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[2012] ZAECPEHC 67
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Dlukulu No v Master of the High Court and Others (549/2010) [2012] ZAECPEHC 67 (18 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
CASE NO: 549/2010
DATE
HEARD: 13/08/2012
14/08/2012
DATE
DELIVERED: 18/09/2012
In the matter between
NOXOLO EDITH DLUKULU N.O
.......................................................................
Plaintiff
and
THE MASTER OF THE HIGH COURT
.................................................
First
Defendant
MYNARD BEJA
...............................................................................
Second
Defendant
THE REGISTRAR OF DEEDS, CAPE TOWN
.....................................
Third
Defendant
NEDBANK LIMITED
..........................................................................
Fourth
Defendant
LAWRENCE MASIZA VORSTER INC
..................................................
Fifth
Defendant
THANDI TONISI
....................................................................................
Sixth
Defendant
JUDGMENT
ROBERSON J:-
[1] The plaintiff was authorised by
the first defendant (the Master) to administer the estate of the late
Nomvula Isabella Radu
(the deceased), who died on 13 June 2003. The
plaintiff is the daughter of the deceased. On 25 July 1990 the
immovable property
described as Erf 7748 Motherwell (the property)
was registered in the names of the deceased and the second defendant
(Beja), each
having a 50% share.
[2] In this action, which is defended
only by Beja, the plaintiff claims the following relief:
[2.1] For a declaration to the effect
that:-
[2.1.1] the Second Defendant enjoys no
rights in and to Erf 7748, Motherwell, situated at 5 Kwenxurha
Street, NU6, Motherwell, Port
Elizabeth;
[2.1.2] Erf 7748, Motherwell, situated
at 5 Kwenxurha Street, NU6, Motherwell, Port Elizabeth is the
property of the deceased, Nomulva
Isabella Dlukulu;
[2.1.3] the appointment, by First
Defendant, of the Second Defendant as the executor of the Late
Nomvula Isabella Dlukulu to be
of no force or effect;
[2.1.4] the sale of Erf 7748,
Motherwell, situated at 5 Kwenxurha Street, NU6, Motherwell, Port
Elizabeth to the Sixth Defendant
to be of no force or effect;
[2.2] An order setting aside the
Second Defendant as the executor of the late Nomvula Isabella
Dlukula;
[2.3] An order interdicting the Fifth
Defendant from taking any steps to transfer Erf 7748, Motherwell,
situated at 5 Kwenxurha
Street, NU6, Motherwell, Port Elizabeth to
the Sixth Defendant;
[2.4] An order in terms whereof such
of the Defendants as may defend this action are ordered to pay the
costs thereof;
[2.5] An order granting the Plaintiff
such further and/or alternative relief as this Honourable Court may
deem appropriate.
PLEADINGS
[3] It is necessary to set out the
particulars of claim and the plea in some detail, because in both
cases, the evidence fell short
of what was pleaded, and demonstrated
that to some extent the allegations in the pleadings were speculative
and based on assumptions.
Particulars of claim
[4] It was alleged in the particulars
of claim that during 1990 the deceased wanted to purchase the
property, but her application
to the Natal Building Society, now
Nedbank (NBS), for a loan was rejected and she was advised that her
application would be favourably
considered if she could procure a
surety and co-principal debtor. The deceased approached Beja, who
undertook to bind himself as
surety and co-principal debtor if NBS
granted a loan to the deceased. In circumstances unknown to the
plaintiff, and as a result
of an error or a misunderstanding on the
part of NBS officials, or the attorneys attending to the registration
of the property,
the property was registered jointly in the names of
the deceased and Beja, and a mortgage bond was registered over the
property
by the deceased and Beja, in favour of NBS. Beja at all
times only intended to be bound as surety and co-principal debtor and
had
no intention to acquire rights in the property. All payments in
reduction of the loan from NBS were made by the deceased, and after
her death the balance of the debt owing to NBS was discharged by the
proceeds of an insurance policy over the life of the deceased,
which
policy had been ceded to NBS. During 2008 Beja was authorised by the
Master to administer the estate of the deceased. It
was alleged he
did so fraudulently, by misrepresenting to the Master that he was the
deceased’s brother. During 2009 Beja
sold the property to the
sixth defendant.
