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[2013] ZASCA 100
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Fegen and Another v Mphakathi (348/2012) [2013] ZASCA 100 (9 September 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 348/2012
Reportable
In the matter between:
SHAWN MARK FEGEN
...............................................................
FIRST
APPELLANT
BRENDA YVONNE FLORENCE
FEGEN
...............................
SECOND
APPELLANT
and
DOUGLAS
MPHAKATHI
.....................................................................
RESPONDENT
Neutral
citation
:
Fegen
v Mphakathi
(348/2012)
[2013] ZASCA 100
(9 September 2013)
Coram
: Navsa,
Tshiqi & Pillay JJA & Van der Merwe & Swain AJJA
Heard
: 16 August
2013
Delivered:
9
September 2013
Summary
:
Successive
sales of immovable properties – prescription raised by a second
purchaser in relation to first purchaser’s
right to enforce
registration of transfer – onus discussed – held that
there had been an ongoing acknowledgement of
liability by the seller
to the first purchaser to transfer as against payment of the purchase
price – renunciation of benefit
of prescription – second
sale set aside by high court on basis that the second purchaser had
knowledge of prior sale –
held that the first purchaser had
established on balance of probabilities that second purchaser had
knowledge in the form of
dolus
eventualis
of the prior right to obtain transfer of the property – second
purchaser wilfully shut his eyes to the possibility of the
prior
rights and deliberately refrained from ascertaining the true position
– Appeal against decision of the Eastern Cape
High Court
accordingly dismissed.
Order
On appeal from:
Eastern Cape High Court, Mthatha (Miller J sitting as court of
first instance):
1. The appeal is
dismissed.
2. The appellants are
ordered to pay the respondent’s costs of the appeal.
JUDGMENT
_______________________________________________________________
NAVSA ADP & SWAIN
Aja
(
tshiqi & pillay jja & van der merwe aja
concurring):
The
present dispute was caused ostensibly by the conduct of Justice
Sigcau, the King of the Pondos (the King), selling two immovable
properties described as erf 711 and erf 712 Port St John’s,
successively. First, he sold those properties to Mr Douglas
Mphakathi (Mphakathi) and thereafter, prompted by the first
appellant, Mr Shawn Fegen (Fegen), to him and his wife, the second
appellant, Mrs Brenda Fegen (Mrs Fegen). The King subsequently
transferred the properties into their names.
When
the Fegens as a consequence gave notice to Mphakathi, who occupied
the properties, to vacate, he responded by way of an application
to
the Eastern Cape High Court, Mthatha, seeking orders declaring the
second sales null and void and setting aside the agreements
concluded between the King and the Fegens, as well as the transfer
of these properties to them.
That
application was opposed by the Fegens but the King, who was joined
as third respondent, chose to take no part in the proceedings.
Mphakathi alleged that the Fegens were aware of the prior sale
agreements between him and the King and acted mala fide in
concluding
the subsequent sale agreements. The application was
referred for the hearing of oral evidence on 2 December 2004, solely
on the
issue of whether the Fegens ‘were fraudulent and/or
mala fide’ when they entered into the subsequent sale
agreements.
The
hearing commenced before the High Court (Miller J) on 25 October
2005 and was subsequently adjourned on 24 November 2005 to
afford
the Fegens an opportunity to obtain the evidence of the wife of the
King, who was referred to as the Queen of the Pondos.
The matter
then resumed after a delay of almost five years on 19 July 2010, at
which stage the Fegens no longer wished to lead
any further
evidence, but raised two further issues which it was agreed would be
dealt with on affidavit. These issues were that
Mphakathi had
allegedly tampered with the sale agreement concluded between him and
the King in respect of erf 711, which rendered
‘the validity
of the agreement and the [credibility] of the applicant highly
questionable’, and that the respondent’s
claim for
transfer of the properties against the King had prescribed. We will
in due course comment on prescription being raised
so late in the
day.
