About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 78
|
|
Jagjiban and Another v Niekerk and Others (1176/2012) [2012] ZAECPEHC 78 (23 October 2012)
9
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 1176/2012
Date heard: 13.9.2012
Date delivered:
23.10.2012
In the matter between:
DEVAN ARTHUR JAGJIBAN
................................................................
First
Applicant
ANGELA JO ANNE
JAGJIBAN
........................................................
Second
Applicant
vs
ROCHELLE RHODA NIEKERK
.........................................................
First
Respondent
ROCHELLE RHODA NIEKERK
N O
............................................
Second
Respondent
LEE NIEKERK
....................................................................................
Third
Respondent
TERRI NIEKERK
.............................................................................
Fourth
Respondent
THE MASTER, EASTERN
CAPE
PORT ELIZABETH
.............................................................................
Fifth
Respondent
JUDGMENT
TSHIKI J:
A) INTRODUCTION
[1] On 25 May 2001,
applicants entered into a written Agreement of Sale of immovable
property with the first respondent and the
deceased (whose estate is
represented by its executrix, the second respondent) as purchasers
and sellers respectively. In terms
of the said contract applicants
purchased certain immovable property (the property) being erf no
14348, Bethelsdorp which property
is known as erf no 14348,
Bethelsdorp, Port Elizabeth and is situated at no 37 Doreen Crescent,
Cleary Park, Port Elizabeth. The
third and fourth respondents who are
heirs to the deceased’s estate have been cited herein as the
interested parties.
[2] It is common cause
that the applicants, who are husband and wife respectively, were
related to the deceased who, during his
lifetime, was the cousin of
the first applicant. Applicants bought deceased’s property for
the reason that he was unable
to afford payment of the bond
repayments together with the other monies due to the municipality
which he owed in respect of the
property in question. After the Deed
of Sale was signed applicants moved to stay into the house and this
is confirmed by the contents
of the Deed of Sale whose clause 20
under special conditions reads:
“
20. SPECIAL
CONDITIONS
Mr and Mrs Niekerk waives all their
rights on the property mentioned in this Deed of Sale.
On making the first payment on the
above property, Mr and Mrs D Jagjiban become[s] the sole owners of
the above property.
We have agreed that the property will
remain in their name until transfer takes place at
Mr Jagjiban’s
request
.
Mr Jagjiban takes full responsibility
for all outstanding debt on the property namely:
Outstanding bond as per sheriff’s
repossession letter;
Outstanding rates and taxes; and
Outstanding electricity and water.”
[3] Indeed, pursuant to
the contents of the Deed of Sale applicants assumed possession and
occupation of the property.
[4] On 23 April 2010,
applicants instituted action proceedings in this Court against first
and second respondents as first and second
plaintiffs respectively
for the rectification of the payment terms as well as the purchase
price which in the main agreement is
reflected as R140 000.00
instead of R98 564.67 as well as the fact that applicants as
purchasers were to pay rates and
taxes, outstanding electricity and
water accounts on the said house by 25 May 2001. Although this action
was defended it was settled
on terms as contained in the Deed of
Settlement marked “D” signed by the parties which reads:
“
DEED OF
SETTLEMENT
WHEREAS the Plaintiffs initiated an
Action in the above Honourable Court against the Defendants for
specific performance in terms
of a Deed of Sale pertaining to the
purchase price of immovable property situated at 37 Doreen Crescent,
Hillside, Port Elizabeth.
WHEREAS the Defendants have indicated
that they no longer wish to defend the Action.
WHEREAS the parties have reached an
Agreement in relation to the transfer of the immovable property to
the Plaintiffs and all matters
incidental thereto.
NOW THEREFORE THE PARTIES AGREE AS
FOLLOWS:
The Defendants undertake, on
presentation, to sign all such documentation as may be necessary in
order to effect registration
of transfer of the immovable property
at 37 Doreen Crescent, Hillside, Port Elizabeth into the joint names
of the Plaintiffs.
On signature of the transfer
documents by the Defendants, the Plaintiffs shall pay an amount of
R6 670.00 to the Defendants
Attorneys of Record, McWilliams &
Elliott Incorporated of 83 Parliament Street, Central, Port
Elizabeth. The aforementioned
is in settlement of the amount paid to
the NMMM by the Defendants on behalf of the Plaintiffs.
