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[2021] ZAKZDHC 8
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Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION : DURBAN
CASE NO: 11764/2015
In the matter
between:
ROBERT STEVEN
TOMLINSON
FIRST APPLICANT
LALLITHA
TOMLINSON
SECOND APPLICANT
and
YOLANDA TOMLINSON
N.O.
FIRST RESPONDENT
THE MASTER OF THE
HIGH COURT, DURBAN
SECOND RESPONDENT
THE REGISTRAR OF
DEEDS FOR THE
PROVINCE OF
KWAZULU-NATAL
THIRD RESPONDENT
THE SHERIFF,
SCOTTBURGH
FOURTH RESPONDENT
ORDER
The following order
is granted: -
1.
It is declared
that the agreement concluded on 25 October 2013 between the late
Rachael Francis Tomlinson and the applicants for
the sale by the
former to the latter of a one-half share in Erf 110 Ifafa was valid
and binding when it was concluded, and remains
so, upon the
assumption that the signatures which purport to be those of the late
Rachael Francis Tomlinson on the written agreement
are found to be
her’s.
2.
The costs
incurred in these proceedings with regard to the issue dealt with in
paragraph 1 of this order are reserved for the court
finally
determining the application.
JUDGMENT
Delivered on:
Friday, 19 March 2021
OLSEN J
[1]
The applicants are married to each other in community of property.
The first
respondent is the first applicant’s sister. She is
cited in her representative capacity as executor of the estate of
their
late mother, Mrs Tomlinson. These proceedings also
involve the estate of the father of the first applicant and the first
respondent, Mr Tomlinson. Where I refer to Mr Tomlinson or Mrs
Tomlinson in this judgment I intend to refer to the parents
of the
first applicant and the first respondent.
[2]
Mr and Mrs Tomlinson were married in community of property.
When they were both
alive Mr and Mrs Tomlinson were the registered
owners of a property known as Erf 110 Ifafa (the “property”).
Mr Tomlinson died on 31 December 2012 bequeathing his one half
undivided share in the property to the first applicant and the first
applicant’s brother, Denzel. That half share was
transferred to the brothers in November 2014, leaving Mrs Tomlinson
the owner of the other undivided half share in the property.
[3]
In his founding affidavit the first applicant explains that his
mother was not gainfully
employed and was in need of financial
assistance from time to time. He provided it to her with loans
of money. Shortly
after his father’s death, Mrs Tomlinson
suggested to the first applicant that she sell her undivided half
share in the property
to the first applicant at a price equivalent to
the sum of the loans made to her from time to time, the price to be
discharged
by set-off. A written agreement to that effect was
concluded on 25 October 2013.
[4]
The issue as to when the liquidation and distribution account in Mr
Tomlinson’s
estate was confirmed has not being canvassed in the
papers. It seems probable, judging from the fact that the first
applicant
and his brother Denzel only received transfer of their
inheritance a year after October 2013, that when the agreement for
the sale
of Mrs Tomlinson’s undivided half share in the
property was concluded in October 2013 the joint estate was still
under the
administration of Mr Tomlinson’s executor.
[5]
According to the first applicant, his mother not only signed the sale
agreement referred
to above, but also the documents necessary to be
signed by her in order to effect transfer of her half share in the
property to
the first applicant. There was a hold up,
apparently connected with an expired rates clearance certificate,
which brought
about that by 20 October 2014, when Mrs Tomlinson died,
her undivided half share in the property had not yet been transferred
to
the applicants.
[6]
The first respondent was appointed executrix in the estate of her
mother on 9 February
2015.
[7]
The first respondent refused to accept the claim made by the
applicants to transfer
of the property as a result of which this
application was instituted in October 2015. The applicants seek
an order directing
the first respondent to do all things necessary in
her capacity as executrix to transfer the undivided half share of Mrs
Tomlinson
in the property to the applicants.
[8]
In April 2017 the application was referred for the hearing of oral
evidence on issues,
the extent of which suggests that in fact there
ought to have been a referral to trial. When the Judge President
called the roll
on which the matter appeared on 7 December 2020, the
first applicant was unable to attend to give evidence because he was
in Mozambique
and, as I understand the transcript of the proceedings
on that day, was unable to return because of the Covid pandemic.
