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[2022] ZAECQBHC 51
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Gxabeka and Another v Rayi and Another; Gxabeka v Rayi and Another (3912/2021) [2022] ZAECQBHC 51 (16 September 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO. 3912/2021
NOT
REPORTABLE
In
the matter between:
THOZAMA
DORA GXABEKA
(In
her capacity as executor of
Estate
No. 0[...])
First Applicant
XOLISA
REGINALD HOKO
ID
NO. 7[...]
Second Applicant
and
ZUKISWA
VIVIAN RAYI
IDENTITY
NO. 6[...]
First Respondent
SIMO
RAYI
ID
NO. 5[...]
Second Respondent
CASE
NO. 444/2022
In
the matter between:
THOZAMA
DORA GXABEKA
(In
her capacity as executor of
Estate
No.
0[...])
Applicant
and
ZUKISWA
VIVIAN RAYI
IDENTITY
NO. 6[...]
First Respondent
SIMO
RAYI
ID
NO. 5[...]
Second
Respondent
JUDGMENT
HARTLE
J
[1]
The
applicant
[1]
brought two
applications in succession, the first one for a spoliation remedy,
and the second for a
mandamus
.
Both concern certain immovable property described as Erf 7[...]
P[...] V[...], in the municipality and administrative district
of
Port Elizabeth, situate at 1[...] A[...] Street, Bridgemeade, Port
Elizabeth (“the property”).
[2]
The respondents opposed both applications
which were argued simultaneously before me.
[3]
In both matters she acts in her official
capacity as the appointed executrix in the estate of her late nephew,
Michael Mtunzi Gxabeka
(“the deceased”). The
Master’s appointment letter in her favour is dated 7 December
2021.
[4]
The
property in question was ostensibly purchased by the deceased from
the respondents for an amount of R165 000.00 in terms
of a
written deed of sale dated 1 August 2003, ostensibly drawn by Harry
Lamprecht Attorneys of Gqeberha who, according to the
transfer
clause, were expected to attend to the conveyancing of the
transaction. It is common cause that registration of
transfer
was never effected.
[2]
[5]
It is further common cause, despite the
agreement stating that occupation would be given only on registration
of transfer, that
the deceased took occupation of the property in
December 2003 and lived in it with his mother, Mimi Monica Gxabeka,
until he died
on 11 February 2014. Subsequent to his death she
continued to reside in the property. She was initially
appointed executrix
of her son’s estate but evidently did not
take any formal steps to effect transfer of the property from the
respondents to
his estate either.
[6]
On
9 February 2021 the applicant’s sister also passed away. The
applicant was appointed as the master’s representative
of her
estate on 16 February 2021.
[3]
[7]
It appears that even before the formal
conclusion of the sale agreement referred to above the deceased
pre-paid the sum of R160 000.00
to the respondents comprising
two payments that were made to their home loan account on 9 May 2022
as reflected in a handwritten
receipt forming part of the papers.
In it the respondents, who signed the documentation in confirmation
of its contents,
record that “the whole amount” paid is
for the purchase of the property and that on the day of the payment
the “ultimate
transfer” of the property
was
still being processed
.
[8]
On
30 May 2005 the respondents’ mortgage bond over the property in
the sum of R113 000.00 was cancelled, probably as
a result of
the pre-payment by the deceased.
[4]
[9]
After her sister’s death the
applicant took control of the property.
[10]
It
stood vacant until 1 December 2021, from which date according to her
the second applicant and his family were given permission
to occupy
it, purportedly pursuant to a deed of sale concluded between her and
him.
[5]
She explained in
this regard that in the intervening period the property had been
burgled and water pipes had been stolen,
necessitating her giving the
second applicant early occupation pending transfer of the property to
him.
[11]
On
7 December 2021, she was officially appointed as executrix of the
deceased’s estate which confirmed her lawful authority
to be in
possession and control of the property but by then, the second
applicant and his family, as indicated above, were already
occupying
it at her behest.