Registration of transfer shall be
effected by the Plaintiffs’ Attorney of Record, at the expense
of the Plaintiffs. The
aforementioned transfer costs shall include
the cost relating to the cancellation of the Defendants’
mortgage bond on the
immovable property.
The parties shall each bear their own
legal costs in relation to the Action.
The parties acknowledge that this
Agreement is in full and final settlement of all or any claims the
other party may have against
the other arising out of the marriage
and any other relevant matters and there are no outstanding matters
which have not been
dealt with.”
[5] It is clear from the
Deed of Settlement aforesaid that on signature of the Deed of
Settlement applicants herein would have to
pay R6 670.00 to the
first and second defendant’s attorneys. It is further stated in
the Deed of Settlement that the
transfer costs to be paid by the
applicants (plaintiffs) to their attorneys of record shall include
costs relating to the cancellation
of respondents’
(defendants’) mortgage bond on the immovable property in issue.
The agreement was concluded by noting
that there were no outstanding
matters which the parties had not dealt with concerning the property
in issue.
B) ISSUES
[6] Respondents have
responded to applicants’ allegations and have raised,
inter
alia
, certain points
in limine
of note of which are:
[6.1] that the
application has not complied with section 97 of the Deeds Registry
Act 47 of 1937 in that no notice of the application
and order to be
sought has been made to the Registrar of Deeds;
[6.2] that the agreement
sought to be enforced was entered into on 25 May 2001 and therefore
the applicants’ cause of action
has prescribed.
[7] I may mention that
respondents have also raised the objection that applicants should
have lodged their claims against the deceased
estate no more than one
year after his death. Secondly that applicants should never have
instituted the application against the
first respondent in both her
personal and representative capacities. Thirdly, the provisions of
the
National Credit Act 34 of 2005
are applicable in these
proceedings but have not been invoked.
[8] During the argument
Mr P. Scott appeared for the applicants and Mr M. Mackay represented
the respondents.
C) REASONS FOR JUDGMENT
[9] I must say at this
stage that there is no substance in the points raised by respondents
in paragraph 7 above. Mr Mackay for
respondents could not be able to
support the contention by the respondents in this regard. The first
respondent was supposed to
have been cited in her personal capacity
as one of the purchasers of the property in issue. By the same parity
of reasoning, she,
as the appointed representative and executor of
her late husband’s estate should and has been correctly cited
in her representative
capacity. Respondents having advanced no
sufficient facts to support this contention, I need not say more on
this point because
there is no merit in the respondents’
objection in this regard. Equally there is no substance in
respondents’ contention
that the
National Credit Act applies
herein. Neither has any argument been advanced in support of that
contention. It also has no merit and cannot be sustained.
D) FAILURE TO COMPLY WITH
SECTION 97 OF THE DEEDS REGISTRY Act 47 of 1937
[10]
Section 97
(1) of
the
Deeds Registries Act 47 of 1937
provides:
“
97 NOTICE
TO REGISTRAR OF APPLICATION TO COURT
Before any application is made to the
Court for 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 thereon as he may deem desirable to make”.
[11] Subsection 2 of
section 97
has no relevance to the issue at hand. In my view,
applicants have complied with the subsection (1) above in that a
notice to the
registrar of Deeds to which the registrar has responded
has been made within the required period stipulated in subsection
(1).
The mere fact that the Act requires a notice of seven days
before the order is granted is designed to allow the registrar to
also
have site of and have regard to all the papers which the Court
has to consider, which should be inclusive of both applicants’
and respondents’. There would be no point in issuing such
notice at the inception of the case because the respondents’
papers would not have been filed in Court at that stage. In this case
a full set of papers to which the Registrar of Deeds has
responded
has been forwarded to the registrar. In any event, the above
provisions are directory and cannot be interpreted to be
peremptory
otherwise an absurdity would occur. The purpose is to ensure that
whenever there has to be an interference by the Court
in any matter
relating to the property registered in the Deeds office, the
Registrar of Deeds should be advised of the intended
order. (See
Ex
Parte
Sanders Et Uxor
2002
(5) SA 387
(C) at 390J-391A). Non compliance with the seven day
notice provision of section 97 (1) can even been condoned by the
Court. This
interpretation accords with the purpose of the provision,
namely to allow Registrars of Deeds an opportunity to submit a report
expressing their views on applications where relief is sought
envisaging “the alteration of registered documents” (See
Haviland Estates (Pty) Ltd and Another vs
Mc Master
1969 (2) SA 312
(A) at 319
(H)).