The
court below held that the explanation advanced by Mphakathi as to
the alteration of the sale agreement was not so improbable
that it
could be rejected out of hand as untruthful. For present purposes,
that aspect need detain us no further. The court below
also held
that although Mphakathi’s claim for transfer of the properties
as against the King had prescribed, this had ‘no
bearing on
the question whether the sale and the transfer of the properties’
to the appellants were unlawful or not and
did not constitute a
defence to the claim of the respondent. On the merits of Mphakathi’s
claim, it held that the probabilities
were that the Fegens took
delivery of the properties with knowledge of their previous sale to
Mphakathi. The court below accordingly
granted an order declaring
the agreements of sale concluded between the Fegens and the King
void and of no force and effect and
set aside the transfer of the
properties to them.
With
the leave of the court below the Fegens appeal that judgment and
associated orders. Needless to say, the King did not appeal.
The
main grounds advanced on appeal were as follows:
6.1
The court below had erred in finding that the prescription of
Mphakathi’s claim to demand transfer of the property as
against
the King had no bearing upon the relief sought by Mphakathi as
against the Fegens. In addition, the notice of motion in
these
proceedings had not interrupted the running of prescription, because
it did not constitute a process in which Mphakathi claimed
‘payment
of the debt’ in terms of s 15(1) of the Prescription Act 68 of
1969 (the Act) – the debt being Mphakathi’s
right to
claim transfer of the properties. It was contended that the motion
proceedings in the court below were not a preliminary
step in the
enforcement of Mphakathi’s claim against the King for transfer
of the properties. It was submitted that at the
time when the present
proceedings were instituted, Mphakathi did not have a complete cause
of action for transfer, because he was
at that date in default of his
payment obligations in terms of the agreements concluded with the
King.
6.2
The court below had erred in deciding that Mphakathi had discharged
the onus of proving on a balance of probabilities that the
Fegens had
taken delivery of the properties with knowledge of the prior sale of
the properties to Mphakathi.
The
details upon which the present appeal is to be decided are set out
hereafter in this and the paragraphs that follow.
On
15 June 2000 Mphakathi purchased the two properties from the King.
The purchase price for erf 711 Port St John’s was
R150 000
and for erf 712 R110 000. Deposits of R20 000 in respect
of each sale were required and duly paid by
Mphakathi. In terms of
the agreements he was entitled to take immediate occupation of the
properties. He intended, with the knowledge
and approval of the
King, to cultivate crops to enable him to produce income to pay the
balance of the purchase price,
by
instalments of R20 000 every three months.
However,
Mphakathi was thwarted. He was unable to take occupation of erf 711
as it was unlawfully occupied by an entity described
as Khulisanani
Farming Project, which comprised a number of people who were
cultivating the property. In October 2001 he launched
proceedings
which culminated in the grant of a Writ of Ejectment by the high
court on 9 July 2003, almost two years later. There
is no gainsaying
Mphakathi’s assertion that he had agreed with the King to
institute those proceedings and that the costs
incurred by him in
doing so would be deducted from the purchase price. Mphakathi began
cultivating crops on the property during
the ploughing season
towards the end of 2003.
Although
the precise month is in dispute between Fegen and Mphakathi, it is
common cause that Fegen had visited Mphakathi on the
properties
during this period and that a conversation had taken place between
them. What is in dispute is the precise nature
of those discussions.
Fegen maintained that Mphakathi had said emphatically that he was
the owner of the properties, whereas
Mphakathi maintained that he
had said he was in the process of buying the properties. According
to Fegen any misunderstanding
was not caused by him but was as a
result of the intermittent use of a Xhosa interpreter.
Mphakathi and the
interpreter, both of whom testified in the court below, were
strenuous in their denial of any misunderstanding.