[6]
[12]
She avers that on 16 December 2022, whilst
the second applicant and his family were in peaceful and undisturbed
possession of the
property (an allegation the second respondent
confirmed in his affidavit), the first respondent and her children
“stormed”
it, broke padlocks at the gate, forced their
way in and took up residence in the house. The second applicant
invoked the
assistance of the South African Police Service to
vindicate the situation, but to no avail. Despite the threat of
violence
to him and his family, the police adopted a hands-off
approach, claiming that they do not interfere in civil matters.
[13]
The respondents declared that they would
stay put in the property because it belonged to them. It
appears that they have remained
in occupation since.
[14]
The applicant revealed that after her
sister’s death the respondents had also tried their luck by
breaking into the property
and forcing themselves in, but she had
dealt with the situation at that time by changing the locks. In
anticipation that
this might happen again after placing a tenant in
the property, she caused a letter of demand to be addressed to the
respondents
(it is dated 2 December 2021) in which she informed them
unequivocally that the deceased had successfully bought the property
and
warned that they should refrain from trespassing on it or taking
the property by stealth. In the formal demand the respondents
were advised to approach a court should they purport to assert any
lawful claim to the property.
[15]
The demand was personally handed to the
respondents by the second applicant on 16 December 2021 when they
trespassed on the property,
but they ignored its contents and
continued to camp inside the house under the same roof as the second
applicant and his family
until he gave in to their threats of harm
lest he vacate. Ultimately they succeeded in the standoff.
The second applicant
and his family left the property under duress on
17 December 2021, leaving their movables behind.
[16]
The
applicant launched the spoliation application on the basis of urgency
the following day and the duty judge entertained the matter
on
Sunday, 19 December 2021. The respondents filed a notice to
oppose and were granted time to file answering affidavits.
These were filed late without any application for condonation.
It is unclear why the matter dragged on afterwards in one
of the
clearest cases where the possessory remedy was immediately warranted
to restore the
status
quo
ante
the illegal action. Even for a moment accepting the
respondents’ version that they had purportedly cancelled the
sale
to the deceased, they clearly took the law into their own hands
and indeed admitted the material allegations for a spoliation,
namely: (1) that the applicants were in possession and (2) that they
had deprived especially the second applicant of his possession
quite
evidently forcibly and wrongfully against the first applicant’s
consent.
[7]
[17]
Although a spoliation application serves a
unique purpose and decides no rights of ownership, the respondents
purported to make
out a case in the first respondent’s
answering affidavit filed in the spoliation application that the sale
of the property
to the deceased had been cancelled. This
version was repeated in the second application that was evidently
necessitated by
the respondents’ defence adopted in the
spoliation application. In the second application the applicant
claims that the estate
is entitled to take transfer of the property
by virtue of its purchase by the deceased in terms of a valid deed of
sale prior to
his death and that the respondents must be compelled to
get on with it, sign the documents, and take the necessary steps to
complete
the transfer.
[18]
The respondents aver that some dispute
arose concerning the transaction between the deceased and themselves
and that they had increased
the purchase price to R185 000.00
with the sale of additional items to him. However, no written
variation of the deed
of sale was proffered in support of this
allegation despite a non-variation clause in the deed of sale.
[19]
They concede having given him occupation
(this despite the claimed “dispute”) pending transfer
“with occupational
rental applicable”, although they did
not (in the spoliation application) aver what amount. The
agreement itself does
not provide for any payment in this respect.
(In the second application the first respondent claimed that it was
R500.00
a month.)
[20]
According to them the deceased struggled to
pay transfer costs (no detail was given concerning when and how
demand for such costs
was made) and also fell into arrears with the
occupational rental. (The extent of the arrears was never
suggested.)
[21]
They assert that this led in 2005 to them
dispatching a letter of demand to the deceased placing him on terms
with a subsequent
cancellation of the deed of sale.
[22]
The demand put up in support of this
averment however in no form or manner records a cancellation or any
invocation of the sale
agreement’s breach provisions. To
the contrary the letter, on the face of it dated 15 August 2005,
merely informs the
deceased of the respondents’ decision
(“again”) that they “are no longer selling the
house to him”.
(As an aside they had by then had the
benefit of him paying off their bond and were evidently no longer
inclined to proceed with
the transaction, but that was no lawful
ground to cancel.)
[23]
The first respondent alleged that they
agreed with the deceased to settle their claimed dispute “out
of (court)” but
in the process he passed away.
