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[2012] ZASCA 135
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Du Plooy and Another v Du Plooy and Others (417/11) [2012] ZASCA 135; [2012] 4 All SA 239 (SCA) (27 September 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 417/11
In the matter between:
Robert Mandlakayise Du
Plooy
..............................................................
First
Appellant
Victor Nkosinathi
Zikole
....................................................................
Second
Appellant
and
Ntombi Christophora Du
Plooy
..........................................................
First
Respondent
Mfanukhona Du Plooy
...................................................................
Second
Respondent
Malezi Du Plooy
.................................................................................
Third
Respondent
Thulisile Du Plooy
............................................................................
Fourth
Respondent
Delsie Du Plooy
...................................................................................
Fifth
Respondent
Tobhi Du Plooy
...................................................................................
Sixth
Respondent
Tandiwe Du Plooy
.........................................................................
Seventh
Respondent
Maria
Du Plooy
.................................................................................
Eighth
Respondent
Neutral
citation:
Robert Du Plooy v Ntombi Du Plooy
(417/11)
[2012] ZASCA 135
(27 September 2012)
Coram:
MTHIYANE
DP, HEHER, BOSIELO, PETSE JJA AND PLASKET AJA
Heard:
4
September 2012
Delivered: 27
September 2012
Summary: Ownership of
immovable property – whether first appellant owning property in
personal capacity or as nominee of siblings
(the respondents) –
nomination of first appellant established – transfer of
property – whether second appellant
had knowledge of challenge
to first appellant’s right to alienate property prior to
transfer
ORDER
On appeal from:
KwaZulu-Natal High Court, Durban (Ngwenya AJ sitting as court of
first instance):
(a) The appeal succeeds
to the extent that paragraphs 2 and 4 of the order of the court below
are set aside.
(b) The appellants are
directed, jointly and severally, to pay the costs of the respondents.
JUDGMENT
PLASKET AJA (MTHIYANE DP,
HEHER, BOSIELO and PETSE JJA concurring)
[1] This appeal concerns
a dispute between members of a family about the ownership of two
houses. It has spawned, according to the
papers, great enmity and
even violence and, whether or not the respondents are able to
establish co-ownership of the properties
with the first appellant,
the maxim
communio
est mater rixarum
–
co-ownership
is the mother of disputes – has, in this case, proved to be
pertinent.
1
The case also illustrates
the difficulties and uncertainties that can be created by a failure
to formalise and define legal relationships
with precision and care,
especially where they are intended to endure over generations.
[2] The respondents (the
applicants in the court below) applied to the KwaZulu-Natal High
Court, Durban (Ngwenya AJ) for orders
interdicting the first
appellant, (the first respondent in the court below) from
‘alienating, selling, disposing of or in
any way encumbering’
two properties in Emmaus, Pinetown upon which two four-roomed houses
had been built; in the event that
the transfer of one of the
properties to the second appellant (the second respondent in the
court below) had already taken place,
setting that transfer aside;
declaring that the respondents and the first appellant were co-owners
of the properties; and authorising
and directing the Registrar of
Deeds to register the properties in the names of the respondents and
the first appellant. Orders
in these terms plus a costs order against
the first and second appellants were granted by Ngwenya AJ. This
appeal against those
orders is before this court with his leave.
The facts
[3] The first appellant
and the respondents are siblings, born of George and Irene Du Plooy.
A tenth sibling, Raymond Du Plooy,
who played a part in the events
that I shall outline below, died in 1995. The family lived in a home
in Emmaus, Pinetown that was
owned by the Marianhill Mission
Institute – the MMI. The precise nature of their tenure is
unclear, but nothing turns on
this. George and Irene Du Plooy died
during the 1970s and their children continued to occupy the house. I
think that it would be
fair to describe the house as a family home in
the sense that even if some of the siblings had homes elsewhere, they
returned to
the house from time to time and regarded it as the hub of
their family.
[4] During the late 1980s
or early 1990s MMI decided to sell the land upon which the houses of
the Du Plooys and other families
stood. The area was rezoned for
industrial use and it proposed to sell the land for that purpose. MMI
wanted to relocate the families
to Umhlathuzana. Some families agreed
to be relocated but others, numbering 27 families, did not want to
move. They elected a committee,
chaired by one Fidelius Phewa, to
negotiate with MMI.