An
application for an adjournment on that ground had been launched
some six weeks before 7 December 2020. At the suggestion of
Mr
Chetty
, who appears for the first respondent, the Judge
President adjourned the matter to the expedited roll with a view to
having one
of the issues which could be disposed of without evidence
decided separately and first. It was a question raised by the
first
respondent, as to whether the agreement between the applicants
and the late Mrs Tomlinson was one which complied with the provisions
of the Alienation of Land Act, 68 of 1981 (the “Act”).
That issue was argued before me on 22 February 2021.
The papers
were in something of a muddle, as a result of which I sought clarity
from the parties as to what was in issue in the
case, and as to the
grounds upon which it was contended that the agreement was not in
compliance with the Act. I was advised
by Mr
Chetty
that
there were three bases upon which the first respondent resists the
application. One was the issue to be argued before
me on that
day. The second is an issue as to whether Mrs Tomlinson had
indeed signed the agreement. (It is apparently
the intention of
the first respondent to lead a handwriting expert on this issue.)
The third issue arises because the first
respondent does not accept
that the purchase price of R445 000 had indeed been discharged.
[9]
As to this last issue I posed a question to Mr
Chetty
as to
the basis upon which the first respondent would advance the
proposition that the purchase price had not been paid, or that
the
applicants have to prove that it had been paid, if the court should
find that the late Mrs Tomlinson indeed signed the sale
agreement.
I asked the question because in the sale agreement the seller
acknowledges having received the price from the
purchaser. Mr
Chetty’s
response was to abandon that issue. I thought
it best in the circumstances to write out my understanding of the
issues in the case
and the positions adopted by the parties, and to
read that back to them for their confirmation, with a view to
settling exactly
what was left in this case. My summary, which
I set out immediately below, was confirmed by the parties.
‘
(a)
The court has to decide first whether the agreement complies with the
Alienation of Land Act, the
sole challenge being as to whether the
late Mrs Tomlinson needed the executor of her husband’s estate
to be a co-signatory
to the agreement between the applicants and her,
or whether indeed only the executor of her late husband’s
estate could sign
such an agreement. This issue has to be
decided on the assumption that the late Mrs Tomlinson did sign the
agreement.
(b)
If it is found that the agreement was not in compliance with the Act,
the application
must be dismissed. If the issue is decided in
favour of the applicants, a declaration of compliance with the Act
must be
made, and the further issue in the matter decided after the
court has heard oral evidence.
(c)
The sole issue to be decided by the court hearing the oral evidence
would be whether
the late Mrs Tomlinson signed the agreement.
If it is held that she did, the application must succeed. If it
is held
that she did not sign the agreement, the application must be
dismissed.’
[10]
The argument for the first respondent on the issue to be decided at
this stage proceeds along
the following lines.
(a)
Upon the death of a
spouse married in community of property the surviving spouse is not
immediately and automatically vested with
dominium of a half share in
any property belonging to the joint estate. She is restricted
to a right against the executor
to half the nett balance available in
the joint estate, which may eventually turn out to include a half
share in immovable property
due to the spouse by virtue of the
marriage in community of property, if the property is not sold to
discharge debts.
(b)
Until the estate is
finalised the only person with power to sell what the surviving
spouse might regard as her half share of immovable
property is the
executor.
(c)
If Mrs Tomlinson
purported to sell a half share as agent of the executor, the truth of
the matter is that she had no such authority.
(d)
Perhaps expanding on
(c) above it is contended that the agreement does not comply with the
Act “in that it has not been signed
by the owner or someone
authorised to sign on the owner’s behalf as seller”.
(I
will refer to these legs of the argument as “proposition (a)”,
“proposition (b)”, and so on.)
[11]
Proposition in (a) is correct. (See
Fischer v Ubomi Ushishi
Trading CC and Others
2019 (2) SA 117
(SCA), para 26.) The
position was put as follows in Corbett et al
The Law of Succession
in South
Africa 2nd ed (2001) at 15.
