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[2010] ZASCA 32
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Meintjes NO v Coetzer and Others (089/09) [2010] ZASCA 32; 2010 (5) SA 186 (SCA) ; [2010] 4 All SA 34 (SCA) (29 March 2010)
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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case no:
089/09
FRANS
JOHANNES MEINTJES NO
Appellant
and
ISABELLA
CHRISTENA COETZER First
Respondent
JOHANNES
MEINTJES Second Respondent
THE
REGISTRAR OF DEEDS Third Respondent
Neutral citation:
MEINTJES
V COETZER & OTHERS
(089/09)
[2010] ZASCA 32
(29 March 2010)
CORAM
:
MTHIYANE,
SHONGWE and LEACH JJA and THERON and
SERITI
AJJA
HEARD:
15
FEBRUARY 2010
DELIVERED:
29 MARCH 2010
SUMMARY:
Property
– Deceased estate – whether the deceased had
waived/abandoned her right to the ownership of certain portions
of
her property which were transferred to first and second respondents.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
North Gauteng High Court (Pretoria)
(Botha J sitting as court of first instance).
The following order is made
:
1. The appeal is upheld with costs, such costs to be paid by the
first and second respondents, jointly and severally the one paying
the other to be absolved.
2. The order of the court a quo is set aside and substituted with the
following:
‘
(a) The third defendant is ordered to
rectify the title deed of Portion 2 and Portion 3 of Mazunga 142,
Registration Division KT
Limpopo Province, by cancelling the transfer
and registration of the said portions in the names of first
defendant, Isabella Christena
Coetzer and the second defendant,
Johannes Meintjes, and re-transferring and registering the said
Portion 2 and Portion 3 into
the name of deceased estate of John
Meintjes (ID 170610 0008 086).
(b) The first and second defendant’s counter claim is
dismissed.
(c) The first and second defendant’s are
ordered to pay the plaintiff’s costs, jointly and severally the
one paying
the other to be absolved.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
S
hongwe JA
(Mthiyane JA and Theron and Seriti
AJJA concurring):
[1]
This appeal is
against the judgment and order of the North Gauteng High Court
(Pretoria) (Botha J) dismissing an action instituted
by the
appellant, as plaintiff, against the respondents, as first, second
and third defendants. For convenience I shall refer to
the parties as
plaintiff and defendants as in the court a quo. In that action the
plaintiff sought an order directing the third
defendant to rectify
the title deeds of portions 2 and 3 of the farm Mazunga 142,
Registration Division K.T., Limpopo Province
to indicate that the
deceased estate of John Meintjes (ID 170610 0008 086) is the
registered owner of the said portions. In the
alternative he sought
an order compelling the first and second defendants to sign the
necessary documentation to effect the transfer
of portions 2 and 3 of
the farm Mazunga 142, Registration Division K.T., Limpopo Province,
to the deceased estate within 30 days
of the order, failing which the
sheriff within whose jurisdiction area farm Mazunga 142 is situated,
is authorised to sign all
necessary documents to effect such
retransfer. In its dismissal of the plaintiff’s claim the court
a quo found that the first
and second defendants had succeeded in
proving their defence of waiver. The matter is now before this Court
with the leave of the
court a quo.
[2] In my view the facts of this case are not in
dispute but the sole question for decision on appeal is whether the
deceased had
waived or abandoned her right to the ownership of
portions 2 and 3 of her property, which were fraudulently transferred
by the
first and second defendants into their names. Allied to this
issue is the question whether immovable property is capable of being
transferred by way of waiver without a deed of alienation duly signed
by both the owner and the transferee as required by s 2(1)
of the
Alienation of Land Act 68 of 1981 (the Act).
[3] A short backdrop of the history of the matter
is perhaps necessary. The plaintiff, the first and second defendants
are the children
of the deceased John Meintjes, their mother,
although the name may misrepresent her gender. She owned the farm
Mazunga (the farm)
situated in the Limpopo Province as described
above. She lived on the farm with the plaintiff and his family. In
1993 she made
a will wherein she bequeathed all her property to her
children in three equal shares. In 1998 she applied for a subdivision
of
the farm into three portions, which subdivision application was
granted. In 2003 she made another will in which she bequeathed each
specific portion of the farm to her respective children. The first
and second defendants were to receive portions 2 and 3 respectively.
