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[2023] ZAFSHC 233
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Steenkamp N.O and Others v Rampai and Others (2478/2022) [2023] ZAFSHC 233 (15 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 2478/2022
In
the matter between:
IZAK
JACOB STEENKAMP N.0 in his capacity
As
the duly Appointed Master’s Representative
In
the estate of Late Tsietsi Moses Maloko
with
estate number 3[…]
1
ST
APPLICANT
PALEMA
BEAUTY MOHLOUOA
2
ND
APPLICANT
LINEO
JOSEPHINE MALOKO
3
RD
APPLICANT
And
SELLOANE
MONICA RAMPAI
1
ST
RESPONDENT
PUSELETSO
SUSAN MALOKO
2
ND
RESPONDENT
MMALEHLWA
LENA MALOKO
3
RD
RESPONDENT
STRAMPE
DU PLESSIS ATTORNEYS
4
TH
RESPONDENT
THE
REGISTRAR OF DEEDS
5
TH
RESPONDENT
MASTER
OF THE HIGH COURT
6
TH
RESPONDENT
CORAM:
NG Gusha, AJ
JUDGMENT
BY:
NG Gusha, AJ
HEARD
ON:
25 MAY 2023
DELIVERED
ON
: This judgment was delivered electronically by circulation to
the parties’ representatives by way of email and by release
to
SAFLII. The date and time for delivery is deemed to be at 09h00 on 15
JUNE 2023.
JUDGMENT
INTRODUCTION
[1]
This is an application for the cancellation of the registration of
property, to wit Erf 7[…]
M[…] (Letlabika Street) Free
State Province (the property).
[2]
The 1
st
applicant is an attorney and the duly appointed
Master’s representative in the estate of the late Mr Tsietsi
Moses Maloko
(the deceased) who passed away on the 2
nd
January 2020. He is survived by the 2
nd
applicant Ms
Mohlouoa who is his granddaughter.
[3]
In life the deceased was married to the 3
rd
applicant, Ms
Lineo Maloko, which marriage terminated by divorce on the 13
th
September 1979.
[4]
The 1
st
to 3
rd
respondents are the deceased’s
nieces.
[5]
The 4
th
to 6
th
respondents are a firm of
attorneys, the registrar of deeds and the master of the high court,
Free State respectively. No relief
is sought from the 4
th
to 6
th
respondents.
[6]
In their amended notice of motion the applicants seek the following
relief, that;
1.1.
The 5
th
respondent, the Registrar of Deeds (Bloemfontein),
is ordered to cancel the title deed number T10[…] in respect
of Erf 7[..]
M[..] (Letlabika Street) Free State Province (the
property) and to cancel all the rights accorded to the 1
st
to 3
rd
respondents by virtue of the deed.
1.2.
Authorizing the 1
st
applicant to register Erf 7[…]
M[..] (Letlabika Street) Free State Province held under title deed
number T10[…]
in the estate of the late Tsietsi Moses
Maloko with estate number 3[…]
1.3.
Authorizing the Registrar of the High Court, or the attorneys for the
applicant to sign any and all documents
related to the above should
the 1
st
to 3
rd
respondents refuse to sign.
1.4.
Ordering the 1
st
to 3
rd
respondents to pay the
costs of this application, the one paying the other to be absolved.
1.5.
Ordering the 1
st
to 3
rd
respondents to pay the
costs of the transfer and registration of Erf 7[…] M[…]
(Letlabika Street) Free State Province
held under title deed T10[…]
in the estate of the late Tsietsi Moses Maloko with estate number
3[…], the one paying
the other to be absolved.
1.6.
Further and /or alternative relief.
[7]
The facts germane to this application are the following; subsequent
to the death of the deceased,
the 1
st
respondent reported his death to the Master of the High Court
[1]
.
In the notice of death she indicated that she, the 2
nd
and 3
rd
respondents were the deceased’s sisters, when in fact they were
his nieces
[2]
.
[8]
They also indicated that the deceased was never married and left no
issue and omitted to disclose
that he was in fact divorced and that
his daughter, Ms. Dipuo Mohlouoa, who pre-deceased him had a daughter
the 2
nd
applicant, who by law is the deceased’s sole heir
[3]
.
[9]
It is on the strength of the aforesaid information that the 1
st
to 3
rd
respondents were on the 16
th
July 2020 issued with letters of authority
[4]
duly authorizing them to take control of the assets in the deceased’s
late estate. In execution of the authority, the 1
st
to 3
rd
respondents caused the property to be registered in their names on
the 20
th
October 2020.
[10]
Upon receiving a complaint from the 2
nd
and 3
rd
applicants and the 1
st
to 3
rd
respondents’ failure to respond thereto, the 6
th
respondent on the 10
th
October 2020 withdrew the letters of authority issued
[5]
.
[11]
The 1
st
to 3
rd
respondents raised,
in
limine,
the misjoinder of the 3
rd
applicant. They
averred that as the deceased and the 3
rd
applicant were
divorced in 1979, long before this dispute arose, no facts were
placed before this court supporting the joinder
of the 3
rd
applicant, as the terms of their divorce in the form of a deed of
settlement were not before the court.