‘
And
where a man or woman who was married to his or her spouse in
community of property dies, the heirs of the predeceased spouse
do
not acquire co-ownership in individual assets of the joint estate,
but merely the right to claim from the executor half of the
nett
balance of the joint estate. Nor is a survivor, despite having
been during the lifetime of the predeceased spouse co-owner
of half
of the joint estate, vested with
dominium
of half of the assets. Like the heirs of the predeceased
spouse, the survivor is restricted to a right against the executor
to
half of the nett balance.’ (Footnote omitted)
The matter might be
put slightly differently. For the duration of the marriage the
survivor was a co-owner of the whole of
the joint estate; but for so
long as the marriage subsisted
,
the whole of the estate was
not just undivided but indivisible (the extraordinary remedy of
Boedelscheiding
and
s 20
of the
Matrimonial Property Act, 88
of 1984
aside).
[12]
Proposition (b) is not correct. It would be correct if it was
confined to the proposition
that until the estate is finalised, the
only person with power to dispose of property in the estate –
ie deliver it into
the ownership of someone else – is the
executor exercising his or her functions as such according to law.
It is that
power of disposal that the executor exercises when he or
she delivers property to heirs or, in the case of a marriage in
community
of property, to the surviving spouse as to the half share
due to that spouse by reason of the marriage in community of
property.
If it is necessary or proper, according to the laws
governing the winding-up of deceased estates, to sell property with a
view
to delivering it into the ownership of a third party, it is the
executor who has the power to do that.
[13]
Mr
Chetty
developed the first respondent’s argument on
proposition (b) with reference to certain dicta in
Booysen &
others v Booysen & others
2012 (2) SA 38
(GSJ). The
facts of that case are not perfectly clear to me. In simplified
form they appear to have been as follows.
Mr and Mrs
Booysen were married in community of property. They owned a
piece of immovable property. They had executed
a joint will in
terms of which the survivor would be the only heir of the first-dying
of them. Mrs Booysen died. At
a stage when the estate was
not yet finalised Mr Booysen concluded a written agreement in terms
of which he sold the immovable
property in question to one of his
children. (Mr Booysen himself then died a little later, but
that was of no consequence
in the case.) Two other Booysen
children then became the applicants who sought an order against the
child who had bought
the property from their father, setting aside as
invalid the agreement which had been concluded and interdicting the
executor from
registering transfer of the property to the child to
whom it had been sold by Mr Booysen. The court granted the
relief.
What is not clear from the judgment is whether the
application was launched because the child to whom the property had
been sold
was seeking to enforce it against the estate of the late
Mrs Booysen, which was still under the control of the executor of the
estate of Mrs Booysen. (One would think that this was the case,
because the interdict against the executor was sought.)
Neither
is it clear that in terms of the agreement between Mr Booysen and the
child to whom the property was sold, Mr Booysen purported
to convey a
right to that child to claim the property directly from the deceased
estate. It does seem clear that Mr Booysen
did not in terms of
the agreement purport to act as agent of the executor of his wife’s
estate.
[14]
Against that background Mr
Chetty’s
argument for
proposition (b) is based essentially on paragraph 12 of the judgment
in
Booysen
. That paragraph follows the learned judge’s
exposition of the principle which is Mr
Chetty’s
proposition (a). It reads as follows.
‘
From
the above, it is more than plain that the late Joseph Booysen, in the
present matter, did not gain ownership of the whole joint
estate upon
the death of his wife, Dora Booysen. He therefore had no legal
capacity to enter into the disputed sale agreement
with the first and
the second respondents regarding the immovable property. It was
the prerogative of the executor, the fourth
respondent, to do so.
The uncontroverted evidence is that the estate of the late Dora
Booysen is not finalised, and the first
and final liquidation and
distribution account has not been approved, for reasons advanced by
the executrix. The sale was
invalid ab initio and falls to be
set aside.’
[15]
Given the gaps in my knowledge of the precise terms of the agreement
under consideration in
Booysen
, I cannot comment on the
ultimate conclusion reached in that case. However if, as
appears to be the case, the learned judge
intended to convey that
solely because Mr Booysen had not yet acquired ownership of the
property he lacked the legal capacity to
conclude an agreement for
its sale, I cannot agree. The point of my departure from the
principle stated in paragraph 12 of
Booysen
is simply stated
in A J Kerr,
The Law of Sale and Lease
3 ed (2004) at
page 7.