What
is clear from his evidence is that Fegen knew before the discussions
referred to in the previous paragraph had taken place
that Mphakathi
had taken steps to evict unlawful occupiers from erf 711. It is
equally clear that a Mr Faber, from whom Fegen
had bought a
neighbouring piece of land, had also told him about these evictions.
Fegen said he would accordingly not deny that
Mphakathi had been
involved in protracted litigation to evict the occupiers. Mr Faber,
when asked by Fegen who was the owner
of the properties, replied
that he thought it was Mphakathi. Fegen said that when he met
Mphakathi for the first time he saw
that the properties had been
cultivated and that there were crops.
He had
commended Mphakathi for the good work he was doing. Thus it is clear
that the picture that presented itself to Fegen was
one of Mphakathi
being firmly ensconced on the land.
It
is important to note that it is undisputed that Fegen had, during
the discussions referred to above, offered to buy the properties
from Mphakathi and to pay more for them than he had paid, but that
even on that basis Mphakathi had refused to sell.
Fegen
stated that he had believed Mphakathi when the latter had said that
he was the owner of the properties. According to Fegen
he then went
about establishing whether there was another property in the
vicinity owned by the King. When he approached the
King he was
referred to the Queen who told him that they had various riverfront
properties for sale. It is apparent that Fegen’s
dealings were
mainly with the Queen.
Fegen,
apparently to obtain certainty and clarity, contacted an estate
agent, Ms Debbie Fourie, who assisted him to examine maps
of the
area and to locate riverfront erven. After locating the position of
these properties, including erven 711 and 712, Fegen
faxed copies of
the relevant map to the Queen indicating to her that these two erven
were the properties in respect of which
Mphakathi claimed ownership.
The Queen denied that Mphakathi owned those properties and accused
him of lying. She informed Fegen
that Mphakathi was leasing the
properties from the King. Fegen asked for a copy of the lease, which
the Queen could not produce.
According to Fegen she did,
however,
inform him that Mphakathi
had paid a ‘little deposit’. No clarification was sought
or provided in regard to this aspect.
Fegen did not explore the
question of ownership or of the lease any further with the Queen. He
adopted the attitude that ‘it’s
got nothing to do with
me’.
Notwithstanding
this avowed posture, Fegen nevertheless approached the Department of
Land Affairs in Mthatha to establish who
owned those properties.
They informed him that the properties were registered in the name of
the King. Fegen explained that these
enquiries and responses
emboldened him to approach the Queen and conclude agreements of sale
with the King apparently without
meeting him, for the purchase of
erf 711 and erf 712 for the sum of R30 000. However, the deed
of transfer in respect of
the properties reflects the price as
R25 000. This anomaly remains unexplained.
Fegen
did not return to Mphakathi to take up the question of ownership
with him, as one would have expected him to. He testified
that he
did not consider that he had a duty to do so. Fegen conceded that if
he had gone to Mphakathi and told him what the Queen
had said,
Mphakathi could have shown him the sale agreements. He would not
have bought the properties and the present litigation
could have
been avoided. Fegen acknowledged that he should have gone back to
Mphakathi with the information he had obtained concerning
the
properties. He had never told his attorneys about the conflict
between what the Queen and Mphakathi had said concerning the
properties. Fegen said he had no idea what the agreement was between
Mphakathi and the King because he did not want to go and
involve
himself in other people’s agreements.
The
facts set out in the preceding paragraphs are material inter alia to
a conclusion on the bona fides of the Fegens. Before
dealing with
the conclusions of the court below in this regard, it is necessary
to deal with the prescription point raised on
behalf of the Fegens.
As pointed out earlier,
this issue was raised five years after the conclusion of oral
evidence. It will be recalled that the referral
to oral evidence was
restricted to the issue of bona fides
on
the part of the Fegens
.
It is significant to
note that during those proceedings the following exchanges between
the parties’ legal representatives,
Mphakathi and Miller J
1
took place in relation
to the question of whether the agreements between Mphakathi and the
King remained extant:
‘
Mr
Hobbs
:
And have you from your – the income you derive from your
farming have you paid any money to the king, the third respondent?