[12] I have already
indicated that in this case the provisions of
section 97
(1) of the
Deeds Registries Act have
been complied with and there has been no
prejudice to any of the parties herein.
C)
PRESCRIPTION ACT 68 OF
1969
[13] Section 12 (1) of
the Prescription Act 68 of 1969 (the Act) provides:
“
12 When
prescription begins to run
Subject to the provisions of
subsections (2), (3) and (4), prescription shall commence to run as
soon as the debt is due.”
[14] In the present case
we have to ascertain whether or not the debt has arisen and if so,
when. The Act does not define the term
debt but in the context of
section 10 (1) of the Act the term debt has a wide and general
meaning and includes an obligation to
do something or refrain from
doing something. (See
Electricity Supply Commission v Sterwarts
and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344F-G).
For prescription to commence running there has to be a debt
immediately claimable by the creditor or, stated in
another way, that
there has to be a debt in respect of which the debtor is under an
obligation to perform immediately. (See
Deloitte Haskins &
Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A) at 532H).
[15] In my view, in this
case, for prescription to commence running applicants must have paid
the full purchase price inclusive
of the conveyencer’s fees.
Section 20 (3) of the Special Conditions provides that “we have
agreed that the property
will remain in their name (seller’s
name) until transfer takes place at Mr Jagjiban’s request”.
In my view, this
means that once the purchasers have paid the price
as well as conveyencer’s fees they would have to request the
respondents
or their attorneys to effect transfer of the property to
their names. In this regard applicants shall have to trigger the
commencement
of the debt by first complying with all their
obligations, and thereafter request or demand that respondents or
sellers effect
registration of the property. The latter stage never
occurred in this case, yet this requirement forms part of the terms
of the
contract of sale.
[16] In addition, the
parties have again signed a document known as the Deed of Settlement
exhibit “D” which makes it
clearly that the applicants
had not yet paid the R6 670.00 to defendants’ attorneys at
the time of the signature of
that agreement which was signed on 2
August 2010. Up to that stage there had been no debt due and,
therefore, no prescription had
commenced to run. Therefore, the
argument by or on behalf of respondents that the debt has prescribed
does not hold water and therefore
has no substance.
[17] It follows,
therefore, that the special defences raised by the respondents cannot
succeed.
[18] On the merits the
respondents have not made out a case for consideration by the Court.
It seems to me that they have placed
their entire defence on the
points
in limine
which I have found to have no substance. The
facts of this case are clearly distinguishable from those of the case
of
Desai NO v Desai and Others
[1995] ZASCA 113
;
1996 (1) SA 141
(A) to
which I have also relied on for guidance. In that case prescription
had commenced and continued without interruption until
the expiry of
three years after the debt became due. This has not been the position
in the present case. Applicants herein paid
the sum of R6 670.00
to respondents’ attorneys on 19 October 2010 an act which
commenced the running of prescription.
However, when the applicants
filed this application the debt had not prescribed because three
years had not lapsed since the full
payment was made.
[19] Therefore, I grant
the order in terms of paragraphs 1-4 of the Notice of Motion as
amended. In view of the fact that no further
respondents have opposed
this application, I have deleted the entire portion of para 4 and
replaced it with the following:
“
4.
Respondents to pay costs of this application jointly and severally
the one paying the other to be absolved
”.
_________________________
PW TSHIKI
JUDGE OF THE HIGH
COURT
Counsel for the
applicants : Adv P Scott SC
Instructed by : Joyzel L
Obbes
Suite 203-207
AA House, 4 Rink Street
Central
PORT ELIZABETH
(Ref: Miss Obbes/hr)
Counsel for the
respondents : Mr M Mackay
Instructed by : Shaun
Masimla Attorneys
184 Standford Road
Korsten
PORT ELIZABETH
(Ref: Mr Masimla/avl)