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[2024] ZAECMKHC 4
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B.N.M (Born M) v S.M and Others (2892/2022) [2024] ZAECMKHC 4 (10 January 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 2892/2022
In
the matter between:
B[…]
N[…] M[…] (Born M[…])
APPLICANT
and
S[…]
M[…]
FIRST
RESPONDENT
SQUIRE
SMITH & LAURIE INC
SECOND
RESPONDENT
REGISTRAR
OF DEEDS,
KING
WILLIAMS TOWN
THIRD
RESPONDENT
JUDGMENT
Rugunanan
J
[1]
This is an opposed application.
[2]
At the heart of the matter lies fixed
property described as Erf 7[...] East London, held by the first
respondent under title
deed number T18[…] endorsed by the
registrar of deeds in terms of section 45
bis
(1)
(a)
of
the
Deeds Registries Act 47 of 1937
.
[3]
The relief claimed by the applicant
straddles some three pages of her notice of motion. It is a sloppy
and inelegant piece of drafting
discordant with the description of
the Title Deed annexed to the founding affidavit (i.e. T18[…])
and mentioning instead
Title Deed number T19[…] which is
certainly not the subject of these proceedings. What can be
garnered from its nebulous
and bungling formulation – as
far as I am able to fathom and put into my own words – is that
the applicant essentially
seeks an order reviewing and setting aside
the decision by the third respondent:
3.1
to endorse Title Deed number T18[…] indicating that the first
respondent is entitled to deal
with Erf 7[…], East London
being property jointly held by the parties;
3.2
to register the Proprietary Agreement dated 8 July 2014 entered into
between the first respondent and
herself; and
3.3
to endorse Title Deed number T09[…] indicating the first
respondent as having acquired in terms
of
section 45
bis
of the
Deeds Registries Act 47 of 1937
the applicant’s half-share in
Erf 7[…], East London.
[4]
The applicant in addition seeks orders:
4.1
interdicting the first respondent from selling the property;
4.2
directing the third respondent to review and to set aside
inter
alia
3.1, 3.2 and 3.3 above; and
4.3
awarding her the costs of the application.
[5]
Of the three respondents cited in these
proceedings the relief claimed is targeted against the first
respondent and the third respondent
(the registrar of deeds). Save
for the first respondent (to whom I will hereinafter refer to as the
respondent), the remaining
respondents have made no appearance in
these proceedings.
Procedural context
[6]
The matter initially had its inception in
the High Court, Bhisho. A transfer to this Court proceeded from a
point
in limine
taken by the respondent that the former Court did not have
jurisdiction to hear the matter.
[7]
During argument in this Court the
respondent persisted with two additional points
in
limine
, namely,
(a)
that the notice of motion and founding
affidavit were not formulated as an application for the review and
setting aside of an administrative
decision, and
(b)
that the applicant’s cause of action constituted a debt that
had become prescribed.
[8]
In relation to these issues it bears
mentioning at the outset that the prescription issue is not without
merit. I deal with this
below but for reasons to follow the argument
suggesting that no case is made out for advancing an administrative
review is unsustainable.
[9]
At the commencement of the proceedings the
applicant sought condonation for the delay of approximately 5 days in
filing her replying
affidavit. This was, quite sensibly, not opposed.
History
[10]
During 2009 the applicant and the
respondent celebrated their marriage in community of property. In
March 2013 they purchased the
fixed residential property known as Erf
7[…], East London (the property) in regard to which their
joint ownership was
reflected in Title Deed number T18[…]. The
second respondent acted as the transferring attorneys. On 17 April
2014 and in
the Regional Court, King Williams Town, their marriage
was dissolved and a decree of divorce incorporating a settlement
agreement
was granted (the divorce order). The settlement agreement
stipulated that the parties agreed that the property was to be sold
and
that any profit or loss acquired therefrom was to be shared
equally between them. On 8 July 2014 the applicant and the respondent
concluded what they style as a Proprietary Agreement (hereinafter
referred to as the agreement or the proprietary agreement depending
on the context).
[11]
Up to this stage of the factual narrative,
that much of the preceding summary is common cause.
[12]
There
are however factual disputes between the parties’ versions and
more is said about this in the paragraphs that follow.
As with any
motion proceedings, to the extent that any facts are genuinely in
dispute, they must be resolved in favour of the respondent,
unless a
referral to oral evidence is sought.