Plea
[5] Beja pleaded that he and the
deceased intended to purchase the property because they were involved
in a romantic relationship
and planned to marry. He and the deceased
were assisted in applying for a loan by developers “Galf
Coopers Construction”
(the name must be Gough Cooper). He and
the deceased were told that in order for the loan to be approved they
had to see a doctor
for tests so that insurance could be obtained for
the loan. They were then sent to attorneys who were to attend to the
transfer
of the property, which was transferred into both their
names. He denied that he undertook to be a surety and co-principal
debtor,
and that the property and the bond were registered in both
his and the deceased’s names as a result of an error or
misunderstanding.
He denied that he intended only to be a surety and
co-principal debtor and that he had no intention to acquire rights in
the property.
He denied that the deceased made all the payments in
reduction of the loan, but admitted that the proceeds of the policy
over the
life of the deceased were paid to NBS. After the deceased
died, he was called to a meeting at the offices of the plaintiff’s
attorneys, at which meeting he was told to sign documents to effect
the transfer of his half share of the property to the estate.
He
refused to do so. After a second meeting was called which the
plaintiff did not attend, he was advised by the attorneys to approach
the Master to apply to be appointed as executor. He denied that his
appointment was fraudulently obtained and pleaded that he had
informed the Master that he was the deceased’s boyfriend. He
admitted selling the property to the sixth defendant, and that
he
appointed the fifth defendant to attend to the conveyancing.
INTERDICT
[6] On 2 March 2010 the plaintiff was
granted an order interdicting Beja and the fifth defendant from
taking steps to transfer the
property, and interdicting Beja from
dealing with the estate of the deceased, pending the outcome of this
action.
EVIDENCE FOR THE PLAINTIFF
[7] Mr Mzwandile Ngqumetyana testified
that he was a relative of the deceased and has a close relationship
with her family. During
2007 he, the deceased’s sister Edith,
the plaintiff, and the deceased’s son Mthetheleli, went to the
plaintiff’s
attorneys of record for the purpose of having the
property transferred to the plaintiff and Mthetheleli. The person who
attended
to them at the attorney’s office, with reference to a
document produced on a computer, informed them that Beja’s name
was on the title deed and that they should meet with him. They were
shocked at the news because none of them knew him. They were
advised
to speak to Beja to see if he was prepared, as he expressed it, “to
take his name out”. Ngqumetyana said that
Edith remembered that
the deceased had wanted to buy a house and had applied for a loan at
the bank, but her income was insufficient.
The deceased had then
asked Beja to assist her because they were working together at Pick
and Pay, and told him that they should
combine their salaries so that
she could qualify for a loan and purchase the property.
[8] Ngqumetyana found out where Beja
lived and he and Mthetheleli went there and met him. They introduced
themselves and told Beja
that they had come to see him because they
had discovered that he was a co-owner of the property and the
property was to be transferred
to the deceased’s children. For
that purpose, again as it was expressed, “his name had to be
removed”. Beja had
forgotten about the property but after their
explanation he remembered it and seemed not to have a problem with
their request,
and agreed to it. Beja was ill at the time and an
arrangement was made that they go the next day to the attorneys. The
next day
they travelled together to the attorneys’ offices and
the person assisting them explained to Beja the purpose of his
presence
there. Beja refused to sign documentation and said that he
had R20 000.00 invested in the property. Ngqumetyana told him they
were
not going to give him R20 000.00 and that he should produce
documents proving that he had put that sum into the house. Beja did
not produce such documents, and left before the meeting was
concluded. Beja did not contribute in any way to the purchase of the
property, because there were no documents or receipts to prove that
he did. Deductions were made from the deceased’s salary
in
payment of the loan. After the death of the deceased the house was
paid off by the proceeds of the life policy and certain death
benefits paid out by Pick and Pay. It was put to Ngqumetyana in
cross-examination that Beja had paid a R1 500.00 deposit towards
the
property. He said that Beja made no mention of that payment at the
attorneys’ offices.
[9] Documents relating to Beja’s
appointment by the Master recorded that his relationship to the
deceased was stated as “brother”.
According to
Ngqumetyana, Beja was not related to the deceased and he did not know
of a relationship between them. The deceased
and Mthetheleli’s
father, whose name he forgot, were in a relationship at the time she
purchased the property. He agreed
that the deceased previously lived
at Kwazekhele but disputed that Beja would have stayed overnight
there because it was against
the customs of the deceased’s
mother, with whom the deceased lived. He could not dispute that the
deceased and Beja were
taken to the property to view it, and signed a
“happy letter”.
[10] According to Ngqumetyana no
further meetings were called or held with Beja at the attorneys’
offices, and thereafter
Beja threatened that he was going to sell the
house and sent estate agents to view the property.