Mr
Dukada
: M’Lord, I’m – with due respect, I’m
objecting to this type of questioning. My humble submission is that
it’s not relevant to the case that is before you, M’Lord,
the – that is the – that is another matter, the
question
of the sale between the applicant and the third respondent, with due
respect, M’Lord.
Mr
Hobbs
: M’Lord, with respect, the man is relying –
he’s seeking to establish that he has an agreement which is
binding.
I think it’s trite law, if one wants to seek to
enforce an agreement that you have to tender or perform your
obligations
in terms of that agreement too. . . .
Mr
Dukada
: . . . .The question of this – the performance or
the non-performance under the contract, that is an issue that is
between
the seller – the third respondent and the applicant.
Court
:
Yes, but is that contract still in existence?
.
. .
Court
:
. . . . I’m just asking you, is there an allegation that is
still in – is it common cause? Let’s put it that
way,
that it’s in existence?
Mr
Dukada
: As far as the papers are concerned it’s common
cause, there’s nothing which raises that as an issue –
it’s
not raised as an issue. Otherwise it could –
supposing at the end of the day, M’Lord, Your Lordship would
let’s
say set aside the deed of transfers here, then we get for
another second stab(?) for the applicant to enforce his rights. Then
it’s only when he enforces his rights then that he would meet –
if any, he would meet the . . . (intervention).
Court
:
Yes, but you see, we have here a situation where the third respondent
is not represented here, right?
.
. .
Court
:
So my prime concern is whether – and if I’m told that
it’s common cause that that contract’s in existence,
that’s fine as far as I’m concerned. But I don’t
want to go ahead not knowing whether or not that contract –
those contracts, when I say still in existence, have not been
cancelled.
Mr
Dukada
: My observation, M’Lord, is that fortunately in this
case the seller – the third respondent, the honourable king,
was
joined – he was joined. He’s the party who was given
an opportunity – if he could say, “At the time I
concluded
the contract of sale with the first respondent, the
contract of sale between applicant and myself has been cancelled and
cancelled
. . . (indistinct).
.
. .
Court
:
Look, I think we must just proceed on the basis that that contract is
still in existence.’
As
explained earlier, prescription was raised five years after evidence
was concluded on the issue of the bona fides of the Fegens.
The onus
is on a party alleging that an obligation has been extinguished by
prescription to plead and prove the necessary averments
in this
regard.
2
It is now necessary to
have regard to what was stated in relation to the existence of the
contract by Mphakathi in his founding
affidavit by the Fegens in
their answering affidavit, by the King in his affidavit in support
of the eviction proceedings and
by the Fegens in the supplementary
affidavit raising the prescription point and Mphakathi’s
response thereto.
In his founding
affidavit Mphakathi stated the following in respect of the
agreements with the King:
‘
[They
are] still in force as they had not been cancelled nor had they
lapsed and in fact . . . are open ended and do not have an
expiry
date.’
The Fegens’
response to this allegation in the answering affidavit was as
follows:
‘
Whilst
the applicant may have had a personal right against breach of the
said agreements by the third respondent, that would not
affect the
rights [of]
innocent
third
parties who unbeknown to themselves, entered into agreements with the
third respondents which infringe on the applicant’s
right.’
(Emphasis added – in relation at that stage to the only live
issue between the parties.)
The King, in support of
Mphakathi’s application to evict the unlawful occupants of erf
711, said the following concerning
the continued existence and
enforceability of the agreement:
‘
I
must state further that I sold Erf 711 Port St Johns
to
Mr MPHAKATHI as I owned it and the Deed of Grant in respect of this
erf is enclosed. . . ‘
The
King’s affidavit is dated 4 April 2001. There is nothing to
indicate that this view of the King’s viz-a-viz Mphakathi
in
relation to the continued existence and enforceability of the
agreements has since been recanted. If anything, the indications
are
to the contrary. We will in due course deal with the relevance of the
second sale in relation thereto. The King, it appears,
pointedly did
not participate in the proceedings in the court below and his wife
did not, as presaged by the Fegens, side with
them by testifying in
support of their case.