[1]
It is perhaps opportune to point out that the applicant did not apply
for the respondent to be called for cross-examination under
rule
6(5)
(g)
of the Uniform Rules of Court.
[2]
She could have done so in which event the outcome may have been
different. It must therefore be assumed that in pressing for a
decision on the papers in the face of the material disputes of fact
dealt with below, the applicant by necessary implication assumed
the
risk of the matter being decided on the version presented by the
respondent.
The
in limine
issues and arguments
[13]
Adverting to the terminology in the notice
of motion the respondent contends in his answering affidavit that the
relief claimed
by the applicant is not competent since it is advanced
as a review in regard to which the founding affidavit does not meet
the
requirements for the review of administrative action under the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA), nor
have proper grounds been set out for reviewing the conduct of the
registrar of deeds.
[14]
If the application is indeed a review of
administrative action, he argues it would have to be dismissed.
[15]
The argument is misguided.
[16]
The applicant, in reply, pointedly relies
on
section 6
of the
Deeds Registries Act. The
section does not
provide for a review in the conventional sense. It provides for the
cancellation by a registrar – upon an
order of court – of
inter alia
a deed of transfer, a certificate of title, or other deed conferring
or conveying title to land. In resorting to the section the
applicant’s cause of action is that the agreement was entered
into in contravention of the divorce order and that she was
fraudulently misled by the respondent as to the purpose of the
agreement (as to which see later).
[17]
Despite the inaccurate choice of wording in
the notice of motion suggesting a review, I am satisfied that the
application is not
intended to be a review under the PAJA, but rather
it is primarily for the cancellation of the endorsements on Title
Deed numbers
T18[…]and T09[…] in favour of the
respondent.
[18]
Focus shifts to the prescription issue.
[19]
At the outset the founding affidavit read
with the annexures indicates that the case put forward by the
applicant is that the proprietary
agreement was fatally flawed. To be
specific, besides it being in direct contravention of the divorce
order it was tainted by the
respondent’s fraudulent
misrepresentation.
[20]
In
heads of argument the respondent submits that the applicant’s
cause of action (or claim) being as it is, a claim founded
on the
condictio
ob turpem vel iniustam causam
(which is a claim for transfer of money or property in terms of an
illegal agreement
[3]
) is a debt
for which the
Prescription Act 68 of 1969
lays down a prescriptive
period of three years.
[4]
[21]
The
claim falls in the realm of contract law.
[5]
[22]
In
argument reference was made to
Lydenburg
Voorspoed Ko-operasie v Els
[6]
where the court considered the date when prescription would commence
to run in the case where a party entered into an invalid contract.
The court concluded
[7]
that the
right of action by the plaintiff arose immediately upon the
conclusion of the invalid agreement.
[23]
On this approach the respondent’s
argument posits that the agreement to which the endorsement transfer
gave effect, was null
and void
ab initio
and any right of action arising as a result thereof arose immediately
upon the conclusion of the agreement on 8 July 2014 and has
since
become prescribed three years later.
[24]
The applicant’s version is that on
several occasions subsequent to the conclusion of the agreement she
requested the respondent
to make payment. During or about March 2018
when she approached her bank for a loan she learnt that the property
had
been transferred and registered in the name of the respondent. A
series of further requests for payment – all met with excuses
by the respondent and assurances that payment would be forthcoming –
culminated in a letter of demand sent by the applicant’s
attorneys to the respondent on 16 September 2020.
[25]
Although
the
Prescription Act provides
that the running of prescription may be
interrupted by a debtor’s acknowledgment of his
indebtedness
[8]
, the respondent
denies the applicant’s allegations of assurances by him to make
payment. While admitting that he received
the letter of 16 September
2023, he takes issue therewith.
[26]
He does so by averring that he approached
the applicant’s attorneys and presented them with the
proprietary agreement as proof
that there was no sale of the property
and hence no debt to acknowledge. Parenthetically, this aspect of the
respondent’s
version ought not to be seen in isolation from the
matrix in which the dispute of fact in the parties’ versions is
assessed
for determining whether the applicant is entitled to final
relief.
[27]
The applicant maintains that when she had
sight of the agreement in September 2020 she learnt for the first
time that the agreement
incorrectly records her consent that her
share of the property would be given to as opposed to being sold to
the respondent. She
apprehended that this did not accord with the
terms of the divorce order and that she had been misled by the
respondent to part
with her share in the property without receiving
payment.