[5] The committee met
with representatives of MMI and the Pinetown municipality on five
occasions during the period 19 March 1990
to 3 May 1990. It was
agreed that plots in another part of Emmaus would be allocated to the
27 families, that MMI would build houses
on those plots and that the
beneficiaries would pay between R2 800.00 and R3 800.00 for a
house, not as a purchase price but
as a ‘token of
appreciation’.
[6] The Du Plooy family
was initially allocated two four-roomed houses some distance apart.
They were allocated two houses of this
size because their old house
was an eight-roomed house, and there were no houses of this size
available. The late Raymond Du Plooy
and one of his sisters, Ntombi
Du Plooy (the first respondent) spoke to a representative of MMI, one
Father Dieter, who then allocated
two adjacent erven to the Du Plooy
family. These are the erven at the heart of the dispute in this
matter, erf 17874 and erf 17875.
In due course, the committee under
the chairmanship of Mr Phewa handed over the keys of the houses to
Raymond Du Plooy, on behalf
of the Du Plooy family.
[7] During at least part
of this period, Robert Du Plooy, the first appellant, was not present
or involved. According to the respondents,
he had been ‘chased
away’ by their mother. If that is so, that would have been in
the 1970s, because she died in 1977.
According to Robert Du Plooy, he
left the area for a much shorter period. He went to Umkomaas to be
treated by an isangoma and
then he trained and qualified as an
isangoma himself. According to Ntombi Du Plooy, he only returned to
Emmaus in 1994, while he
stated in his affidavit that he left for
treatment in 1991 and returned in 1992. In his answering affidavit he
denies the averments
made by his sister concerning the allocation of
the houses and the handing over of the keys by stating that they are
‘highly
improbable’ and that he dealt personally with
Father Dieter who allocated the houses to him. This, however, if it
happened
at all, must have occurred much later, even on Robert Du
Plooy’s version. For reasons that will be dealt with below,
these
disputes of fact are resolved against him.
[8] In 1995 Raymond Du
Plooy died. It was decided, said Ntombi Du Plooy, that Robert Du
Plooy would be the family representative
and would hold the houses in
trust on their behalf. He denied that this was so and stated that
when he acquired
title to the properties
in 1996, he did so in his personal capacity and was hence entitled to
sell one of the properties, as he
did, to the second appellant. After
he had decided to sell erf 17874 to the second appellant, matters
took a turn for the worse.
He and the second appellant claim that
they were subjected to threats, harassment and assaults by some of
the respondents. He was
forced to flee from the home at one stage.
[9] As a result of the
disputes of fact on the papers, the matter was referred to oral
evidence. While the order making the referral
was not part of the
record, counsel appearing for both the appellants and the respondents
were prepared to accept the formulation
of the issue to be determined
by the oral evidence as being correctly encapsulated by the first
paragraph of Ngwenya AJ’s
judgment. He had stated:
‘
The crisp
question for consideration in this matter is to determine whether the
first respondent is the true owner of two immovable
properties, erf
number 17874 and erf number 17875, Township Pinetown Extension 113,
KwaZulu-Natal.’
While this formulation of
the issues is rather cryptic, essentially the dispute that the court
was required to resolve was whether,
when Robert Du Plooy acquired
title to the properties, he acquired ownership in his personal
capacity or on behalf of his siblings.
[10] Two witnesses
testified on behalf of the respondents. They were Fidelius Phewa and
Beatrice Malezi Mkhize (neé Du Plooy),
the third respondent.
The case of the first and second appellants was closed without any
evidence being led by them.
[11] Phewa testified
about the proposed relocation of the 27 families by MMI from one part
of Emmaus to another and the negotiations
between the committee he
chaired, MMI and the Pinetown municipality. He confirmed that the Du
Plooy family was one of the 27 families
that his committee
represented.
[12] He stated that the
negotiations resulted in an agreement that the 27 families would be
given new homes in Emmaus to occupy
– an area described
elsewhere in the record as New Emmaus – and that they would be
built in phases. He emphasised that
those houses ‘would not be
constructed for an individual, but they were going to be constructed
for all the 27 families’.
[13] During the planning
of the project, Father Bohmer of MMI had asked whether the homes
could be sold after they had been allocated.