[11] Two affidavits were read into the
record by Ngqumetyana, one purporting to be by the deceased and the
other purporting to be
by Beja. Both documents were discovered by the
plaintiff. The Rule 37 minute provided
inter alia
that it was
agreed that no issues could be decided by production of proof by way
of affidavit, and that documents discovered by
them could be handed
in and referred to at the trial without the necessity for formal
proof thereof, subject to the right of either
party to demand formal
proof of any particular document should the other party wish to make
use of that document. Both affidavits
reflected that they were signed
on 25 April 1995 before a commissioner of oaths at Motherwell police
station.
The affidavit of the deceased read as
follows:
“
On
1990 I bought a house from Premier Homes, at Motherwell.
Mrs
Tenant who was employed under Premier Homes together Mr Holleys. They
ask Mynard Beja as my security. That was a mistake because
of unaware
that he will be as the owner. I now wish that the mistake to be
corrected that I am
the
lawful owner of this house 5 Kwenxurha Street. Everything paid by
me.”
The affidavit of Beja read as follows:
“
I
am the lawful owner of the said house. On 1990 when Miss Dlukulu
bought a house from Premier Homes. I had been asked by Miss Tanant
and Mr Holles that I must produce my I D document, unaware that the
house will be registered on my name. I now wish to certify
that the
owner of the house is Miss Dlukulu as she paid for everything.”
[12] The plaintiff testified that she
met Beja for the first time at the attorneys’ offices. The
deceased had never mentioned
a relationship with Beja, and the
deceased had a relationship with Methetheleli’s father, Jackson
Jokolo, from 1987 until
1990, when she purchased the property. The
deceased never told her about her intention of purchasing the
property, and she knew
nothing of the circumstances leading up to the
purchase. She did not know that the deceased had problems in securing
a loan. She
merely learned that the deceased had the property. The
plaintiff lived with the deceased at Kwazekhele, and at the property
from
1990, and Beja had never lived at the property. When it was put
to her that Beja had lived there for a brief period, she said she
did
not know him. She too said that the deceased’s mother would not
have allowed him to stay overnight when they lived at
Kwazekhele.
[13] She was shocked when she learned
that Beja was a co-owner of the property but accepted that he was.
She did not know if he
had contributed towards the purchase of the
property, and said that the deceased was employed and had paid for
the house. She was
asked in cross-examination if she had learned that
there was a dispute about his entitlement to a 50% share in the
property and
her answer was no. When asked if she wanted Beja to
remain a co-owner, she said no, but when asked what she wanted him to
do, she
said nothing. She said she was unable to say that he could
not have a 50% share. When asked if he were to offer to sell his 50%
share would she accept the offer, she said she did not understand.
Eventually when asked what she wanted out of the court proceedings,
she said they wanted the property to be part of the deceased’s
estate because Beja had not contributed anything towards its
purchase. She knew this because he never produced any documents to
prove a contribution. She agreed that she did not know if he
had
contributed anything and was unable to say that he could not benefit.
EVIDENCE OF BEJA
[14] Beja testified that he and the
deceased had a romantic relationship from 1987 until 1994. They met
in 1987 at Pick and Pay
where she was employed. At the time he was
employed at Firestone. He would sleep over occasionally at her
mother’s home and
the deceased would sleep over at his home. He
met the deceased’s mother and did not notice that she was
strict. He and the
deceased decided to purchase the property because
they planned to marry, and went to Gough Cooper where they produced
their payslips
and were told to pay a deposit of R1 500.00. The
purchase price of the property was R45 000.00. He paid the deposit
because he
was employed at the time. They were asked how many
bedrooms they wanted and were also shown a picture of a completed
house. At
Gough Cooper they were given forms to complete and to take
to attorneys in Central (presumably Port Elizabeth Central). There
their
blood was taken and they were weighed, and they signed certain
documents. The document they were given at Gough Cooper was to
purchase
the property. They returned to Gough Cooper, where they were
told to wait until the house was built.
[15] When the house was completed, he
and the deceased went to see it and signed a “happy letter”.
He lived in the house
with the deceased for about three months,
during which time he never saw the deceased’s children in the
house, and did not
live with them there. He only learned who they
were when he met them at the attorneys’ offices.