[4]
The deceased became
ill and died in January 2006. Before she died the first and second
defendants clandestinely orchestrated a transfer
of portions 2 and 3
of the farm into their names. This, they did without the deceased's
knowledge. Documents were falsified and
eventually portions 2 and 3
of the farm were transferred and registered into their names. In the
year 2002 a purported deed of
sale in respect of portion 3 was
produced and in June 2003 a purported deed of sale in respect of
portion 2 was produced. The deceased
did not sign any deed of sale or
transfer documents at any stage. Even the so-called transfer
documents, for example, the power
of attorney and related documents
that were put up were false.
[5]
There were family
meetings taking place between the deceased and her children at
different places and with different persons in
the person of her
children. Eventually in 2004 the deceased became aware that portions
2 and 3 of the farm had been fraudulently
transferred and registered
in the names of the first and second defendants. The plaintiff also
became aware of this fact
–
hence the action in 2007 in his capacity as executor of the
deceased's estate.
[6] In their plea the first and second defendants
denied that they forged transfer documents but later filed an amended
plea wherein
they included a special plea that the plaintiff's action
against them had become prescribed. In the alternative they pleaded
that
if it be found that the deceased did not sign the necessary
conveyancing documents required for the transfer of portions 2 and 3
and that the registration of portions 2 and 3 is unlawful, then in
that event, the deceased knew that portions 2 and 3 of the farm
had
been transferred into their names but failed to take any action to
reclaim the said property. Accordingly, continued the plea,
the
deceased had expressly waived or abandoned her right to claim the
return of portions 2 and 3 of the farm by signing a 'Kwitansie
en
Vrywaring" in favour of the first and second defendants
endorsing the transfer. And further alternatively, they pleaded
that
the deceased tacitly waived her right to claim the retransfer of
portions 2 and 3 of the farm.
[7] The first and second defendants included a
counterclaim wherein they requested a joinder of the plaintiff in his
personal capacity.
Consequently they asked for the eviction of the
plaintiff from portions 2 and 3 of the farm and costs of the
counterclaim.
[8] The plaintiff's claim is founded on
rei
vindicatio
. The first and second
defendants sought to counter by resorting to the flimsy defence of
waiver which was doomed to fail from the
moment it was made. The
plaintiff contends, correctly in my view, that the deceased never
lost her right of ownership, notwithstanding
the fact that portions 2
and 3 of the farm had already been transferred and registered in the
names of the first and second defendants
by illegal means. In
Legator
McKenna v Shea & others
[2008]
ZASCA 144
;
2010 (1) SA 35
(SCA) at para 22 Brand JA said the
following:
'[22]
In
accordance with the abstract theory the requirements for the passing
of ownership are twofold, namely delivery
which in the case of immovable property is effected by registration
of transfer in the deeds office coupled with
a so-called
real agreement or "saaklike ooreenkoms". The essential
elements of the real agreement are an intention on
the part of the
transferor to transfer ownership and the intention of the transferee
to become the owner of the property (see eg
Air-Kel
(Edms) Bpk h/a Merkel Motors v Bodenstein en 'n Ander
1980 (3) SA 917
(A) at 922E-F;
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
supra at para 17). Broadly stated, the principles applicable to
agreements in general also apply to real agreements. Although the
abstract theory does not require a valid underlying contract, eg
sale, ownership will not pass despite registration of
transfer if there is a defect in the real agreement (see eg
Preller and Others v
Jordaan
1956 (1) SA
483
(A) at 496;
Klerck
NO v Van Zyl and Maritz NNO
supra at 174A-B;
Silberberg
and Schoeman
op cit
at 79-80).'
(See also
Du Plessis
v Prophitius & another
[2009] ZASCA
79
;
2010 (1) SA 49
(SCA) wherein Ponnan JA referred to
Legator
with approval).
[9]
As we know real
rights may be acquired by various modes that are not reflected in the
Deeds Office, for example by prescription,
expropriation etc. In such
circumstances the owner can trump a bona fide possessor who acquired
the property from the person registered
as owner in the Deeds
Registry. The Registrar of Deeds under the negative system of
registration, which was adopted in South Africa
from Roman-Dutch law,
plays a rather passive role, however, he examines every deed
carefully before registering it, but mistakes
do happen. For example
where the signature of the transferor is forged, as is the case in
the matter before us, the court will
order rectification of the Deeds
Registry, in favour of the original owner. This will be so even
against the bona fide acquirer.