[12]
I hold the considered view that nothing turns on this aspect, the
property was registered in the deceased’s
name and as the
deceased died intestate, that property and indeed all his other
earthly possessions must be dealt with in terms
of intestate
succession. It is in any event apparent from the pleadings that the
3
rd
applicant is joined herein in so far as she may have
an interest in the outcome.
[13]
The point in limine is thus not upheld.
[14]
Against the backdrop of the facts as alluded to
supra,
the
question to be answered in this application is whether the transfer
of the property into the names of the 1
st
to 3
rd
respondents was valid and based on a lawful
causa
.
[15]
The applicants submitted that due to the fraud committed by the 1
st
to 3
rd
respondents, the registration of the property into their names is
void
ab initio
.
[16]
During submissions the 1
st
to 3
rd
respondents conceded the misrepresentation and acquiesced that the
registration was indeed void
ab initio
.
[17]
The 1
st
to 3
rd
respondent’s acquiescence of the misrepresentation puts paid to
their opposition of the relief sought. The principle “fraud
unravels all” needs no restating. In
Namasthethu
Electrical (Pty) Ltd v City of Cape Town
[6]
the court per Mbha JA in restating the law cited with approval the
following
dicta
in
Lazarus
Estates
Ltd v
Beasley
[1956] 1
QB (CA) at 712
'No
court in this land will allow a person to keep an advantage which he
has obtained by fraud. No judgment of a court, no order
of a
Minister, can be allowed to stand if it has been obtained by fraud.
Fraud unravels everything. The court is careful not to
find fraud
unless it is distinctly pleaded and proved; but once it is proved it
vitiates judgments, contracts and all transactions
whatsoever . . .'
[18]
The aforesaid principle applies in the present case as well. It
therefore stands to reason that the registration
of the property into
the names of the 1
st
to 3
rd
respondent’s stands to be set aside and cancelled as same was
underpinned by their misrepresentation to the 6
th
respondent. The result of said cancellation would be that the
property reverts to the estate of the deceased for the executors
thereof to deal therewith in accordance with the law of intestate
succession
[7]
.
[19]
With regards to costs, the general rule is trite and there is no
reason for me to depart therefrom.
[20]
Resultantly, I make the following order:
1.
The 5
th
respondent, the Registrar of Deeds (Bloemfontein),
is ordered to cancel the title deed number T10[…] in respect
of Erf 7[…]
M[…] (Letlabika Street) Free State Province
and to cancel all the rights accorded to the 1
st
to 3
rd
respondents by virtue of the deed.
2.
The 1
st
applicant is authorized to register Erf 7[…]
M[…] (Letlabika Street) Free State Province held under title
deed number
T10[…] in the estate of the late Tsietsi
Moses Maloko with estate number 3[…].
3.
The Registrar of the High Court, or the attorneys for the Applicant
are authorized to sign
any and all documents related to the above
should the 1
st
to 3
rd
respondents refuse to
sign.
4.
The 1
st
to 3
rd
respondents shall bear the costs
of this application, the one paying the other to be absolved.
5.
The 1
st
to 3
rd
respondents shall bear the costs
of the transfer and registration of Erf 7[…] M[…]
(Letlabika Street) Free State
Province held under title deed T10[…]
in the estate of the late Tsietsi Moses Maloko with estate number
3[…], the
one paying the other to be absolved.
NG
Gusha, AJ
On
behalf of the applicant
Adv.
SC Steenkamp
Instructed
by:
Steenkamp
and Jansen Inc.
BLOEMFONTEIN
On
behalf of the respondent:
Mr.
K Matee
Instructed
by:
MATEE
ATTORNEYS
BLOEMFONTEIN
[1]
Death notice; Annexure C, page 30 of the paginated bundle.
[2]
The 2
nd
and 3
rd
respondents confirmed same in their respective confirmatory
affidavits.
[3]
Master’s report and section 1 (1) (b) read with section 4(a)
of the Intestate Act, Act 81/1987.
[4]
Page 41 of the paginated bundle.
[5]
Pp 43 to 45 of the paginated bundle.
[6]
(201/19)
[2020] ZASCA 74
(29 June 2020) at par 29.
[7]
Section 6 of the Deeds registries Act, Act 47 of 1937 provides as
follows;
(1)
Save as is otherwise provided in this
Act or in any other law no registered deed of grant, deed of
transfer, certificate of title
or other deed conferring or conveying
title to land, or any real right in land other than a mortgage bond,
and no cession of
all registered bond not made as security, shall be
cancelled by a registrar except upon an order of Court.
(2)
Upon the cancellation of any deed conferring or conveying title to
land or any real
right in land other than a mortgage bond as
provided for in subsection (1), the deed under which the land or
such real right
in land was held immediately prior to the
registration of the deed which is cancelled, shall be revived to the
extent of such
cancellation (my own emphasis), and the registrar
shall cancel the relevant endorsement thereon evidencing the
registration of
the cancelled deed.