Phewa said that the
committee’s response was in the negative and that ‘we
wanted those homes to belong to us for generations
to come’.
[14] When the houses were
built, the committee allocated them. Phewa’s evidence in this
regard was as follows:
‘
We as the
committee handed the keys to the people, and this is how we did it:
we would look at a family and determine who in the
family was going
to serve as the head of that family. But, most importantly, we would
determine the head of the family, not based
on the gender of whether
it was a male or a female. Our allocation of these houses was based
on the fact whether the person concerned
was originally occupying a
four-roomed house or an eight-roomed house, and if the person
concerned was occupying a four-roomed
house, we would allocate a
four-roomed house. Similarly, when the person had been occupying an
eight-roomed house, we would allocate
an eight-roomed house. The way
in which we conducted these allocations were based on families, not
individuals. If a family had
been occupying a four-roomed house, we
would allocate a four-roomed house to that family. Similarly, if that
family had been occupying
an eight-roomed house, we would allocate an
eight-roomed house. And in instances where an eight-roomed house was
not available,
we would allocate two four-roomed houses to make up
for the eight-roomed house. And the Du Plooy family had previously
occupied
an eight-roomed house, so they were allocated an
eight-roomed house.’
[15] As to the allocation
of the houses to the Du Plooy family, he stated:
‘
When the Du
Plooys then were given the accommodation, Robert was not there. The
Du Plooy family itself sent a young man who was
working for them, who
was their breadwinner; with agreement with them, we then gave the key
to Raymond Du Plooy. It was not up
to us to suggest that we were not
going to give Raymond the key because he was not the eldest, this was
based on the agreement
with the family. It was in 1991. Robert
returned in 1994 and he went to occupy the two four-roomed houses,
that is the eight-roomed
that had been allocated to the family. When
Robert returned, the Du Plooys were already living in the two
four-roomed houses. At
the time when these homes were being erected
and the people were being allocated, the registration of bonds was
not applicable
yet at that time. That only came about in the year
1996 and at the time Robert was already there. And at that time
Madoda Raymond
had passed away. Then it was up to the Du Plooy family
to nominate one amongst themselves as the person who was going to act
on
their behalf, not as the owner, but merely as the nominee in the
family.’
[16] He confirmed that
MMI required a nominal amount to be paid for each house; that the
amounts were R2 600.00 for a four-roomed
house and R3 800.00
for a bigger house; and that this was not regarded as a purchase
price but a ‘token of appreciation’.
In order to
facilitate the payments of these amounts, families were allowed five
years grace in which no interest would run. Phewa
testified that it
was then up to the individual families to decide for themselves ‘who
had the money and was able to buy
the property on behalf of the
families’.
[17] Provision was,
however, made for the ownership of the houses to pass. Phewa
testified in cross-examination that at the stage
when title deeds
were applied for the committee had fallen out of the picture. The
questions and answers that follow this read
as follows:
‘
So, each
person who purchased a property dealt directly with MMI? – No,
the family.
No, I’m saying, because when it
came to the purchase an agreement was signed by one person with MMI,
of purchase and sale?
– Yes, the person who had been nominated
by the family to represent them.’
[18] The upshot of the
evidence of Beatrice Malezi Mkhize, little of which was challenged in
cross-examination, was this. After
the committee had allocated the
two houses to the Du Plooy family, Phewa handed over the keys of both
to Raymond Du Plooy. This
was in 1991, at a time when Robert Du Plooy
was not in Emmaus but was, she thought, at Umgababa. The family took
occupation of
the houses. Raymond Du Plooy died in 1994, the year in
which Robert Du Plooy returned. Following the death of Raymond Du
Plooy,
at the washing of the hands ceremony (ukugezwa kwezandla), a
decision was taken to nominate Robert Du Plooy ‘to represent
the family’.
[19] Her evidence then
proceeds as follows:
‘
When Robert
was nominated to represent the family, please tell the Court who was
present at the time the nomination was made? –
All of us, the
members of the Du Plooy family , were present.
Was Robert also present? –Yes.
And for what purpose was Robert
nominated to represent the Du Plooy family? – We chose him
because he was the eldest male
in the family and he had to look after
the interests of the family.