[28]
It
is implicit in the nature of the
conditio
that
the illegality of the proprietary agreement arises by operation of
the law. The running of prescription from the date of the
agreement
is unaffected by the applicant’s factual circumstances
aforementioned from which she intends to demonstrate that
prescription has either been interrupted or delayed until she became
aware of the full extent of her rights, nor until she had
gathered
evidence enabling her to draw legal conclusions.
[9]
[29]
To sum up, an acceptance of the applicant’s
version would be tantamount to leaving the determination of the
prescription issue
entirely in her hands and against whom it would
otherwise be running.
[30]
This
is contrary to the nature of the
conditio
and the rationale of the
Prescription Act.
[10
]
[31]
If I were wrong in my conclusion on
prescription – the outcome of the matter, as will be seen from
what follows below, is
determined essentially on the version advanced
by the respondent. In that regard I intend to say only what is
considered absolutely
necessary to support my concluding order.
Resolution of factual
disputes
[32]
In
National
Director of Public Prosecutions v Zuma
[11]
Harms DP observed that motion proceedings were designed for the
resolution of legal disputes based on common cause facts.
[12]
If a party has recourse to motion proceedings it is trite that the
determination of the facts to which the court will have regard
is
exercised in accordance with the
Plascon-Evans
rule. Under the rule, where disputes of fact arise on the affidavits,
it is well established that final relief can be granted only
if the
facts averred in the applicant’s affidavits, which have been
admitted by the respondent, together with the facts alleged
by the
latter, justify such relief.
[33]
The general approach, therefore, in motion
proceedings in which final relief is sought, is that factual disputes
are resolved on
the papers by way of an acceptance of those facts put
up by an applicant that are either common cause or not denied as well
as
those facts put up by the respondent that are in dispute. It may
be different if the denial by a respondent of a fact alleged by
an
applicant does not raise a real, genuine or
bona
fide
dispute of fact for example,
‘
if
the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers’.
[13]
[34]
The
adequacy of a respondent’s denial for purposes of determining
whether a real, genuine or
bona
fide
dispute of fact arises was considered in
Wightman
t/a JW Construction v Headfour (Pty) Ltd & Another.
[14]
There it is stated that a real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise it has in his affidavit seriously
and
unambiguously addressed the fact said to be disputed. A bare denial
may suffice, but may not be sufficient if the fact averred
lies
purely within the knowledge of the disputant and no basis is laid for
disputing the accuracy or veracity of the averment.
[15]
[35]
The factual dispute in the parties’
versions is manifest in the circumstances in the conclusion of the
agreement and its intended
purpose.
[36]
According to the applicant, the
respondent remained in occupation of the property after the divorce.
It became apparent to her that
he had no intention of vacating when
he proposed to purchase her half-share in the property at fair market
value. Since she was
a single mother with a minor child and in need
of cash, she agreed to this proposal which she believed was
incorporated in the
proprietary agreement that she signed on 8 July
2014 in his presence at the offices of the second respondent.
[37]
She avers that the agreement was signed in
haste, that it was not explained to her and that she was never given
a copy thereof.
On a number of occasions in the period that followed
she requested the respondent to make payment in accordance with the
agreement
but was met with a mix of excuses and assurances. When she
approached her bank in March 2018 for financial assistance she learnt
that her share in the property was transferred and registered in the
name of the respondent in March 2015.
[38]
During September 2020 and upon receipt of a
copy of the proprietary agreement, it became apparent that she
gave/donated her share
of the property to the respondent and that
this was contrary to the divorce settlement, absent a variation
thereof. She then realised
that she was misled by the respondent into
believing that she sold her share to him (in accordance with his
proposal). This lies
at the heart of the argument that the respondent
perpetrated a fraudulent misrepresentation.
[39]
According
to the respondent, the registration of the applicant’s share of
the property in his name and its transfer achieved
exactly what the
parties intended in the proprietary agreement. He denies any
allegation of having misled the applicant in his
interaction with her
leading to the conclusion of the agreement. He denies that there was
a sale to him of the applicant’s
share in the property because
he did not have the means to acquire it. He maintains that the
proprietary agreement was a novation
of the settlement agreement on
divorce and that it had the effect of entitling him to take transfer
of the property without the
necessity to apply to court to vary the
divorce settlement/order.