‘
Those
new to the subject [the subject the learned author is speaking about
is the law of sale] are often surprised to learn that
someone else
can sell their, or anyone else’s, property. The tendency
is to assume that, apart from questions of agency,
only the owner of
a thing can sell it. This again overlooks the fact that in
entering into a contract one is undertaking
an obligation or
obligations, not doing what an obligation requires. So if A
sells B’s property to C the resultant
legal position is that A
is obliged to make B’s property available to C. He will
therefore attempt to obtain it.
If he succeeds, he can make it
available to C and the contract is performed. If B will not let
him have it, he (A) fails
to perform and is in breach of contract.
In such circumstances C has an action against A for damages for
breach of contract.
It is not so uncommon as may be thought for
someone to sell someone else’s property.’
[Footnotes omitted]
That proposition is
well established in our law, and the Act does not provide that the
sale of immovable property is an exception.
As to the continued
existence of the rule, and its applicability to immovable property,
see
Van Wyk v The MEC: Department of Local Government and Housing
of the Gauteng Provincial Government
(1026/2018)
[2019] ZASCA 149
(21 November 2019) at para 9:
‘
The high court held
‘[n]otwithstanding being satisfied that the execution of the
sale agreements was proven, for the seller
to be able to pass
transfer or
for
the sale agreement to constitute a valid sale, the seller should be
the owner or have been authorized by the owner to sell the
property’.
In that, it was plainly wrong. It is trite that it is not a
requirement for a valid contract of sale that the
seller must be the
owner of the thing sold. As it was put in
Köster
v Norval
:
[1]
‘
In
Alpha Trust (Edms) Bpk
v Van der Watt
1975 (3) SA 734
(A)
743H-744A, Botha JA summarized the legal position as follows:
“
Dit
is duidelik dat dit vir ‘n geldige koopkontrak volgens ons reg
geen vereiste is dat die verkoper van die koopsaak eienaar
daarvan
moet wees nie. Ofskoon dit die doel van die koopkontrak is dat die
koper eienaar van die verkoopte saak moet word, is die
verkoper egter
nie verplig om
die
koper eienaar daarvan te maak nie. Hy moet die koper slegs in besit
stel en hom teen
uitwinning
vrywaar. Dit beteken dat die verkoper daarvoor instaan dat niemand
met ‘n beter reg daartoe die koper wettiglik
van die verkoopte
saak sal ontneem nie, en dat hy, die verkoper, die koper in sy besit
van die saak sal beskerm”.
[2]
G
R J Hackwill,
Mackeurtan’s
Sale of Goods in South Africa
,
5
th
ed
states:
“
As
has been indicated elsewhere, although the parties to a contract of
sale usually contemplate a transfer of ownership in the thing
sold,
this is not an essential feature of the contract, and sales by
non-owners are quite permissible”. (p 23, para 3.1.1.)
“
The
delivery required of a seller is the delivery of undisturbed
possession (
vacua
possessio
) coupled
with the guarantee against eviction. It is not necessary that the
seller should pass the ownership, for the implied engagement
of the
seller is a warranty against eviction and not a warranty of title,
but he must divest himself of all his proprietary rights
in the thing
sold in favour of the purchaser.” (p 66, para 6.2)
(See
also De Wet & Van Wyk,
Kontraktereg en Handelsreg
, 5th ed,
vol 1 p 329)’.
[16]
At the time when she sold it
to the applicants in this case, Mrs Tomlinson was not the owner of
the half share in the property which
she sold to the applicants.
Dominium of what she regarded as her half share by reason of her
marriage in community of property
had not yet passed to her.
But, on the basis of the principle confirmed in
Van
Wyk
, that did not
render her agreement to sell the property to the applicants invalid
or void. The subject of the sale was described
in the agreement
as “a one-half (½) share in and to Erf 110 Ifafa, …”.
There is no doubt about
the half share the parties had in mind.
In his will Mr Tomlinson had left his half share in the property to
his sons, the
first applicant and Denzel. What remained was the
subject of the sale agreement concluded between Mrs Tomlinson and the
applicants.