Was there anything that Robert had to
do in relation to the two houses that had been built by the MMI? –
No, there was nothing.
Was there any discussion about taking
legal ownership, transfer, of the two properties? – No, that
was never discussed.
Did Robert accept the nomination? –
Yes.
And did he tell the members of the Du
Plooy family that he accepted that nomination? – We were all
together at home and he
accepted in the presence of all of us.’
[20] As stated above the
appellants closed their case without giving any evidence at all. The
result, for the determination of the
facts, has been set out as
follows by Cloete JA as follows in
Lekup
Prop Co No. 4 (Pty) Ltd v Wright
:
2
‘
A referral
to trial is different to a referral to evidence, on limited issues.
In the latter case, the affidavits stand as evidence,
save to the
extent that they deal with dispute(s) of fact; and once the
dispute(s) have been resolved by oral evidence, the matter
is decided
on the basis of that finding together with the affidavit evidence
that is not in dispute.’
[21] There is no reason
why the evidence of Phewa and Mkhize should not be accepted and I do
not understand the judgment of the
court below to take a contrary
view. That means that the primary issue – the capacity in which
Robert Du Plooy acquired title
deeds to the houses in 1996 –
must be decided on the basis of the uncontroverted oral evidence
which I have set out above
plus any additional undisputed evidence
contained in the affidavits.
The judgment of the
court below
[22] Ngwenya AJ decided
that the matter should be dealt with in terms of Zulu customary law.
3
In this decision he was
not supported by either of the parties. He then proceeded to set out
the customary law position as he saw
it. He was certainly able to
take judicial notice of customary law
4
and he had a discretion
as to the system of law to be applied
5
but, in my view, he erred
in exercising that discretion.
[23] He made an
assumption that the Du Plooy family ‘conduct their relationship
and relate to one another in terms of customary
law’. This
conclusion is not, in my view, evident from the record, as he
asserted. He also appears to have been influenced
by the fact that
Robert Du Plooy was regarded as the head of the family. Further than
that, he considered no factors that may or
may not have served as
connections between the parties and a system of customary law and, as
the parties made no assertions as
to the application of customary law
to their dispute, no evidence was led from which that choice could be
inferred. Similarly,
no specific evidence concerning the lifestyles
or the prior transactions of the parties was tendered and that
evidence which incidentally
dealt with their lifestyles does not
necessarily point to customary law as the appropriate choice of law.
6
Finally, Ngwenya AJ
applied the Zulu customary law of succession to the dispute but the
dispute had nothing to do with succession.
It concerned whether or
not an agreement of co-ownership had been reached or whether or not
Robert Du Plooy had been mandated by
his siblings to hold the
property as a nominee.
[24] Ngwenya AJ arrived
at the conclusion that Robert Du Plooy had, in terms of customary
law, held the properties as head of the
family and that he was not
able to dispose of them without the consent of his siblings. He also
found that the properties, although
registered in the name of Robert
Du Plooy, were in fact ‘collectively and equally owned’
by the respondents and Robert
Du Plooy. Ngwenya AJ also dealt with
the matter, in the alternative, on the same basis as the parties,
finding that the evidence
had established that Robert Du Plooy had
been nominated by his siblings to look after the interests of the
family. He accordingly
granted all of the relief claimed.
The issues on appeal
[25] Two principal issues
arise in this appeal. The first is the capacity in which Robert Du
Plooy acquired title to the houses
and the second is whether the
second appellant, Mr Victor Nkosinathi Zikole, had knowledge of the
dispute concerning Robert Du
Plooy’s right to alienate before
transfer to him was effected.
[26] Before turning to
the first issue it is necessary to say something of what is meant by
the term ‘family’. In
S
v Ndabesitha; S v Tshabalala
,
7
the court observed that
the ‘word “family” has no precise legal connotation
but is clearly one of wide signification’.
And in
Smith
NO and Lardner-Burke NO v Wonesayi
,
8
Beadle CJ said that the
‘word “family” again may have many meanings,
according to the context in which it is used.’
It is clear from
these cases (and others cited in them) that the particular meaning of
the word, in each instance, is fact-specific.
For this reason, a
general definition of its meaning (such as a dictionary meaning)
serves little purpose in a case such as this.