In the present case,
a
fortiori
, the first and second
defendants are not bona fide acquirers as they admittedly forged the
deceased’s signature. (See also
Preller
& others v Jordaan
1956 (1) SA 483
(A) at 496). Mr Bergenthuin SC, for the plaintiff, referred to
Kristal v Rowell
1904 TH 66
at 71 where the power of attorney under which the mortgage
was executed was forged it was held that the mortgage therefore
conferred
no right or title of any sort upon the acquirer and the
original owner was entitled to have it cancelled.
[10]
In the present case
it is common cause that no deed of alienation in terms of s 2(1)
of the Act was signed by the owner and
the defendants to effect a
sale or transfer of any portion of the farm. Therefore there was no
legal foundation to effect transfer
to the first and second
defendants. Even the obligation creating the agreement was falsified.
The deceased did not and could not
lose her right of ownership. It
may well be that on an earlier occasion the deceased intended to
transfer portions of her farm
to her three children, the plaintiff
and the first and second defendants. In 1998 she applied for a
sub-division of her property.
To this may be added the fact that she
followed this up with a will she signed in 1993 (referred to in para
3 above). It must however
be remembered that a will only takes effect
upon the death of the testator. The 1993 will never took effect as it
was revoked by
a new will in 2005 in which she left her entire estate
to the plaintiff. Accordingly the 1993 will, cannot be relied upon by
the
first and second defendants as evidence pointing to their
ownership of portions 2 and 3 of the farm.
[11] It is contended by the first and second
defendants that the deceased was fully aware during her lifetime of
the transfer of
portions 2 and 3 of the farms to the defendants. They
argue further that the inaction of the deceased arose from the fact
that
the deceased was satisfied with the two portions of the farm
remaining in the defendants' names. They cite the making of a new
will in 2005 wherein she bequeathed all her estate to the plaintiff
as the basis for concluding that she abandoned her right to
portions
2 and 3. They argue that the entire estate referred to in the 2005
will is portion 1, which was not mentioned by the deceased
in the
will. Their argument as to waiver is untenable and unsustainable. The
first and second defendants bore the onus to establish
that a waiver
had occurred. For a waiver to be effectual they had to show that the
deceased, with the full knowledge of her right
to portions 2 and 3,
decided to abandon it, ‘whether expressly or by conduct plainly
inconsistent with an intention to enforce
it.’ (
Laws
v Rutherfurd
1924 AD at 263). What
happened in this case is plainly inconsistent with that intention.
When the deceased made her last will she
bequeathed her entire estate
to the plaintiff and not the ‘remainder’ thereof. If her
intention had been to abandon
portions 2 and 3 one would have
expected her to state unequivocally that she was giving the plaintiff
only portion 1 or at the
very least the remainder of her estate.
[12] The first and second defendants also raised
the question of prescription as a possible defence in the court a quo
but it was
not persisted in on appeal, the court a quo dismissed it
and there is no cross-appeal, therefore there is no need to deal with
it in this judgment. Section 28(2) of the Act was found to be
irrelevant because the transfer to the defendants took place on a
deed of sale which the deceased did not sign and the deed of transfer
and related documents were also falsified.
[13] It does not appear that the court a quo
addressed itself to prayer 2 of the plaintiff’s claim which is
based on the
rei vindicatio
.
It is my considered view that had it done so the outcome might have
been different, in that it would have enquired into the principles
relating to the acquisition and loss of ownership of immovable
property. In any event mere registration does not afford proof of
ownership.
[14]
Mr Omar for the
first and second defendants referred this court to
Knysna
Hotel CC v Coetzee N
O
[1997] ZASCA 114
;
1998 (2) SA 743
(SCA) at 754D-E. He relied heavily on this case to show that where
all the formalities of a transfer have been complied with, accepted
by the Registrar of Deeds, and where transfer is registered in the
Deeds Registry, there is a formal and legally valid transfer
that
will remain binding until it is set aside by an order of court. The
facts in
Knysna
are distinguishable to the present case in that in
Knysna
only the deed of transfer was valid whereas in the present case both
the obligation creating agreement (causa) and the real agreement
were
absent due the fraudulent conduct of the defendants.
