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2023
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[2023] ZAFSHC 138
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Labuschagne and Another v Van Straaten (A149/2021) [2023] ZAFSHC 138 (25 April 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: A149/2021
In the matter between:
MAUREEN
LABUSCHAGNE
First
Appellant
WILLEM
ADRIAAN LABUSCHAGNE
Second
Appellant
and
ELLA VAN STRAATEN
Respondent
In re:
Case no.: 819/2019
Case no.:
4623/2019
The matter between:
ELLA
VAN STRAATEN
Applicant
and
WILLEM
ADRIAAN LABUSCHAGNE
First
Respondent
MAUREEN
LABUSCHAGNE
Second
Respondent
CORAM:
LOUBSER, J, OPPERMAN, J
et
KHOOE, AJ
JUDGMENT BY:
KHOOE, AJ
HEARD ON:
30 NOVEMBER 2022
DELIVERED ON:
The judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLII
on 25 APRIL 2023. The date and time for hand-down is deemed to be 25
APRIL 2023 at 14:00
INTRODUCTION
1.
This is an appeal against the following judgements of this
court:
1.1 The whole order of
Molitsoane, J dated 12 September 2019 under Case number 819/2019
(rectification and cancellation order).
Leave to appeal was
granted on 22 November 2021.
1.2 The whole order of
Naidoo, J dated 20 February 2020 under case number 4623/2019
(rescission and eviction order). Leave
to appeal was granted on
28 October 2020.
2.
The grounds of appeal against the order of Molitsoane
,
J are the following:
2.1 The order for
cancellation of the agreement is contrary to the principles and
findings of the Constitutional Court in the matter
of
Amardien
and Others v Registrar of Deeds and Others
[1]
wherein
it was held,
inter
alia
:
i) There is an obligation
on a seller in a contract for sale of land on instalments to register
the Contract of Sale at the Deeds
Office;
ii) A seller is not
entitled to receive consideration prior to the registration
2.2 As such,
payment and performance in terms of the contract would only have
become due and payable subsequent to the recordal
of the agreement at
the Deeds Office.
2.3 The purchasers
were accordingly not in default, nor was the seller entitled to claim
for cancellation in these circumstances.
2.4 The respondent
failed to comply with the prescripts of the
National
Credit Act
[2]
in demanding payment and
cancellation and informing the purchasers of their rights.
2.5 The forfeiture
order is contrary to the Constitutional Court
j
udgment
of
Botha
and Another v Rich N.O and Others
[3]
where
the Court held
inter
alia,
that
the granting of cancellation and forfeiture where more than three
quarters of the purchase price in the sale of land on instalments
was
paid would amount to a penalty breach.
2.6 No case for a
punitive cost order was made out.
2.7 No case was
made out for granting of the order for rectification.
3.
The grounds of appeal against Naidoo
,
J’s order are the following:
3.1 She erred in not
finding that there exists a good cause for the default order to be
rescinded considering the nature and the
effect of the order and the
legal position as set out in paragraph 2.1 herein
supra.
3.2 She erred in not
finding that the order was erroneously sought and granted.
3.3 She erred in not
granting the appellants the opportunity to obtain proper legal
assistance when leave was granted for their
legal representatives to
withdraw.
3.4 She erred in deciding
the eviction application where there
was
non-compliance with the order of the Honourable Justice
Opperman dated 10 October 2019 when the Sheriff was tasked to
investigate
and make inquiries regarding the adult occupants on the
property.
3.5 She erred in making
an order and determining the eviction in terms of the
Prevention
of Illegal Eviction and Unlawful Occupation of Land
[4]
whereas it is clear from allegations contained in the founding
affidavit that the property is a designated farm and accordingly
fell
within the prescripts of the
Extension
of Security of Tenure Act
[5]
.
4.
I will deal with
Molitsoane, J’s
order mainly as Naidoo
,
J’s order
will only be valid should Molitsoane
,
J’s order not be set aside.
BACKGROUND
5.
This matter has a long history but it is not necessary to
restate the whole history. The facts of the matter are common cause.