[16] He and the deceased did not
borrow the purchase price. They combined their salaries to see if
they qualified to purchase. He
and the deceased had discussed the
deduction of the instalment of R450.00 from her salary to be paid to
the bank. The instalment
was deducted from her salary and he paid his
share to her in cash. He was shown a copy of the deceased’s
payslip dated 30
June 2000 which reflected a deduction of R555.00,
and he said he had given her half of that amount. He did not know if
the money
deducted from the deceased’s salary and the amount he
gave her was paid to Gough Cooper because he is not educated. He did
not know that Gough Cooper had to be paid. He accepted that Pick and
Pay paid the deductions from the deceased’s salary to
the bank
and said that when he and the deceased purchased the property, they
went to the bank where they were told the money had
to be paid in
instalments. However, when shown an NBS statement of loan account in
his and the deceased’s name, and a letter
addressed to both of
them from NBS informing them of a reduction in the interest rate and
a new instalment, he said he had never
borrowed money from the bank.
He had never before seen a statement from the bank. He did not
dispute that the bank had paid Gough
Cooper in full, because he was
not present.
[17] He agreed that he and the
deceased registered a bond over the property. His understanding is
that a bond is registered when
a property is bought on credit and
deductions are made from your salary. If you do not pay, the house is
taken.
[18] After a misunderstanding between
him and the deceased because of his drinking, he moved to an area
known as Shukushuma. There
he lived in a shack and later moved to an
RDP house. The shack had no electricity and a bucket toilet and was
not of the same standard
as the property he and the deceased had
bought. He and the deceased decided that he should go and live in the
shack because they
were fighting and he was afraid that he would be
arrested. Their relationship continued after he moved and she would
visit him
at the shack. This arrangement continued after he left the
property, until the relationship ended in 1994. The relationship
ended
because there was no love between them and they argued. He
possessed no documents pertaining to the property because he left
them
with the deceased.
[19] During cross-examination he was
shown a sketch of a floor plan of a house, showing the layout of
rooms, and was asked if that
was the property. He said that the
boundary was different and that the rooms depicted in the sketch were
not correct, for example
that a room marked “bedroom” was
the dining room. He was then informed that the sketch was made up by
the plaintiff’s
attorney and was not a sketch of the property.
His response was to say that he did not have a good memory of the
property because
he had not lived there for a long time.
[20] He was unaware that the deceased
died in 2003 and only found out when Ngqumetyana, the plaintiff, and
Mthethetheleli arrived
at his home. Ngqumetyana asked him if he knew
the property was registered in his name and he said that he knew.
They told him he
should transfer the property into the name of the
deceased’s children, and he said he would only do so if he
could get his
50% share. Ngqumetyana said they should go to the
attorneys’ offices. At the attorneys’ offices the
attorney was not
there and they were attended to by a secretary, who
asked who the co-owner was. He said that he was and she said she
wanted to
speak with him and not the others. The following day he
fetched the family members and took them to the attorneys’
offices,
where they met a female attorney, who told him that
Ngqumetyana and the deceased’s children had said that he was
going to
transfer his share of the property. Beja said only if he got
his 50%, at which he and Ngqumetyana argued and Ngqumetyana was told
to leave. Beja denied that he had walked out of the meeting. The
attorney said they should try and solve the problem but no agreement
was reached, and that is why he decided to sell the property so he
could get his 50%.
[21] A further appointment had been
made with the attorneys but the family failed to attend and
eventually he asked the attorney
what he should do and was told to do
as he wanted. He asked for a copy of the deceased’s death
certificate and identity document
and approached the Master. Once he
received the letter of authority he took steps to sell the property.
He did not complete the
documents which he signed at the Master’s
office which reflected that he was the deceased’s brother and
he did not
say he was the deceased’s brother. He is uneducated
and was merely told to sign.
[22] He denied that he had signed the
affidavit in which he was purported to have said that the deceased
was the owner of the property,
or that he had purchased a house from
Premier Homes. He did not go to Motherwell police station and knew
nothing about the document.
[23] With regard to the affidavit of
the deceased, he said he did not know what a suretyship was but after
it was explained to him,
he said it had not been agreed between him
and the deceased that he would be a surety, and that they had
purchased the property
together. There had been no mention of a
suretyship at Gough Cooper, he had not met Holleys and Tenant, and he
did not know who
he had met at Gough Cooper.
[24] His present stance is that the
property should be sold or he should given his 50% of the property,
presumably the value of
his share. Although it was put to Ngqumetyana
that Beja had not mentioned the sum of R20 000.00 at the attorneys’
offices,
Beja said he had asked for R20 000.00 after thinking about
it and because the purchase price was R45 000.00.