Purportedly after his death they sought to “engage” with
his mother, but she too
supposedly refused although they made
attempts to pay back the purchase price. The first respondent
suggests that the negotiations
were unsuccessful because they wanted
to pay the purchase price “short of the amount due (by the
deceased) to the local municipality
for rates and taxes”.
This however runs contrary to their answering affidavit filed in the
second application in which
they purport to rely on the breach clause
by asserting an entitlement to retain
all
the monies received as damages for the breach.
[24]
Concerning their opposition to the merits
of the spoliation application the respondents purported to justify
why and how it happened
that they “took possession of the
property” around August 2021. Notably the first
respondent did not in her answering
affidavit assert pertinently that
they repossessed the property because they are its lawful owners.
To the contrary, one
gets the distinct impression that they were
making capital of the fact that the property is still registered in
their name, giving
credence to the applicant’s surmise that
they were being opportunistic in the whole scheme of things by this
happenstance.
[25]
Although the respondents claim that the
property was vacant when they took possession of it, this was
superceded - according to
the applicant’s unchallenged
testimony in this respect, by her having changed the locks in
November 2021. Still the
respondents maintain that on 4
December 2021 they returned from their son’s
U[...]
and found the property, which they claim they rather than the second
applicant were in undisturbed possession of, “burglarized”.
They purportedly laid a criminal complaint with the police although
concerning what offence and against whom this cannot be discerned
from Annexure “ZVR 6” put up by them in support of this
allegation. Even though the criminal complaint may well
have
caused the second applicant to beat a hasty retreat from the property
with his family, this does not trump the applicant’s
claim that
the second applicant and his family had taken occupation of the house
and moved in with their furniture by 1 December
2021.
[26]
It
is clear that by this date the applicant had been entitled to take
control of the deceased’s estate
[8]
and cannot be faulted for having responsibly placed a tenant in the
house to avoid any further “burglaries” or vandalism.
[27]
The respondents’ claim that they had
merely slipped out for the weekend for their son’s
U[...]
(as if to suggest that they were
instead in occupation of the property at the date when the second
applicant moved in) rings hollow
against the applicant’s
unchallenged claim that the spoliation only happened on 16 December
2021 when the first respondent
arrived to oust the second applicant
and his family from the property. The latter date is the critical
date for present purposes.
[28]
That the second applicant was well settled
in the house by then is co-incidentally confirmed in the
supplementary affidavit of the
first respondent’s brother,
Sizinzo Xego, which the respondents sought leave to introduce late
after filing their answering
affidavits. Although the obvious
objective of the affidavit was to point out that the second applicant
no longer had any
quarrel with the respondents for unceremoniously
putting him and his family out, the reasons stated for such an
impression gleaned
by Mr. Xego confirms the applicant’s version
that (by and through her authority) the second applicant had in fact
been in
possession of the property
at the relevant time. Indeed, in this respect Mr. Xego asserted
that the second applicant had “found alternative accommodation
and (had) arranged to move all of his possessions on the premises to
his new place of abode”. He further states that:
“
Whilst I was
there, a truck arrived, and the Second Respondent (together with some
helpers) started to load his possession on the
truck and onto his
bakkie.”
[29]
Further he confirms that the second
applicant had cancelled his offer to
purchase
the property from the first applicant and had already set in motion
an application to buy another property. Implicit in this
is the
suggestion that when he took occupation of the property on 1 December
2021, he did so in the contemplation of enjoying occupation
inter
alia
and quite evidently was in
de
facto
possession of the property at the time of being despoiled.
[30]
I am accordingly satisfied that the
applicant (and the second applicant until he fell out of the picture)
met the requirements for
the spoliation remedy and indeed it is
unthinkable to my mind that the respondents have been permitted to
ply their machinations
in this respect over a period of some eight
months now taking serious advantage of the delay in the hearing of
the spoliation application.
[31]
With regard to the second application, also
brought by the applicant in her official capacity as executrix,
although she asks in
the notice of motion for the court to order the
transfer of the property “in her name”, it is plain that
she prays
for such relief in her official capacity.