In the context of this
case, in my view, it means the living siblings born of George and
Irene Du Plooy – Robert Du Plooy
and the respondents. That
meaning emerges in particular from the context of the negotiations
for the houses in New Emmaus and the
way in which the houses were
occupied thereafter. Most importantly, it is also the conclusion to
be drawn from what the parties
themselves considered ‘the
family’ to be for the purpose of the mandate given to Robert Du
Plooy.
[27] From the evidence
that I have outlined, it is clear that the houses were allocated to
the Du Plooy family while Robert Du Plooy
was away from Emmaus. That
was in 1991. They occupied them on the terms agreed to by the
committee that represented them, namely
as a family, rather than in
the name of any individual. Indeed, at that stage there was no talk,
according to both Phewa and Beatrice
Mkhize, of the transfer of
ownership to anyone. That came later.
[28] After Robert Du
Plooy returned, in 1994, he must, as a matter of overwhelming
probability, have become aware of the terms of
the grant of the
houses to the families. He could have been under no illusions on this
score. And if there was any doubt, that
would have been removed by
his nomination as the representative of the family. It is most
unlikely that Father Dieter, as one of
the MMI representatives in the
negotiations, would have told him, as he claims, that the houses
would be transferred to him in
his personal capacity, rather than as
a representative of the Du Plooy family. As it happens, Robert Du
Plooy did not testify about
his dealings with Father Dieter and allow
this evidence to be placed under scrutiny. It can safely be rejected
in the circumstances.
[29] He also did not
testify about what transpired at the washing of the hands ceremony.
The evidence of Beatrice Mkhize stands
uncontroverted that he was
nominated to represent the family and safeguard its interests. Even
though there was no mention of the
ownership of the houses at that
stage, that is explicable: it was not then a live issue. Despite
that, however, Robert Du Plooy,
when he accepted the nomination must
have understood his mandate to be in relation to all of the affairs
of the Du Plooy family.
Given the history of the acquisition of the
properties, they, as part of the mandate, must have been uppermost in
the minds of
the entire family.
[30] The conclusion is
inescapable that, either when the opportunity to acquire ownership of
the properties arose or later when
he discerned the chance to sell,
Robert Du Plooy opportunistically snatched at a bargain and betrayed
the trust that had been reposed
in him by his siblings. He could not
have believed that he was entitled to take ownership in his personal
capacity.
[31] That said, however,
I am of the view that the evidence of Beatrice Mkhize does not go so
far as to establish that an agreement
was reached that Robert Du
Plooy and his siblings would own the property as co-owners, in the
sense that the members of the family
became owners of the properties
‘simultaneously, not in
physical portions but in
abstract undivided shares’.
9
The broad terms of the
mandate given to him are not capable of such an interpretation.
Indeed, it will be recalled that Beatrice
Mkhize’s evidence was
that Robert Du Plooy was nominated to represent the family and to
look after its interests but there
was no discussion at all about
taking transfer of the houses.
[32] That does not mean
that Robert Du Plooy was free to dispose of the houses. He held them,
once transfer had been effected, on
behalf of himself and his
siblings. His nomination placed him in a position of trust in
relation to all of the affairs of the family,
including its
proprietary interests. In that sense, he was in a similar position to
the respondent in
Dadabhay
v Dadabhay
10
who, on the strength of
an oral agreement entered into with the appellant, bought a house on
behalf of and as nominee for her but
refused to transfer it to her
when called upon to do so. This court held that the oral agreement
was not hit by s 1(1) of the Alienation
of Land Act 68 of 1967
because it was ‘in no sense a contract of sale between the
appellant and the respondent’ and
neither was it a cession in
respect of an interest in land because it was not a ‘cession in
the nature of a sale’.
11
In the context of the
particulars of claim, the court held that the ‘word “nominee”
may well have been used to
denote that the respondent would act as a
trustee in buying the property and would thereafter sign all
documents, when called upon
by the appellant, in order that it could
be registered in her name’.
12
[33] The terms of the
nomination of Robert Du Plooy are quite different to those in
Dadabhay
but the evidence
nonetheless establishes that he was not free to alienate erf 17874 to
the second appellant without the consent
of his siblings: in terms of
the nomination, he held the property in the best interests of the
family and that meant that he was
not free to do with it as he
pleased.