It
is clear from what is set out in the preceding paragraphs that at
the end of the oral evidence proceedings the continued existence
and
enforceability of the agreements between Mphakathi and the King were
not in issue.
In the affidavit filed
half a decade later,
the Fegens say the
following:
‘
12.
The agreement of sale for Erf 711 provides for payment of the
purchase price of R150 000.00 to be made by way of an initial
deposit of R20 000.00 and the balance of R130 000.00
payable in instalments of R20 000.00 every three months
commencing
31 October 2000 until the balance is paid in full. The
full purchase price would consequently become payable by Applicant on
30
April 2002.
13.
The sale agreement for Erf 712 contains a similar provision for
payment. In terms of this agreement, the purchase price of
R110 000.00 was payable by way of an immediate deposit of
R20 000.00 and the balance of R90 000.00 to be paid by
means of instalments of R20 000.00 commencing 31 October 2000
and thereafter every three months until the balance is paid
in full.
Consequently, the full purchase price would become payable by 31
October 2001.
14.
On Applicant’s own version in both his founding affidavit and
the evidence led, all he has paid is the deposit in respect
of both
agreements namely R40 000.00. No further payments have been
made. Applicant is apparently waiting for a loan from
the Land Bank
to materialise.
15.
The transfer clause in both agreements is exactly the same. Transfer
to the purchaser shall be effected as near as possible
to the date of
payment of the full purchase price.
16.
It is submitted that Applicant’s right to claim transfer of
both properties from the King has prescribed. In a respect
of Erf
712, the right prescribed on 1 November 2004 and in respect of Erf
711, the right prescribed on 1 May 2005. I say this because:
16.1.
the aforesaid dates reflect a period of three years from the date
that Applicant was obliged to pay the purchase price in
full;
16.2.
Applicant has taken no steps against the King within the three year
period pertaining to each agreement to compel him to effect
transfer.’
Ultimately, in his
affidavit, Mphakathi’s response was that the enforceability and
continued existence of the agreements was
an issue between himself
and the King and did not concern the Fegens and that prescription was
not a valid defence to his application
to have the agreements between
him and the King set aside. Importantly, Mphakathi stated the
following in his response:
.
. . ‘I have been advised by the Land Bank that the bank is
ready to advance me money for the purchase price as soon as this
case
is finalized.’
There
is authority for the proposition that the invoking of prescription
is not confined to an action between the original creditor
and
debtor in terms of s 17(2) of the act. In this regard see
Lipschitz
v Dechamps Textiles GMBH and another
1978 (4) SA 427
(C). It is
on that case that the court below relied in holding that
prescription in relation to Mphakathi’s right to claim
transfer from the King could be raised by the Fegens. The court
below went on to hold that that claim had prescribed and that
there
was no indication that the King had at material times acknowledged
liability to transfer the properties to Mphakathi. Miller
J went on
to state that Mphakathi had also failed to claim transfer from the
King. Paradoxically, Miller J then went on to hold
that prescription
was irrelevant to Mphakathi’s claim for cancellation and
transfer as his claim was based on the prior
knowledge of the Fegens
concerning his agreement with the King.
Prescription
can, in terms of s 14 of the Act, be interrupted by an express or
tacit acknowledgement of liability by a debtor
to a creditor which,
in the present case, would be the King in relation to Mphakathi in
respect of the transfer of the properties.
What s 14 contemplates is
an acknowledgment of liability to the creditor or his agent, see
Pentz v Government of the Republic of South Africa
1983 (3)
SA 584
(A) at 594B-C. It is also well established that the benefits
of prescription, once it has been completed, can be renounced. It
is
significant to note that such renunciation is usually distinct from
the concept of waiver. For the distinction between an
acknowledgement of debt interrupting prescription and renunciation
of the benefits of prescription see
Brown v Courier
1963 (3)
SA 325
(N) at 329-330.