[1
5] The fact that both
the obligation creating agreement, and the real agreement were
falsified is enough to deal a fatal blow to
first and second
defendants' defence who are in fact asking this court to countenance
their fraudulent actions. Their actions are,
indeed, contrary to
public policy. In the words of Ngcobo J in
Barkhuizen
v Napier
2007 (5) SA 327
(CC) para 28:
'Public policy represents the legal
convictions of the community; it represents those values that are
held most dear by the society
. . . . Since the advent of our constitutional democracy, public
policy is now deeply rooted in our Constitution and the values
that
underlie it.'
I may add that courts should decline to enforce or
give life to contracts that are in conflict with constitutional
values even though
the parties may have consented to them. In
this
instance the first and second defendants are asking this court to
give life to an illegal and fraudulently obtained right by
way of
recognising a waiver by the deceased. Therefore a contract that is
inimical to the values enshrined in our constitution
is contrary to
public policy and is unenforceable.
[16] The first and second defendants bore the onus
throughout to prove waiver or abandonment. The mere fact that the
property is
registered in the name of a person does not translate
into ownership. Ownership may be acquired by prescription or by
abandonment
even if the property is not registered in one's name. For
abandonment of property there must be an intention by the owner to
abandon
the property - see
Minister van
Landbou v Sonnendecker
1979 (2) SA 944
(A) at 764H. Munnik AJ in
Union Free
State Mining and Finance Corporation Ltd v Union Free State Gold and
Diamond Corporation Ltd
1960 (4) SA 547
(W) at 549C-E said the following:
'I do not think that a creditor can
by the mere exercise of his will terminate the obligation without the
concurrence of the debtor
because as both
Wessels
and
Pothier
point out a release, waiver or abandonment is tantamount to making a
donation to the debtor of the obligation from which he is
to be
released and until that donation has been accepted it has not been
perfected. There may conceivably be circumstances in which
a debtor
does not wish to be released from his obligation. It may for a
variety of reasons not suit him to be released. To allow
the release,
waiver or abandonment and the consequent making of a donation
dependent solely on the will or action of the creditor
would be
tantamount to creating a contract at the will of one party which is a
concept foreign to our jurisprudence.'
See also Christie,
The
Law of Contract in South Africa
5 ed
(2006) pp 437-438.
[17] The deceased is said to have had knowledge of
the registration of transfer of portions 2 and 3 of the farm onto the
names of
the first and second defendants. Examples are derived from
the 'Kwitansie en Vrywaring', the letter to the bank dated 6 May 2005
advising the bank manager to alter her will to exclude the first and
the second defendants as the transfer of portions 2 and 3
had already
been effected; the conversations the deceased had with the plaintiff
and his wife; and the tape recordings. Despite
all these happenings
the deceased did not exercise her right to reclaim portions 2 and 3.
The first and second defendants conclude
that she waived or abandoned
her right to reclaim the property. It is difficult to place any
evidentiary value to these phenomena
as each role player had a motive
for trying to influence the deceased one way or the other. The
deceased may not have been aware
that some of these things did take
place. Therefore it cannot be said that she intentionally or tacitly
abandoned her right to
reclaim her property.
[18] In the light of the reasoning proffered above
the counterclaim must also fail.
[19] The
following order
is made:
1. The appeal is upheld with costs, such costs to be paid by the
first and second respondents, jointly and severally the one paying
the other to be absolved.
2. The order of the court a quo is set aside and substituted with the
following:
‘
(a) The third defendant is ordered to
rectify the title deed of Portion 2 and Portion 3 of Mazunga 142,
Registration Division KT
Limpopo Province, by cancelling the transfer
and registration of the said portions in the names of first
defendant, Isabella Christena
Coetzer and the second defendant,
Johannes Meintjes, and re-transferring and registering the said
Portion 2 and Portion 3 into
the name of deceased estate of John
Meintjes (ID 170610 0008 086).
(b) The first and second defendant’s counter claim is
dismissed.