[17]
Notwithstanding that the contract contained some clauses which were
not perfectly suitable given
the peculiar nature of the sale, what is
clear is that Mrs Tomlinson undertook to bring about the transfer of
the half share in
question from herself to the applicants. She
certainly did not purport either to act on behalf of the executor of
her husband’s
estate or to confer on the applicants a right to
make a claim against her husband’s estate.
[18]
What the applicants seek to do in this application is enforce their
claim for delivery against
the estate of Mrs Tomlinson, she having
died prior to passing transfer of a half share in the property to the
applicants.
It is not a defence raised by the executor of Mrs
Tomlinson’s estate that neither Mrs Tomlinson nor her estate
actually received
the half share from the estate of Mr Tomlinson.
(And if the position is that Mr Tomlinson’s estate is not yet
finalised,
there is no suggestion that it is not anticipated that a
half share in the property will pass to Mrs Tomlinson’s estate
by
virtue of her marriage in community of property to Mr Tomlinson.)
[19]
I conclude that the first respondent wrongly contends that the
contract between the late Mrs
Tomlinson and the applicants was
invalid.
[20]
As to proposition (c), it is correct that there is no evidence that
Mrs Tomlinson concluded the
sale agreement with the applicants on the
authority of the executor, but equally clear that she sold the
property as a principal,
and not as agent.
[21]
Proposition (d) is one I have already dealt with. There is no
requirement in our law that
a deed of sale of immovable property must
be signed by the owner or by someone authorised to sign on the
owner’s behalf as
seller.
[22]
I conclude, therefore that the point in issue must be decided in
favour of the applicants.
[23]
As to costs, after some debate counsel agreed that if the applicants
were successful on the issue
argued first, the costs incurred in
these separated proceedings should be reserved for decision by the
court finally determining
the application. There is no need for
me to canvas the issues discussed in argument prior to counsel
reaching this agreement.
In my view their decision is correct.
I make the
following order.
1.
It is declared
that the agreement concluded on 25 October 2013 between the late
Rachael Francis Tomlinson and the applicants for
the sale by the
former to the latter of a one-half share in Erf 110 Ifafa was valid
and binding when it was concluded, and remains
so, upon the
assumption that the signatures which purport to be those of the late
Rachael Francis Tomlinson on the written agreement
are found to be
her’s.
2.
The costs
incurred in these proceedings with regard to the issue dealt with in
paragraph 1 of this order are reserved for the court
finally
determining the application.
OLSEN
J
APPEARANCES
Date of
Hearing:
Monday, 22 February 2021
Date of
Judgment:
Friday, 19 March 2021
Applicants’
Counsel:
Mr S Morgan
Instructed
by:
Singh & Gharbaharan
Applicants’
Attorneys
1
st
Floor, Allybro Centre
Umzinto…KZN
(Ref:
Mr Singh/MP)
(Tel:
039 – 974 2525 / 974 1488)
(Email:
sglegal@scottburgh.co.za
)
c/o
S Ramrachiasingh & Associates
6
Stanhope Crescent
Westville
North…Durban
(Tel:
031 – 2062853)
First Respondent’s
Counsel:
Mr T Chetty
Instructed
by:
Theyagaraj Chetty Attorneys
Defendants’
Attorney
296
Randles Road
Sydenham
Durban…4091
(Ref:
Mr T Chetty)
(Tel:
031 – 2080527)
(Email:
theyagaraj@telkomsa.net)
[1]
Köster v Norval
[2015] ZASCA 185
;
[2015] JOL 34890
(SCA) para 4.
[2]
Loosely translated as: ‘It is clear that it is not a
requirement of our law for a contract of sale to be valid that the
seller must be the owner of the thing sold. Although it is the
purpose of the contract of sale that the purchaser will become
the
owner of the thing sold, the seller is not obliged to give ownership
thereof to the purchaser. He is only obliged to place
the purchaser
in possession and to warrant that he will not be evicted. This means
that the seller guarantees that no-one with
a stronger right thereto
will deprive the purchaser of the possession of the thing sold and
that the seller will protect the
purchaser’s possession of the
thing.’