[32]
I am satisfied that the respondents’
opposition to this application too raises no real dispute to the true
facts that the
deceased acquired the property by purchasing it from
them in terms of the deed of sale. The admitted agreement (in
respect
of the stated purchase price) has not been cancelled nor
varied in writing. Whatever difference of opinion there is
concerning
the R5 000.00 discrepancy on the purchase price that
remains possibly unpaid still, the applicant in terms of the valid
agreement
of sale will only be obliged to pay this “in cash on
date of registration of transfer”.
[33]
The
payment of transfer costs too will only require to be made when a
conveyancer is instructed to finally pass transfer and these
estimated costs are called for.
[9]
The applicant has in any event tendered to pay what is necessary to
effect transfer into the name of the estate.
[34]
The respondents’ opposition to the
second application is quite patently absurd and does not raise a
genuine dispute of fact.
There is no variation of the agreement
of sale in their favour regarding an increased purchase price, no
evident breach of the
agreement, and no proof of cancellation or
restitution made of the R160 000.00 that was paid to cancel the
respondents’
mortgage bond loan. The impugned sale
agreement appears on the face of it to be valid and binding. If
it was cancelled
as claimed in 2005, it is highly unlikely that the
deceased and his mother would have continued to reside in the
property (free
of charge on the respondents’ version) for some
nineteen years. At most the 2005 letter put up by the
respondents confirms
that after the cancellation of their bond they
were having second thoughts about parting ways with the property
and/or were trying
to re-negotiate the terms of the sale to possibly
extract more by way of a purchase price. (This co-incidentally fits
in seamlessly
with the applicant’s complaint that they were
dragging their heels in giving transfer.) In any event the
first respondent
says that the purported actual cancellation was
never communicated to the deceased because they learnt that he had
passed on.
[35]
Quite evidently however the deceased was
not in breach of the sale agreement settled between him and the
respondents on 1 August
2003. Certainly, this does not suggest
itself from the 2005 letter put up by the respondents in an attempt
to resile from
it.
[36]
I am satisfied that the applicant had made
out a case for the
mandamus
relief
prayed for in her official capacity, and that it is essential that
such an order be granted to ensure the proper administration
of the
deceased estate without further delay. I am however not
inclined to include the wide relief indicated in prayers 3,
4 and 5
of the notice of motion in the absence of any factual basis
therefor. It follows in any event that the respondents
must
give effect to the first sale.
[37]
Prior to concluding, the respondents raised
certain preliminary objections to both applications. The first,
in the spoliation
application, is that the applicant ought to have
complied with the provisions of Uniform Rule 6 (9) by serving the
application
papers on the Master.
[38]
The second is that First National Bank as
the mortgagee of the property ought to have been joined as an
interested party.
[39]
The third point is that the applicant ought
reasonably to have anticipated that there would be glaring disputes
of fact, which would
render the matter incapable of determination by
way of affidavit without resort to “some form of oral
evidence”.
[40]
The
fourth point is some form of criticism that the applicant sought to
obtain the relief prayed for in the notice of motion (described
as a
hybrid of an interdict although disguised as a
mandament
van spolie
)
[10]
on an
ex
parte
basis in breach of the uniform rules of court, although which rules
the applicant purportedly breached were not stated.
[41]
In the second application the dispute of
fact specter was held up again as a reason to dismiss the application
outright.
[42]
It was also submitted that the applicant
had no
locus standi
.
The latter objection seems to have been premised on the supposition
that the applicant was asking for an order that transfer
of the
property be given in her name, but it is abundantly plain from the
fact that she moved the application on behalf of the
estate in her
official capacity and that this was a mere oversight.
[43]
Concerning the anticipated dispute of fact
raised, it is ironic in my view for the respondents to have insisted
on a preliminary
basis that there is a dispute of fact before
revealing (in respect of the merits) what that dispute was. As
it turned out,
however, I find no real dispute of fact in either
application for the reasons indicated above.
[44]
The plea of the lack of joinder of First
National Bank was abandoned, quite properly so. It was
mischievous for the respondents
to have taken it in the first place,
in the knowledge that it was the pre-payment of the deceased in the
sum of R160 000.00
that in effect cancelled their bond over the
property.