(c) The first and second defendant’s are
ordered to pay the plaintiff’s costs, jointly and severally the
one paying
the other to be absolved.’
_________________
J SHONGWE
JUDGE OF APPEAL
LEACH JA
[20] I have read the judgment prepared by Shongwe JA and although I
agree with his conclusion that the appeal should be upheld
and an
order made in the terms he proposes, I have reached that conclusion
by a somewhat different route which renders it unnecessary
to
determine some of the issues with which he has dealt.
[21] At the outset, I must record that cases
such as
Du Plessis v Prophitius
and
Legator McKenna
(see para 8 above)
recognised
the abstract theory of transfer as part of our law, and that under
that theory, even though a valid underlying contract
(eg of sale) is
not necessary, the passing of ownership of immovable property only
takes place when there has been delivery effected
by registration of
transfer coupled with a so called ‘real agreement’ or
‘saaklike ooreenkoms’, the essential
elements of which
are an intention on the part of a transferor to transfer ownership
coupled with a corresponding intention on
the part of the transferee
to become the new owner – so that if there is a defect in the
real agreement, ownership will not
pass even if registration of
transfer takes place.
[22] In the present case, not only was there no valid deed of
alienation of the disputed portions of the farm to the first and
second defendants as the deceased’s signature thereon had been
forged, but the necessary transfer documents had also been
similarly
falsified. In these circumstances, despite the registrar of deeds
having effected registration of transfer, there can
be no doubt that
the deceased never intended to transfer ownership of the two disputed
portions of the farm to the first and second
defendants at the time
registration of transfer was effected. She therefore remained the
owner thereof as my learned brother has
correctly concluded.
[23] In order to succeed the first and second defendants therefore
had to prove that after the deceased had become aware of the
fraudulent transfer of the two portions of the farm, she had waived
her right to reclaim them. For present purposes I am prepared
to
accept, but without deciding, that a waiver in these circumstances
could constitute a valid real agreement for the transfer
of ownership
(although a potential difficulty seems to me to be that in these
circumstances a waiver is no more than a
donation which in itself would be ineffective as not having been
recorded in writing and signed as required by
s 2(1)
of the
Alienation of Land Act 68 of 1981
). But should no such waiver have
taken place, the necessary factual foundation of the first and second
defendants’ defence
falls away and makes it unnecessary to
decide any further legal issues.
[24] In order to succeed the first and second
defendants were obliged to show that the deceased, with full
knowledge of her right
to reclaim the two portions of the farm (or
put differently, her rights of the ownership in those portions),
decided to abandon
such claim, whether expressly or by her conduct.
As was observed by Innes CJ more than three quarters of a century
ago, an observation
which remains as valid today as it did then, a
waiver is a question of fact which is always difficult to establish.
(
Laws v Rutherfurd
1924 AD 261
at 263).
[25] In seeking to establish such a waiver in
their favour, the first and second defendants referred to a number of
factors. In
particular they emphasized that during the 16 month
period from when she learned of the fraudulent transfer of two thirds
of the
farm, the deceased did not institute action to enforce her
claim for retransfer. It was also alleged that the deceased’s
alteration to her last will and testament, and her written
instruction to her attorney to amend her existing will, indicated
that
she must have had the intention to abide by the transfer of the
disputed two thirds of the farm.
[26] Although I shall deal with these factors
later, the immediate difficulty that I have with this argument is
that the first
and second defendants never sought to make out a case
that during her lifetime the deceased had communicated to them,
either expressly
or through her conduct, that she had waived her
claim or that they had accepted such a waiver. As was held in this
court in
Traub v Barclays National Bank
Ltd
;
Kalk
v Barclays National Bank Ltd
1983 (3)
SA 619
(A) at 634-635 a creditor’s intention not to enforce a
right has no legal effect unless and until there is some expression
or manifestation of it which is communicated to the person in whose
favour the right is waived or in some way brought to his knowledge,
and that any mental resolve not communicated to the other party and
only discovered later has no effect.
[27] Accordingly, without the first and second
defendants showing that the deceased communicated an intent to waive
her claim
which they accepted in her lifetime – and in that
regard facts of which they learned only after her death, eg, that the
deceased
had altered her will, cannot be relied on
ex
post facto
to establish a waiver on her
part – there can be no suggestion of a waiver by the deceased.