[16]
[40]
The further detail in the respondent’s
version is that subsequent to the divorce the applicant orally agreed
that he would
keep the property and that her share would be
transferred to him at no cost. This arrangement arose against the
circumstance that
he gave the applicant the option of taking over his
share of the property provided that she assumed full responsibility
for servicing
the outstanding bond. She refused this proposal stating
that she did not want the property nor did she wish to be saddled
with
bond payments or bond cancellation costs.
[41]
Accordingly, the intended purpose of the
proprietary agreement was that he would continue servicing the bond
and the applicant would
effectively be released from her obligations
under the bond. According to the respondent, the applicant was happy
with this arrangement
and knew well what the agreement that she
signed on 8 July 2014 did contemplate. At the time of signing it both
he and the applicant
knew of the purpose of the meeting at the second
respondent’s offices and they confirmed that they had knowledge
of what
they were about to sign. Upon signature of the agreement each
of them were handed copies thereof.
[42]
In summing up, the version put up by the
respondent does not lend support for the applicant’s assertions
that she was fraudulently
misled in the progression of events that
led to the conclusion of the proprietary agreement. Her contention
that the agreement
was fatally flawed cannot be upheld.
[43]
And
so, on the version of the respondent, I am prompted to find that the
applicant intended for her share in the property to be
transferred to
him without there being a sale, and that the registrar of deeds
merely gave effect to the parties’ agreement.
Where it is shown
that the agreement is untainted, that it stands as valid, and that
the applicant’s consent has not been
vitiated by fraud, the
(clerical) errors in the documentation supplied by the respondent to
the registrar of deeds (and which are
annexed to the founding papers)
are inconsequential and do not support the applicant’s case for
the relief set out in her
notice of motion.
[17]
[44]
Having
resorted to the principles applicable to disputes in motion
proceedings I need go no further than say that the respondent
has
proffered positive contrary evidence
[18]
in support of his denials which are genuine and
bona
fide
on material matters. This precludes the applicant from succeeding in
the face of an opposing version that is neither fictitious
nor
palpably implausible or untenable.
[45]
In the circumstances, I make the following
order:
1.
The late filing of the applicant’s
replying affidavit is condoned.
2.
The application is dismissed.
3.
The applicant shall pay the costs of the
application.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
L.
S. Burger
Instructed
by
O’Reilly
& Associates
(Ref:
F O’Reilly)
Tel:
081 579 6594 or 083 255 9922
c/o
Mili Attorneys
Makhanda
For
the First Respondent:
K
L Watt
Instructed
by
Gordon
McCune Attorneys
(Ref:
G Williams)
Tel:
043 642 1519 or 072 514 8737
Date
heard:
12
October 2023
Date
delivered:
10
January 2024
[1]
Reddy v
Siemans Telecommunications (Pty) Ltd
2007
(2) SA 486
(SCA).
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C.
[3]
du Bois
Wille’s
Principles of South African Law
(9
th
ed) (Juta) p1064.
[4]
Section 11(
d
)
of the
Prescription Act 68 of 1969
.
[5]
du Bois Ibid.
[6]
1966 (3) SA 34 (T).
[7]
At 37E.
[8]
Section 14.
[9]
Claasen
v Bester
[2011] ZASCA 197
para 13;
2012 (2) SA 404
(SCA) para 13.
[10]
See generally
Mike
Sellick Trust (Pty) Ltd v Ethekwini Municipality
[2014] ZAKZDHC 33 para 18.
[11]
National
Director of Public Prosecutions
v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[12]
See also
Mthizana-Base
and Others v Maxhwele and Others
[2019] ZAECMHC 11 paras 5-9.
[13]
National
Director of Public Prosecutions
v
Zuma supra fn 9 para 26. See also
Mthizana-Base
and Others
ibid
paras 6-7.
[14]
Wightman
t/a JW Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 11-13.
[15]
Ibid para 13.
[16]
See
PL
v YL
2013
(6) SA 28
(ECG) para 6, where it is stated that ‘it is of
course always open to parties to abandon the judgment in whole or in
part
and to enter into a new agreement.’
[17]
Nedbank
v Mendelow
2013 (6) SA 130
(SCA) paras 12-14.
[18]
See
SKG
v Eskom Holdings SOC Ltd and Others
[2022] ZAECELLC para 71 and the cases referred in the footnotes
thereto.