The
agreements between Mphakathi and the King envisaged immediate
occupation and the right of the purchaser to claim transfer
would
only arise after payment of the full purchase price. In the present
case it is evident from the details set out earlier
in the judgment
that the King was content to have Mphakathi take the necessary steps
to evict the unlawful occupiers which, as
pointed out, was a process
that took close to two years. Furthermore, the King allowed
Mphakathi to continue in undisturbed occupation
up until Mphakathi
received a letter to vacate from Fegen’s attorney and to
engage in what appears to be fairly large scale
farming. It is
abundantly clear that the King had supported the application to
evict the unlawful occupiers and even when the
application leading
up to this appeal was launched, the King was equally happy not to
enter the fray. In our view, the court
below erred in concluding
that there was no acceptable evidence upon which to base a
conclusion that prescription (if it were
held to apply) had not been
interrupted by an acknowledgement by the King of the debt,
and in not considering
that ultimately the benefits of prescription might have been
renounced.
Mphakathi was not a
typically idle, careless or negligent creditor.
3
He initially had to
contend with not being given
vacuo
possesio
.
It took costly litigation and a long period of time before Mphakathi
could take occupation of the properties he had purchased.
Then he
had to put up with the King purporting to sell the properties to the
Fegens without notice to him. He had to litigate
for a second time
over an ever lengthier period – almost a decade – to
defend his right to finally obtain transfer.
The King was joined as
a party to that litigation but chose not to contest Mphakathi’s
asserted right to set aside the
transfer as part of the process of
finally obtaining transfer. As far as Mphakathi is concerned the
King left him under no illusion
that the agreement was still alive
up until he received the demand from the Fegens’ attorney to
vacate the properties.
That notwithstanding, the King did not take
any steps to place him on terms or to terminate the contract. It
will be recalled
that Fegen initially dealt with the Queen and not
the King. It cannot be over-emphasised that at no stage, until the
notice to
vacate, which fell within the prescriptive period, did the
King intimate to Mphakathi or conduct himself so as to indicate that
he was not acknowledging his obligation to give transfer upon
payment of the purchase price, nor did he take any of the above
steps. To sum up: There was a long-
standing
acknowledgement of liability to transfer upon payment of the
purchase price, up until the letter to vacate. When proceedings
were
lodged in the court below, the King chose not to contest an
assertion of Mphakathi’s right to demand transfer against
payment of the purchase price. The King must therefore be considered
to have either continued his acknowledgment of liability
to
transfer, alternatively renounced his right to rely upon
prescription. For the reasons set out above, the defence of
prescription
must fail. It could, with some justification be said
that prescription as an issue in this case was diversionary.
In the light of these
conclusions it is not necessary to deal with the submission on
behalf of the Fegens, referred to in paragraph
6.1 above, namely
that the application in the court below had not interrupted
prescription in relation to Mphakathi’s right
to claim
transfer from the King.
There is no merit in the
submission by counsel representing the Fegens that because of the
parol evidence rule, prescription had
to be applied in absolute
terms in relation to the date upon which failure to pay the first
instalment was specified in each
of the agreements. Incidentally,
this point was raised before us by counsel on behalf of the Fegens
and had not been taken until
the eleventh hour in argument. The
submission is unfounded for the reasons that follow. Mphakathi was
not put on notice, in terms
of the agreements, to comply with
specified obligations, nor in the light of the King’s failure
to give him undisturbed
possession, could this have occurred within
the time periods provided for. In any event, in terms of the
agreement, the King
had a choice to cancel or enforce the agreement
in the event of a failure by Mphakathi to meet his obligations and
in respect
of the granting of indulgences. As set out above, it is
clear that the King, at all relevant times, in effect, acknowledged
liability
to effect transfer of the properties upon payment of the
balance of the purchase price or renounced the benefits of
prescription.