[45]
As
for the lack of citing the Master, the applicant was authorized by
letters of appointment to take charge of the estate and was/is
doing
what an executor is supposed to do.
[11]
I do not agree that either application warranted a report from
the Master on the basis contemplated in Uniform Rule 6 (9).
[46]
There is accordingly no merit in any of the
formal objections raised.
[47]
In the result I issue the following order:
In case no.
3912/2021:
1.
possession of the property situate at Erf
7[...] P[...] V[...] is to be restored to the first applicant in her
official capacity
as executrix in the Estate Late Michael Mtunzi
Gxabeka (Estate No. 0[...]); and
2.
the respondents, jointly and severally, the
one paying the other to be absolved, are directed to pay the costs of
the application
including the costs of the appearances on 19, 21 and
22 December 2021.
In case no.
444/2022:
1.
The first and second respondents are
compelled to sign all the necessary transfer documents and to take
all the necessary steps
to cause the transfer to the Estate Late
Michael Mtuni Gxabeka (Estate No. 0[...]) (“The Estate”)
of the property known
as Erf 7[...] P[...] V[...], situated at 14
A[...] Street, Bridgemeade, Gqeberha (“the property”) at
the applicant’s
attorneys of record within five (5) days from
the date of the order.
2.
In the event that the first and second
respondents fail or refuse to sign the transfer documents in
paragraph 1 above, the third
respondent, Sheriff North, is authorized
to sign and take all the necessary steps, in the place of the first
and second respondents,
to effect transfer of the property into the
name of the Estate.
3.
The first and second respondents, jointly
and severally, the one paying the other to be absolved, are directed
to pay the costs
of the application.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
19
August 2022
DATE OF
JUDGMENT:
16 September 2022*
*Judgement
delivered by email to the parties on this date.
APPEARANCES
:
For
the applicants: Mr. MPG Notyawa instructed by Simpiwe
Jacobs & Associates, Gqeberha (ref. S Jacobs).
For
the respondenst : Mr. ME Menti instructed by N E Mbewana Attorneys
Inc., Gqeberha (ref. Rayi/000586/IM).
[1]
There were two applicants in the first application, but the second
applicant’s interest (initially as a tenant in occupation
of
the property at the time of the alleged spoliation) became moot
after he vacated under duress. Unless I refer to the
second
applicant specifically, any reference herein to the applicant is to
Ms. Gxabeka acting in her official capacity as executrix
in the
estate hereinafter referred to.
[2]
The applicant alleged that the respondents had refused to sign the
transfer documents to complete registration of transfer, an
allegation that was baldly denied by them.
[3]
The property is not listed among the assets referred to in her
section 18 (3) appointment letter, but since she continued to
reside
in the property after her son’s death without demur from
anyone, it is probable that it would have devolved on her,
if not by
the will of the deceased, then upon intestate succession.
[4]
The
most likely inference to be drawn is that the bond was cancelled as
a result of the deceased’s direct payment to the
respondents’
home loan account.
[5]
The purported sale would have preceded the applicant’s
appointment as executrix but I accept for present purposes that
she
was taking steps both to protect the property as claimed by her and
in anticipation of selling it out of the estate.
[6]
Section 26
of the
Administration of Estates Act, No. 66 of 1965
.
[7]
See
Erasmus, Superior Court Practice, D7 Mandamentum van Spolie at D7 –
6 where the requisites for a spoliation order are
set out, including
footnote 42 in which the author has collated all the case law
dealing with the requirements for the remedy.
In this instance
the applicants have in my view certainly established “possession
of a kind which warrants the protection
accorded to the remedy and
that (they) were unlawfully ousted”. Yeko v Qana
1973
(4) SA 735
(A) at 739.
[8]
See
section 26
of the
Administration of Estates Act.
[9]
The
applicant has indicated that her attorneys of record should be
mandated to attend to the conveyancing. I am satisfied
that
unless this control over the transfer is permitted (which request I
am inclined to accede to), that there may be cause for
further
delay.
[10]
The
parties seemed to be
ad
idem
that
the interdict relief claimed by the second applicant concerning the
threat to his person and property had become moot by
the time the
matters were argued before me.
[11]
See
section 26
(1) of the
Administration of Estates Act.