As it was never the first and
second defendants’ case that they
had accepted a waiver in their favour during the lifetime of the
deceased, on that basis
alone they must fail.
[28] But in any event, I agree with Shongwe JA
that the first and second defendants failed to establish an intention
on the part
of the deceased to waive her claim. At the outset, it is
inherently improbable that a person will lightly waive the right of
ownership
in valuable property out of which he or she has been
defrauded. (Compare
Financial Mail (Pty)
Ltd & others v Sage Holdings Ltd & another
[1993] ZASCA 3
;
1993 (2) SA 451
(A) at 469B-C). Moreover the fact that the deceased
changed her will to exclude reference to the first two defendants, on
which
they rely upon as showing that she accepted that it was
unnecessary to mention them in her will as their portions of the farm
had
already been transferred to them, is equally consistent for the
deceased being so angered by their fraudulent conduct that she had
decided to remove them as beneficiaries. Equivocal conduct of this
kind is by its very nature insufficient to establish a clear
intention to waive. (Compare
Van
Rensburg & andere v Taute & andere
1975 (1) SA 279
(A) at 308).
[29] The first two defendants also rely upon the written
instruction the deceased addressed to her bank to vary her will
which,
they argue, can only be regarded as amounting to an indication
that she accepted the fraudulent transfer and did not intend to take
steps to seek to recover the two portions of the farm. Suffice it to
say that I do not think that this correspondence can carry
the day.
One does not know how it came about that the letter in question was
prepared and typed or under what circumstances the
deceased came to
sign it. In the light of the admitted fraud perpetrated in respect of
the deed of sale and transfer of portions
of the farm, any
documentation must be viewed with some suspicion. And when weighed up
against an undisputed allegation that the
deceased, after learning of
the fraudulent transfer of the two portions of the farm to the first
and second defendants, had passed
a remark to the effect that they
had ‘hulle kele afgesny’ (slit their own throats) before
instructing the attorney
to change the will, her likely intention
appears to have been to disinherit them.
[30] Similarly, the so-called ‘receipts and indemnifications’
allegedly signed by the deceased in 2004 were most
suspicious. They
sought to provide proof of payment of the purchase price reflected in
each of the two forged sale agreements which
amounts, it was
ultimately conceded, had not in fact been paid. What led to these
documents being prepared and signed is unknown,
but in the light of
the suspicious circumstances which prevailed, the attorney who
appeared for the first and second defendants,
most correctly in my
view, did not attempt to afford much weight to them and, in truth,
they take the matter no further.
[31] Although the fact that the deceased did not
take steps to reclaim the two portions of the farm during the 16
month period
from when she learned of the fraud until her death is to
be taken into account in considering whether she had waived such
right,
a delay in exercising a right is but only one factor to be
taken into account and does not necessarily lead to an inference of
its abandonment. (See eg
Mahabeer v
Sharma NO & another
1985 (3) SA 729
(A) at 736E-737C). It must also be remembered not only that the
deceased was aged and in poor health, but that she was caught up
in a
situation of family strife with her various children making competing
claims upon her and her affection. In addition, at no
time during the
remainder of the deceased’s lifetime did the first and second
defendants seek to exercise any de facto rights
of ownership over any
potion of the farm which the plaintiff continued to farm without
interruption. In these circumstances, the
deceased’s failure
not to immediately embark on litigation is understandable and is not
indicative of an intention on her
part to abandon either her rights
of ownership in the two portions of the farm or her claim for them to
be transferred back to
her.
[32] Taking these and the other factors
mentioned by my learned colleague into account, the defence of waiver
is unsustainable
on the facts and, on that basis alone, the
appellant’s claim for rectification of the title deeds ought to
have succeeded.
For these reasons I agree that the appeal must
succeed.
_______________
L E LEACH
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
J
G Bergenthuin SC
Instructed
by:
Rooth
Wessels Motla Conradie
Pretoria
Rosendorff
Reitz Barry
Bloemfontein
For
Respondent: Z Omar (Attorney)
Instructed
by:
Zehir
Omar Attorneys
c/o
Friedland Hart & Partners
Monument
Park
Goodrick
& Franklin
Bloemfontein