[25] When asked why he had done
nothing about enforcing his right in the property from 1990 until
2007, he said that he did not
have a reason to evict the family
because he knew the property was his, but he decided to do so when he
learned they wanted it
transferred to them. If he had not known of
the deceased’s death he would have let her stay in the
property.
[26] After their relationship ended in
1994, he and the deceased did not discuss what would happen about the
property. He continued
to pay her money towards the property until
his employment with Firestone ceased in 1996. He did not tell her
that he could no
longer pay, because he had erased her telephone
number, although he knew where she lived and worked. He was confused
because he
had lost his employment and he decided to go home.
DISCUSSION
[27] Ngqumetyana and the plaintiff
impressed me as honest witnesses. The thrust of their evidence was
that Beja’s co-ownership
of the property was a shock and a
surprise because they did not know him and the deceased had not
discussed Beja’s involvement
in the purchase of the property
with them. Neither of them could testify directly about the
circumstances of the purchase of the
property but it was clear that
they honestly believed that the deceased had paid for the property.
They did not attempt to fabricate
evidence to support the plaintiff’s
case, and the plaintiff in particular displayed no bias whatsoever
against Beja. She
seemed not to understand fully why she was in court
but in my view that did not reflect adversely on her honesty.
[28] Beja was not an altogether
satisfactory witness. At times he failed to answer a question
directly and it had to be repeated.
His evidence was also confusing
and contradictory. Although he said he did not know that Gough Cooper
had to be paid, he accepted
that Gough Cooper had been paid by the
bank. He said that he and the deceased had gone to the bank, but
denied that he had ever
borrowed money from the bank. Ngqumetyana’s
evidence that Beja had initially agreed to transfer his share of the
property
was not challenged in cross-examination, and it was also put
to Ngqumetyana that Beja would deny mentioning R20 000.00 at the
attorneys’
offices, whereas it was Beja’s own evidence
that he did mention that sum. On the other hand he was adamant that
he and the
deceased had intended to purchase the property together
and that there was no mention of a suretyship.
[29] The only evidence on the part of
the plaintiff which shed any light on Beja’s involvement in the
purchase of the property
was that of Ngqumetyana, when he referred to
what the deceased’s sister had told them. This was hearsay
evidence but it was
not objected to. The evidence of Ngqumetyana and
the plaintiff did not support some of the allegations in the
particulars of claim,
namely that the deceased was advised to find a
surety, that Beja undertook to be a surety and co-principal debtor,
and that owing
to an error on the part of NBS or the conveyancing
attorneys, he became the registered co-owner. I understand the
difficulty the
plaintiff had in proving these allegations, because
events took place some twenty two years ago, and the evidence of the
deceased
was not available.
[30] Beja’s evidence was a
little more consistent with his pleadings, but he clearly had no idea
why his blood was drawn or
why he was weighed, and did not understand
the purpose of a loan to pay the seller and a purchaser’s
obligation then to pay
the bank which lent the money. Yet it was
pleaded on his behalf that he went to the doctor for the purpose of
obtaining insurance
and that he and the deceased had been assisted by
Gough Cooper in applying for a loan.
[31] It was submitted on behalf of the
plaintiff that the evidence proved that Beja never intended to take
transfer of the property
and reference was made to the judgment in
Legator McKenna Inc and another v Shea and Others
2010 (1) SA
35
(SCA), specifically the abstract theory regarding the passing of
ownership.
[32] One must consider the evidence as
a whole and the probabilities. It is a fact that the property was
registered in the names
of the deceased and Beja. In order for that
to happen, there must have been a written sale agreement as well as
the usual documentation
signed for the purposes of registration of
the transfer and the bond. It is in my view improbable that all these
documents would
have been prepared in error, and that Beja should
rather have signed a deed of suretyship. It was not part of the
plaintiff’s
case that Beja acquired ownership by fraud or
duress committed against the deceased. The case is that he acquired
ownership as
a result of a mistake on the part of NBS or the
attorneys, and that his true intention, namely to be a surety, was
not given effect
to. The fact that all the necessary documentation
must have been prepared for signature by the deceased and Beja, means
that Gough
Cooper and NBS must have accepted that the deceased and
Beja were purchasing the property jointly. There must have been
communication
between the deceased and Beja on the one hand, and
Gough Cooper and NBS on the other hand, which precipitated the
drawing up of
the documents.