[34] I turn now to the
position of the second appellant in relation to the order setting
aside the sale to him. In his affidavit,
he makes no direct factual
averments
concerning when the
property he bought from Robert Du Plooy was transferred to him and
whether he was aware of the respondents’
challenge to their
brother’s alleged right to alienate erf 17874. That he was
aware of the dispute between Robert Du Plooy
and his siblings is,
however, clear from his affidavit.
[35] At the hearing of
this appeal, the parties were afforded an opportunity to file further
affidavits on whether the second appellant
was aware, prior to the
registration of transfer on 30 June 2009, of the challenge to Robert
Du Plooy’s alleged right to
alienate erf 17874. In an affidavit
deposed to by the respondents’ attorney, Mr M L Dube, reference
is made to correspondence
attached to the founding affidavit that
establishes that the second appellant knew of Robert Du Plooy’s
disputed title to
the property prior to transfer having been
effected. On 7 April 2009, he wrote to Mr ME Mbhele, who acted for
both of the appellants.
He stated:
‘
We confirm
the telephonic conversation of the 7
th
April 2009
between Messrs Mbhele and Dube of our respective offices wherein we
indicated as follows:
1. It has come to our clients’
attention that you act for Mr Robert Mandlenkosi Du Plooy and Mr
Nkosinathi Zikole in the transfer
of the above-mentioned property.
2. Our clients inform us that Mr
Robert Du Plooy is not the de facto owner of the Property, it is
jointly owned by the whole family.
He is merely a representative of
the entire Du Plooy family.
3. That being the case he has no
authority to sell the property without the consent of the family.
Our instructions are to request you,
as we hereby do, to discuss the matter with your above-mentioned
clients with the view not
to proceed with the transfers until the
dispute between them has been resolved.’
On 21 April 2009, Mr
Mbhele wrote back to say that he had consulted with his clients and
his instructions were to proceed with the
transfer.
[36] On 28 April 2009, Mr
Dube wrote a letter to Mr Mbhele because he had not at that stage
received the letter of 21 April 2009.
(He only received it on 14 May
2009.) In this letter he said that he had instructions to launch an
application to interdict the
transfer and asked that, if Mr Mbhele
was intent on proceeding with the transfer, he at least hold the
matter in abeyance ‘to
give us time to bring the application,
to give the high court a chance to deal with the matter’. Mr
Dube also wrote a letter,
dated 7 May 2009, to the second appellant
in which he stated:
‘
Our
instructions are to demand, as we hereby do, that you discontinue
with the said purchase; if you proceed to accept and receive
transfer
despite our warning, our client will make an application in court to
prevent transfers from being effected in your favour,
if transfers
shall have been effected, for the sale to be set aside and for the
transfers to be cancelled.’
Mr Dube attempted to
serve this letter on the second appellant personally at the Pinetown
Magistrates Court but the second appellant
refused to accept the
letter.
[37] The application was
served by the sheriff, according to the return of service, on the
second appellant by service on one Mzwawele
Zikole, described as a
son of the second appellant at the residence of the second appellant
on 5 June 2009.
[38] In answer to these
allegations the second appellant made no affidavit. Instead, his
attorney, Mr Mbhele conceded that his clients
were warned by the
respondents’ attorneys of the planned application for an
interdict but they chose to continue with the
transfer and instructed
him to oppose any application that may have been launched. For the
rest, Mr Mbhele’s affidavit contains
inadmissible hearsay
evidence that must be disregarded.
[39] In addition, the
evidence indicates that the second appellant was aware, over a fairly
long period, that the respondents disputed
Robert Du Plooy’s
right to sell the house to him. Indeed, so bitter was that dispute
that it even resulted in violence directed
at him. The second
appellant lived in Emmaus. He leased a room on the property that he
purported to purchase. That being so, it
can as a matter of
overwhelming probability be accepted that he knew of the history of
the acquisition of the two houses by the
Du Plooy family and the
terms upon which they were allocated to them. He must be taken, in
other words, to have known that Robert
Du Plooy held the property
that he purported to purchase as a nominee for his siblings. He must
also have known that the dispute
was a serious one in the sense that
it could not simply be wished away as being without merit or
frivolous. The basis for this
is the letter that Mr Dube sent to Mr
Mbhele on 7 April 2009, which was then brought to the notice of the
second appellant when
Mr Mbhele consulted with him in order to take
instructions on whether to proceed with the transfer.