What
is before us, is only legal argument. In their notice of appeal,
the appellants for the first time put their version on record which
they had failed to do on numerous occasions before the courts
a
quo
for various reasons,
which include not having legal representation or that their legal
representative had withdrawn at last minute.
Their version consists
in fact that the Deed of Sale was never registered by the respondent,
who featured as the seller in the
Deed. In terms of the judgement in
Amardien
supra
they were
therefore under no duty to pay the instalments.
6.
Molitsoane
,
J said the following in his judgment in the application for
leave to appeal:
“
While I
understand the defence raised by the applicants in showing that they
have good prospects of success on appeal, it has to
be borne in mind
that the defence raised in this application was not raised before
court, either in an answering affidavit (as
same was not filed) or
when the matter was heard in court. The applicants have, however,
indicated that they intend to approach
the Court of Appeal with an
application for leave to adduce further evidence.
Section 19
(c) of
the
Superior Courts Act 10 of 2013
provides that:
The Supreme Court of
Appeal or a Division exercising appeal jurisdiction may, in addition
to any power as may be specifically provided
in any other law remit
the case to the court of first instance, or to the court whose
decision is the subject of the appeal, for
further hearing, with such
instructions as regards the taking of such further evidence as the
Supreme Court of Appeal or the Division
deems necessary.”
7.
Before us, the appellants did not bring a formal application
to tender further evidence. They did
,
however
,
raise their defence in their
notice of appeal and in argument before this court. For the sake of
justice and finality, this court
was not overly technical and allowed
the appellants to place their version before court as pleaded in
their notice of appeal.
8.
Now it appears
from the facts that around 2011, the parties entered into an
instalment agreement of sale of land. The contract is
governed by the
Alienation
of Land Ac
t
(ALA).
[6]
This act provides
as follows:
“
Section
20
(1) (a):
“
A
seller, whether he is owner of the land concerned or not shall cause
the contract to be recorded by the registrar concerned in
the
prescribed manner provided a prior contract in force in respect of
the land has not been recorded or is not required to be
recorded in
terms of the section.”
Section 26
(1):
“
No person shall by virtue of a deed of alienation relating
to an erf or unit receive any consideration until-
(a)
Such
erf or unit is registrable; and
(b)
In
case the deed of alienation is a contract required to be recorded in
terms of
S20
, such recording has been effected.”
9.
It is not in dispute on appeal that the agreement between the
parties constitutes the sale of land on instalment, it is also not
in
dispute that the respondent did not register the contract as
prescribed by the ALA. The provisions of the ALA and the judgement
in
Amardien are binding on this court. However, these facts were not
placed on record in the courts
a quo
,
and are now raised for the first time on appeal, without any
application to lead further evidence on appeal as far as these issues
are concerned. This court has to decide the matter within the four
corners of the records in the courts
a quo
. As a consequence,
this court cannot take any notice of the fact that the Deed of
Sale
in question was never registered in the determination of the appeal.
10.
At the hearing of this matter, it was pointed out that
regardless of what this court decides, there was going to be some
form of
injustice. The respondent in this case is an elderly lady who
finds herself bleeding money to pay a bond on a property she has
already sold to buyers who are enjoying the property without
servicing the bond.
On the other hand, we
have buyers who also do not have financial means having to come to
court to fight for the home which more
than ten (10) years later has
still not been registered in their names.
11.
Having regard to the record in the courts
a quo
as they
stand, we cannot find fault with the orders of the two judges
concerned. It follows that the appeal cannot succeed. There
is no
reason why costs should not follow the result.
12.
In the circumstances, I make the following order:
1. The appeal is
dismissed with costs.
N. J. Khooe, AJ
I concur.
P. J. Loubser, J
I concur:
M. Opperman, J
On
behalf of appellant:
Adv.
L. A. Roux
Instructed
by:
Van
Eeden Attorneys
BLOEMFONTEIN
On
behalf of respondent:
Adv.
K. N. Peterson
Instructed
by:
Horn
& Van Rensburg Attorneys
BLOEMFONTEIN
[1]
2019 (3) SA
341 (CC).
[2]
Act 34 of
2005.
[3]
2014 (4) SA
124 (CC).
[4]
Act 19 of
1998.
[5]
Act 62 of
1997.
[6]
Act 68 of
1981.