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[2023] ZAFSHC 490
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Mahlaba v Dihlabeng Local Municipality and Others (779/2021) [2023] ZAFSHC 490 (21 December 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: 779/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MMASEPHOSO
AMELIA MAHLABA
Applicant
and
DIHLABENG
LOCAL MUNICIPALITY
First Respondent
PHEELO
JOHANNES MOTAUNG
Second Respondent
THE
REGISTRAR OF
DEEDS
Third Respondent
CORAM:
HEFER AJ
HEARD
ON
:
30 NOVEMBER 2023
DELIVERED
ON:
21 DECEMBER 2023
[1]
The essence of the relief sought by the Applicant is to have her be
declared the lawful
and sole owner of certain immovable property
situated in B[...], Bethlehem, Free State Province.
[2]
The Applicant also seeks ancillary relief to the effect that
inter
alia
the Registrar of Deeds is ordered to cancel the title deed
in respect of the property and to cancel all rights accorded to the
Second Respondent by virtue of such deed and/or other endorsements
thereto.
Background facts
:
[3]
According to the Applicant, the property concerned is registered in
the name of the
Late Cecillia Maletsatsi Motaung (the
deceased), name. In support hereof, the Applicant attached a copy of
a printed Windeed search
dated 25 June 2018 confirming that the
property concerned is indeed registered in the name of the deceased.
It appears that the
property was registered in the name of the
deceased on the 11
th
of February 1992.
[4]
The Applicant basis her entitlement to the property on an alleged
donation by the
deceased to the Applicant.
[5]
In support of her contention in regards to such donation, the
Applicant attached a
sworn affidavit attested to before a
Commissioner of Oaths being a police constable at the Bethlehem
Police Station, dated 8 August
2001. According to this affidavit, the
deceased declared
inter alia
under oath as follows:
“
Op
2001-08-08 om 10:00 was by police stasie Bethlehem. Ek maak die
verklaring, ek gee Mmasephos Amelia Mahlaba my erf ... by die
extension two B[...], Bethlehem die nommer van die erf 4[...] ek gee
... ek bly by Z[...] straat 2[...]. Hy is my erf. Ek het twee
erf ...
hoekom ek gee Mmasephoso Amelia Mahlaba anner erf.”
[6]
From this document it appears that it was indeed the intention of the
deceased to
donate the property (the particulars of which correspond
with the property in regards to which the Applicant seeks a
declaratory
order), to the Applicant.
[7]
In further support of the relief sought, Applicant also attached a
document from which
it appears that application was made in regards
to Site No. 4[...], B[...], Bethlehem to indeed transfer the property
concerned
to the Applicant. This document is also dated the 8
th
of August 2001 and is signed by the deceased as well as the Applicant
in her capacity as beneficiary of such donation. This document
was
then further attested to by two witnesses.
[8]
The said document further contains wording to the effect that if the
transfer of the
property is as a result of a donation or sell
thereof, the application should be confirmed by a lawful agreement of
donation.
[9]
The deceased passed away on 26 April 2003. The Second
Respondent was appointed
by the Master of the High Court during 2019,
Bloemfontein as the Master’s representative in the deceased
estate. From the
letters of authority so issued, it is evident that
the only asset which is reflected in the inventory in regards to the
deceased
estate is indeed the property concerned, namely “Erf
4[...] Extension 2, B[...], 970 – Dihlabeng”.
[10]
According to the Applicant, she together with her late husband rented
the property from the deceased
and paid R200.00 per month rent. The
deceased was at that stage staying at 2[...] Z[...] Street, B[...],
Bethlehem. The Applicant
further alleges that the deceased donated
the property to her on the condition that she and her husband pay the
First Respondent’s
account in full in regards to the arrears
property in the amount of approximately R20,000.00. According to the
Applicant, she and
her husband did indeed pay the First Respondent’s
account as per agreement whilst they were residing on the property.
[11]
Referring to the documentation referred to above, the Applicant
confirms that the deceased made
an affidavit at the local Police
Station on 8 August 2001 and that the necessary forms to have the
property transferred were completed
at the offices of the First
Respondent. In this regard it needs to be mentioned that the
remainder of the documents relied upon
by the Applicant in this
regard, are two similar documents titled “Bethlehem
Transitional Local Council” which contain
the particulars of
the property concerned. On the first thereof, in the paragraph headed
as “Huurder” (Lessee), appears
the name of the deceased
and was indeed signed by the deceased on 8 August 2001. On the
second, which is a similar document, the
particulars of the Applicant
appears also under the heading “Huurder” (Lessee), this
document was then also signed
by the Applicant on same date. On the
first of these documents appear the word “staak op 2001-07-31”
and on the second
signed by the Applicant, appears the words “nuwe
verbruiker plaas balans”. A further document relied upon by the
Applicant
is an undated “Permit – Certificate of
Occupation” in respect of the property concerned, issued to the
Applicant.