[40] In the result, I
conclude that, prior to transfer being effected on 30 June 2009, the
second appellant had knowledge that Robert
Du Plooy’s title was
subject to challenge. When he instructed his attorney to proceed with
the transfer, despite knowing
that proceedings aimed at stopping or
setting aside the transfer were in the offing, he did so at risk. He
was not an ‘innocent
transferee’ when transfer was
effected and it follows from this fact that the transfer of erf 17874
is liable to be set aside.
13
The order
[41] In my view, some but
not all of the relief granted by the court below was competent. The
respondents were entitled to an interdict
to restrain Robert Du Plooy
from alienating the properties and the setting aside of the transfer
to the second appellant. They
did not establish that they were
co-owners and so were not entitled to a declarator to that effect and
an order directing the Registrar
of Deeds to endorse the title deeds
to reflect their co-ownership. In other words, the appeal succeeds in
part.
[42] That raises the
issue of the costs order in the court below and the costs of the
appeal. In my view, the respondents achieved
substantial success in
the court below in the form of the interdict and setting aside of the
transfer. These orders, after all,
go to the heart of the protection
of their interests in the properties. It follows that they have also
achieved substantial success
on appeal. They are entitled to their
costs in the court below and in this court.
[43] I make the following
order:
(a) The appeal succeeds
to the extent that paragraphs 2 and 4 of the order of the court below
are set aside.
(b) The appellants are
directed, jointly and severally, to pay the costs of the respondents.
________________________
C Plasket
Acting Judge of Appeal
APPEARANCES:
For the First and Second
Appellant: M E Mbhele
Instructed by:
M E Mbhele & Co;
Durban
N W Phalatsi &
Partners; Bloemfontein
For the First to the
Eighth Respondents: H A de Beer SC
Instructed by: ,
Mbele, Dube &
Partners; Durban
Mthembu & Van Vuuren
Inc; Bloemfontein
1
Francois
du Bois, Graham Bradfield, Chuma Himonga, Dale Hutchison, Karin
Lehmann, Rochelle le Roux, Mohamed Paleker, Anne Pope,
C G van der
Merwe and Daniel Visser
Wille’s
Principles of South African Law
9
ed (2007) at 558.
2
Lekup
Prop Co No 4 (Pty) Ltd v Wright
2012
(5) SA 246
(SCA) para 32.
3
I
use the term customary law, rather than indigenous law, because that
is the term used in the Constitution. See s 39.
4
Law
of Evidence Amendment Act 45 of 1988
,
s 1(1)
which reads: ‘Any
court may take judicial notice of the law of a foreign state and of
indigenous law in so far as such
law can be ascertained readily and
with sufficient certainty: Provided that indigenous law shall not be
opposed to the principles
of public policy and natural justice:
Provided further that it shall not be lawful for any court to
declare that the custom of
lobola or bogadi or other similar custom
is repugnant to such principles.’
5
Ex
Parte Minister of Native Affairs: In Re Yako v Beyi
1948
(1) SA 388 (A) 395-396.
6
See
generally, T W Bennett (assisted by N S Peart)
A
Sourcebook of African Customary Law
(1991)
at 123-129; T W Bennett
Customary
Law in South Africa
(2004)
at 51-57.
7
S
v Ndabesitha; S v Tshabalala
1966
(1) SA 827
(N) at 828F.
8
Smith
NO and Lardner-Burke NO v Wonesayi
1972
(3) SA 289
(RA) at 297F.
9
Du
Bois et al (note 1) 558; A J van der Walt and G J Pienaar
Introduction to the Law of
Property
6 ed (2009)
48-49.
10
Dadabhay
v Dadabhay & another
1981
(3) SA 1039
(A).
11
At
1048A-1049H.
12
At
1047F-G.
13
Mvusi
v Mvusi NO & others
1995
(4) SA 994
(Tk) at 1006A-D;
Kazazis
v Georghiades & andere
1979
(3) SA 886
(T) at 892B-894C;
Cussons
& another v Kroon
2001(4)
SA 833(SCA) para 9.