The question of a waiver of contractual rights does
not arise in the present case.
Returning to the
question of bona fides, we are of the view that the court below
cannot be faulted in its conclusion that on the
probabilities the
Fegens must have known that there had been a prior agreement between
the King and Mphakathi for the sale of
the properties.
In
Meridian Bay
Restaurant (Pty) Ltd & others v Mitchell NO
2011 (4) SA 1
(SCA) para 18, the following appears:
‘
Thus
C, the acquirer of the real right, does not need to have actual
knowledge of B’s prior right. It suffices that C subjectively
foresaw the possibility of the existence of B’s personal right
but proceeded with the acquisition of his real right regardless
of
the consequences to B’s prior personal right.’
Ponnan JA added that the
reference to
dolus eventualis
in
the judgment in
Associated South African
Bakeries (Pty) Ltd v Oryx and Vereinigte Bäckereien (Pty) Ltd &
andere
1982 (3) SA 893
(A) echoed what was
said by Ogilvie Thompson JA in
Grant v
Stonestreet
1968 (4) SA 1
(A) at 20F where he
said the following:
‘
.
. . if a person wilfully shuts his eyes and declines to see what is
perfectly obvious, he must be held to have had actual notice
. . . .’
Applying that dictum to
the following facts, the compelling conclusion is that Fegen at the
very least subjectively foresaw the
possibility that the King had
previously sold the properties to Mphakathi, but purchased them
reckless of the consequences to
Mphakathi’s prior rights.
Fegen wilfully shut his eyes to the possibility of Mphakathi’s
prior rights and deliberately
refrained from ascertaining the true
position from Mphakathi.
30.1. Fegen was aware
that Mphakathi vigorously asserted his right to occupy the
properties.
30.2. Mphakathi
permanently occupied the properties at all times by farming them.
30.3. Fegen had offered
to buy the properties from Mphakathi and pay more for them than
Mphakathi had paid but this was refused
by Mphakathi.
30.4. The explanation
given by the Queen to Fegen as to the basis upon which Mphakathi
occupied the properties was extremely vague.
30.5. Fegen’s
attitude was that any agreement between the King and Mphakathi had
nothing to do with him.
30.6. Fegen was unable to
advance any plausible reason why he did not ask Mphakathi about the
Queen’s statements concerning
his right to occupy the
properties.
There
was some debate before us what the consequences would be for the
parties if the conclusion by the court below was confirmed.
As
debated before us and accepted by the parties it is beyond the scope
of this judgment to enter into that debate.
In the light of the
above the following order is made:
1. The appeal is
dismissed.
2.
The appellants are ordered to pay the respondent’s costs of the
appeal.
_________________________
M S NAVSA
ACTING DEPUTY
PRESIDENT
K G B SWAIN
ACTING JUDGE OF APPEAL
appearances:
FOR APPELLANT: N J GRAVES
sc
VENN NEMETH & HART,
PIETERMARITZBURG
McINTYRE & VAN DER
POST, BLOEMFONTEIN
FOR respondeNT: A R
DUMINY
DZ DUKADA & CO ING,
MTHATHA
MOLEFI THOABALA,
BLOEMFONTEIN
1
These
exchanges occurred during cross-examination of Mphakathi.
2
See
Gericke v Sack
1978 (1) SA 821
(A) at 827H-828A and
Duvenhage v Eerste
Nasionale Bank van SA Bpk
[2005]
4 All SA 41
(N) at 60A-B and J Saner
Prescription
in South African Law
(2012)
at 3-139.
3
See
J Saner
Prescription in
South African Law
op
cit
., 1-3 para 1.2 and the
authorities there cited, especially
Road
Accident Fund v Mdeyide
2011
(2) SA 26
(CC).