[12]
According to the Applicant at the time when the affidavit was made by
the deceased in August
2001, she and her husband did not have the
funds at that time to pay for the transfer of the property. The
Applicant’s husband
apparently passed away on the 19
th
of June 2006 whereupon the Applicant was appointed as the Master’s
representative in his estate. She then approached a firm
of attorneys
to assist her in registering the property in her name whereas she and
her husband were married out of community of
property. According to
the Applicant, she inherited money from her late husband and that
made it possible for her to pay for the
transfer of the property.
From the letters of authority issued to the Applicant in respect of
her late husband’s estate,
it appears that the only assets
reflected in the inventory are indeed furniture to the value of
R22,000.00 as well as funds in
the amount of R20,352.47 in a Capitec
Bank account.
[13]
According to the Applicant, acting upon advice from her attorney, she
signed a “Declaration
and Acceptance of Donation” in
regards to the property concerned, on the 13
th
of January
2017.
[14]
Subsequent to this acceptance being signed by the Applicant,
Applicant’s present legal
representative, Mr N Theron from
Legal Aid South Africa, Bethlehem, wrote a letter to the Second
Respondent requesting him to sign
the necessary transfer documents in
respect of the property concerned within a stipulated period of time,
which he had refused
to do.
[15]
According to the Second Respondent, the deceased was his natural
mother. According to him he
is the sole heir in the deceased estate
of the deceased in terms of the provisions of
Intestate Succession
Act 81 of 1987
. Second Respondent denies that the deceased at any
stage donated the immovable property concerned to the Applicant.
Second Respondent
confirmed that the deceased was during her life
resident at 2[...] Z[...] Street, Bethlehem, Free State Province.
According to
the Second Respondent, at the time of his mother’s
passing, he did not have the financial means to take the necessary
steps
to be appointed as the Master’s representative and the
executor of his mother’s estate. He did not attend to the
transfer
of the property in his name as he did not want to occupy or
reside on the immovable property since his mother’s passing.
During 2019 he decided to sell the property as he finally decided
that he had no intention to reside on the immovable property
concerned. He then approached the Master during 2019 to be appointed
as the Master’s representative to transfer the property
in his
own name to enable him to sell the property after his appointment as
the Master’s representative.
Discussion
:
[16]
Both legal representatives appearing at the hearing, referred me to
the provisions of Section
5 of the General Law Amendment Act 50 of
1956 which stipulates the following:
“
No donation
concluded after commencement of this act shall be invalid merely by
reason of the fact that it is not registered or
notarially executed:
provided that no executory contract of donation entered into after
the commencement of this act shall be valid
unless the terms thereof
are imbodied in a written document signed by the donor or by a person
acting in his written authority
granted by him in the presence of two
witnesses.”
[17]
I was also referred to
Section 2(1)
of the
Alienation of Land Act 68
of 1981
which provides as follows:
“
No alienation
of land after the commencement of this section shall, subject to the
provisions of
section 28
be of any force or effect unless it is
contained in the deed of alienation signed by the parties thereto or
by the agents acting
on their written authority.”
[18]
As stated, the Second Respondent denies that any donation was made by
the deceased.
[19]
Mr
Noge
appearing on behalf of the Second Respondent, argued
that the sworn affidavit deposed to by the deceased does not meet the
requirements
of a valid contract of donation in that it was not
signed by two witnesses. This submission is not correct. According to
Section
5 of the General Law Amendment Act, a donation only needs to
be in writing and signed by the donor. Upon a proper consideration
of
Section 5 of the General Law Amendment Act, it is clear that the
requirement of two witnesses, only comes into play when such
written
document is signed by a person acting on the donor’s written
authority which authority has to be granted by him in
the presence of
two witnesses.
[20]
Mr
Noge
’s further submission that it was necessary for
the police official who commissioned the affidavit by the Applicant,
to make
a confirmatory affidavit to the contents of affidavit, also
does not hold water.
[21]
Whereas the affidavit of the deceased was indeed signed by her in her
capacity as donor which
is as required by Section 5 in a form of a
written document, this document is to be regarded as a valid contract
of donation for
purposes of Section 5 of the General Law Amendment
Act.
[22]
It was further argued on behalf of the Second Respondent, that the
alleged declaration of acceptance
of donation relied upon by the
Applicant does not constitute a valid document for transfer of
immovable property as it was accepted
after the donor had passed on
the 26
th
of April 2003. This argument however looses sight
of the document already referred to in terms of which application was
made on
the 8
th
of August 2001, being the same date as the
sworn affidavit by the deceased, which was signed by both the
deceased as well as the
Applicant in her capacity as beneficiary. By
implication, this is an indication that on the same date, the
Applicant already accepted
the donation by the deceased. This is
further confirmed by the wording in the further document titled
“Bethlehem Transitional
Local Council” containing the
particulars of the property concerned where the following wording
appears: “
Staak op 2001-07-31. Skenking
aangeheg in die lêer asseblief
”.
