passed to him. In the leave to appeal proceedings, however, the applicant abandoned the grounds of appeal directed at the refusal of transfer/ownership relief based on that alleged oral agreement and pursued leave only in relation to the dismissal of his monetary claim based on unjust enrichment.

In relation to the unjust enrichment claim, the applicant’s case (as described in the judgment) was that he paid amounts to SA Home Loans (Pty) Limited “for the benefit of the deceased”, allegedly in the form of monthly bond-related payments of approximately R5 800 from April 2018 to April 2020, totalling R120 810. The court recorded that the first respondent did not seriously take issue with the applicant’s averment that these payments were made over that period.

The applicant’s position, as set out in argument for leave to appeal, was that because the underlying causa was void (in the sense that the asserted transaction relating to acquisition of the property was ineffective), the amounts paid were allegedly not due to the deceased estate, and that the estate was accordingly enriched at his expense.

3. Legal Issues

The court was required to determine whether the applicant had satisfied the statutory threshold for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, namely whether the proposed appeal would have a reasonable prospect of success.

Although the original litigation had implicated the Alienation of Land Act 68 of 1981, specifically section 2(1) (formalities for alienation of land), the issue that remained live in this leave application was narrower. After the abandonment of the ownership/transfer grounds, the central question became whether there were reasonable prospects that another court would come to a different conclusion on the dismissal of the applicant’s unjust enrichment-based claim for R120 810, including whether the matter should have been dealt with differently in relation to proof and/or quantification.

The dispute in the leave application accordingly concerned primarily the application of the statutory leave-to-appeal standard to the case, and the application of unjust enrichment concepts to the largely common-cause payments as presented. It involved an evaluative assessment of prospects rather than a final determination on the merits of the enrichment claim.

4. Court’s Reasoning

The court reaffirmed that the test for leave to appeal is now codified in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, requiring that leave may be granted only when the judges concerned are of the opinion that the appeal would have a reasonable prospect of success. In explaining the applicable threshold, the court accepted authority to the effect that the statutory wording has raised the bar compared to the pre-existing position, and that an applicant therefore faces a higher and more stringent threshold.

Against that framework, the court noted that nothing materially new had been raised by the applicant in relation to the Alienation of Land Act point, and that the court’s earlier conclusion remained that section 2(1) of the Alienation of Land Act 68 of 1981 imposes strict formalities for alienation of immovable property; that provision had not been held unconstitutional; and it serves the purpose of certainty in land dealings. The court treated the applicant’s abandonment of the ownership/transfer grounds as an implied concession that the appeal had little prospect of success on that aspect.

The court then focused on the unjust enrichment component. It recorded the applicant’s argument that the payments to SA Home Loans were undisputed and that this supported an inference that the deceased estate had been enriched and the applicant correspondingly impoverished, in circumstances where the amounts were said not to have been due because the underlying causa was void. The court’s assessment emphasised that, on the evidence as presented, the applicant had made the relevant payments, and that the first respondent did not seriously dispute the payment pattern and total.

On that basis, the court concluded that another court was likely to reach a conclusion different from that reached in the original judgment on this narrow question. The court reasoned that it was “very probable” that another court, in light of the largely undisputed payment allegations, would find the deceased estate liable to refund R120 810 or some other sum, on an unjust enrichment basis, because the payments could be interpreted as enrichment at the applicant’s expense where they were not due to the estate.

The court therefore held that, although the appeal did not have reasonable prospects on the abandoned Alienation of Land Act/transfer relief issues, the proposed appeal did have reasonable prospects of success only in relation to the dismissal of the R120 810 unjust enrichment claim and the associated costs order. It expressly limited the leave to appeal accordingly and stated that the remainder of the earlier order (including aspects identified as prayers 2 and 3) remained extant and executable.

5. Outcome and Relief

The court granted the application for leave to appeal in part. Leave was granted to appeal to the Full Court of the Gauteng Division, Johannesburg only in respect of the portion of the earlier judgment and order dismissing the applicant’s R120 810 claim (identified as prayers 1 and 4) and the associated costs order.

Leave to appeal was refused in respect of the remainder of the earlier judgment and order, which remained operative. The court indicated in particular that parts of the earlier order (identified as prayers 2 and 3) remained extant and could be executed if necessary.

As to costs, the court ordered that the costs of the application for leave to appeal, including the wasted costs occasioned by the postponements on 19 May 2022 and 3 June 2022, would be costs in the course of the appeal.

Cases Cited

Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (Land Claims Court) (unreported).

Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).

Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)(a)(i).

Alienation of Land Act 68 of 1981, section 2(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant did not meet the leave-to-appeal threshold in relation to the ownership/transfer relief founded on an alleged oral agreement, particularly given the operation of section 2(1) of the Alienation of Land Act 68 of 1981, and in any event the applicant abandoned those grounds at the leave hearing.

The court held further that there were, however, reasonable prospects that another court would reach a different conclusion regarding the dismissal of the applicant’s claim for R120 810 based on unjust enrichment, given the payment allegations and the limited dispute about those payments. Leave to appeal was granted only on that issue and the associated costs order, with the costs of the leave application to be costs in the appeal.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal in the High Court is governed by section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which requires a court to be satisfied that the proposed appeal would have a reasonable prospect of success. The court accepted that this statutory formulation imposes a higher and more stringent threshold than the historical test applied under earlier legislation.

The judgment reaffirmed, in the context of the abandoned grounds, that section 2(1) of the Alienation of Land Act 68 of 1981 prescribes strict formalities for the alienation of immovable property and functions to secure certainty in transactions involving land, and that the provision had not been held unconstitutional on the material placed before the court.

In relation to the limited issue on which leave was granted, the judgment applied the principle that where a party alleges payments made for another’s benefit that were not due and that resulted in impoverishment to the payer and enrichment to the recipient (or their estate), a claim framed in unjust enrichment may have prospects of success, warranting appellate scrutiny where the factual basis for payment is not seriously disputed.