[33] The combining of their salaries,
which was Beja’s evidence as well as what the deceased told her
sister, is more consistent
with the deceased and Beja being joint
purchasers. If the deceased’s income was insufficient to
qualify for a loan from NBS,
it meant that they were of the view that
she could not afford the instalments. A suretyship would not have
solved that problem,
but joint salaries would have. Beja’s
evidence that he and the deceased went together to Gough Cooper and
to the attorneys
was not disputed, and indeed it is probable that
they did so, in order to sign the necessary documents. If Beja had
intended merely
to be a surety, it is improbable he would have gone
to view the property when it was completed and signed a “happy
letter”.
I do not think he could have fabricated this evidence.
If he did not intend to purchase, it is unlikely that he would have
known
what a “happy letter” was.
[34] The affidavit purporting to be
that of the deceased was, as I understand the Rule 37 minute, not
admitted as the truth of its
contents. In any event Beja disputed
that he had been asked to be a surety. He also denied signing the
affidavit allegedly made
by him. The signature on the affidavit was
very different from his signature on the documents which he admitted
signing at the
Master’s office. In my view therefore the
plaintiff did not prove that Beja had signed the affidavit.
[35] Beja’s evidence that he had
merely signed the documents at the Master’s office and had not
told the official that
he was the deceased’s brother was not
challenged. In my view his evidence in this regard was not inherently
improbable. There
was no evidence to prove that he already knew that
the plaintiff had been issued with a letter of authority and that he
therefore
acted fraudulently in obtaining a letter of authority. His
actions in obtaining a copy of the deceased’s identity document
and death certificate and going to the Master’s office
demonstrate in my view that he was genuinely trying to protect his
rights in the property.
[36] I am however of the view that
Beja’s account of a romantic relationship with the deceased was
improbable. It was not
disputed that the plaintiff and Mthetheleli
lived with the deceased both at Kwazekhele and at the property from
1990. Yet Beja
simply said he had not lived with the deceased’s
children. If he had lived with the deceased at the property for three
months,
he would definitely have met her children. The improbability
of his evidence is strengthened by his account of events which took
place thereafter. He moved to a shack without amenities, yet
continued his relationship with the deceased. After the relationship
ended he did not discuss with her what was to happen about the
property, and when he ceased making payments to her, did not inform
her. His reason for doing so, namely that he had erased her telephone
number, was most unconvincing.
[37] His evidence of making payments
to the deceased was also suspect. When he was shown her June 2000
payslip, he said he had paid
her half of the amount which was
deducted, yet later in his evidence said he had stopped paying in
1996 when he stopped working.
[38] The fact that he only took some
action about the property when he met with the deceased’s
family, indicates that in the
intervening period he had no intention
of exercising his right as a co-owner, and only regarded himself as
an owner when he was
asked to relinquish his ownership. These various
aspects of the evidence go some way in showing that he did not intend
to acquire
ownership.
[39] If it is improbable that NBS and
the attorneys made a mistake about the intentions of the deceased and
Beja, how did he end
up as a co-owner? Beja and the deceased were
obviously not strangers to one another. There must have been at least
a friendship
between them for them to combine their salaries, sign
documents together, view the property together, and sign a “happy
letter”.
Given these facts, it is not improbable that there was
an agreement between them to purchase the property jointly. I cannot
see
in what other capacity Beja signed the documents and acquired
ownership. If he thereafter failed to honour whatever arrangement
there was between him and the deceased regarding repayment of the
loan which had been granted to them jointly, that failure might
be
grounds for a different action by the plaintiff on behalf of the
estate. Such a failure would explain his lack of interest in
the
property over the years.
[40] I am of the view that the
evidence falls short of what the plaintiff is required to prove for
the purposes of the present action,
namely that Beja never intended
to become an owner and to take transfer. Despite the improbabilities
of his evidence to which I
have referred and the inferences to be
drawn from his attitude towards the property in the period between
the termination of his
alleged relationship with the deceased, and
his meeting with her family, I cannot disregard the evidence to which
I have referred
which supports the probability that he and the
deceased intended to purchase the property jointly. When one weighs
the competing
probabilities, I am not satisfied that the plaintiff
has discharged the onus on her to prove otherwise.
ORDER
[41] Absolution from the instance is
granted, with costs.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:-
For the Plaintiff:- Mr L Schoeman,
instructed by Boqwana Loon & Connellan Attorneys, Port Elizabeth.
For the Second Defendant:- Adv M
Marele, instructed by Lawrence Masiza Vorster Inc Attorneys, Port
Elizabeth