This
confirms that reference has been made to the donation which
apparently has also been accepted by the Bethlehem Transitional
Local
Council.
[23]
In regards to the condition relevant to the Applicant to the effect
that she and her deceased
husband was obliged to pay the amount of
approximately R20,000.00 in arrears, it can be accepted, although no
clear proof has been
provided that such amount has been paid. The
further document referred to already titled “Bethlehem
Transitional Local Council”
also dated the 8
th
of
August 2008 and signed by the Applicant, stipulates in particular:
“
Nuwe verbruiker plaas balans”
which lends support to the Applicant’s
allegation that such an amount has indeed been paid.
[24]
The fact that the document concerned as indicated refers to a Lessee
and not a Purchaser, as
pointed out, also makes sense whereas the
Applicant and her late husband were at that stage merely Lessees of
the property concerned.
[25]
The application for transfer of the property concerned, as stated was
also signed in the presence
of two witnesses whose signatures appear
on such document.
[26]
Of significance is that the Second Respondent only laid claim to the
property and was issued
the letters of authority by the Master after
he was requested by the Applicant to sign the necessary documentation
to effect transfer
of the property concerned. This is 16 years after
his mother passed away.
[27]
“…
It
must be borne in mind that, although it may be competent for a court
to make a declaratory order in any particular case, the
grant thereof
is dependent on the judicial exercise by that court of its discretion
with due regard to the circumstances of the
matter before it”
.
[1]
[28]
The Applicant seeks
inter alia
an order in terms of which she
is declared to be “the lawful and sole owner of the immovable
property”. It is clear
that as the property is currently not
registered in the name of the Applicant, that such declarator cannot
be made. The Court can
only make a declarator in regards to the
validity of the documentation relied upon by the Applicant.
[29]
The Applicant further
inter alia
seeks an order in the
following terms:
“
Ordering the
First Respondent to provide the Applicant’s attorney with the
name and all contact details, inclusive of cellular
number and e-mail
address of the official overseeing compliance with the order in
paragraph 3 above, within two written days of
this order;
In the event of the
First Respondent or Second Respondent’s failure to comply with
the order in paragraph 3 above within two
months of this order, that
the Sheriff, Bethlehem is authorised to forthwith take all necessary
steps and to sign all necessary
documents to effect registration of
the abovementioned property in the name of the Applicant and
thereafter to collect all fees
and disbursements in this regard from
the Second Respondent.”
[30]
The Applicant has not made out a case for such relief and are
therefore not entitled thereto.
In particular, in regards to the
Second Respondent, the Second Respondent as cited before Court, is
not before Court in his capacity
as representative of the Master. Any
steps to be taken by the Second Respondent needs to be done by him in
his capacity as such
and any order against him in his personal
capacity is therefore not competent in the present application.
[31]
The Applicant further seeks an order in terms of which the Register
of Deeds being the Third
Respondent, be ordered to cancel the Title
Deed in regards to the property and to cancel all rights accorded to
the Second Respondent
by virtue of the deed and/or any endorsements
thereto. In this regard a report by the Registrar of Deeds dated 20
August 2021 had
also been placed before me. In terms thereof “there
is no record or data on the name of the Second Respondent”.
Therefore,
an order in those terms also appears to be redundant.
[32]
As far as costs is concerned, in view of the fact that the Second
Respondent was successful in
opposing the application for the
declaratory order to the effect that the Applicant is to be declared
to be the lawful and sole
owner of the immovable property concerned,
whilst the Applicant was to a certain degree successful in her
application in that a
declaratory order (although in different terms)
was obtained, I deem it appropriate that each party is to pay its own
costs.
ORDER
:
Therefore,
I make the following order:
1.
It is declared that:
(i)
The sworn affidavit deposed to by the late Cecillia Maletsatsi
Motaung on 8 August 2001, is to be regarded as a valid
donation for purposes of Section 5 of the General Law Amendment
Act
50 of 1956;
(ii)
The Applicant is entitled to the transfer of the property known as
4[...]
B[...], Bethlehem, Free State Province also known as Erf
4[...] B[...], Bethlehem, in her name.
2. Each
party is to pay its own costs.
J
J F HEFER, AJ
On behalf of the
Applicant:
Mr N Theron
Legal Aid South
Africa
Bloemfontein
On behalf of the
Second Respondent:
Mr N Noge
Noge Attorneys
Phuthaditjhaba
c/o Matee Attorneys
Willows
Bloemfontein
[1]
Reinecke v Incorporated General Insurances Ltd
1974 (2) SA 84
(A) at
85C.