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[2023] ZAECBHC 16
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Manyifolo v Buffalo City Metropolitan Municipality and Others (702/2021) [2023] ZAECBHC 16 (20 July 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, BHISHO]
CASE
NO.: 702/2021
In
the matter between: -
MVULENI
MANYIFOLO
APPLICANT
and
BUFFALO
CITY METROPOLITAN MUNICIPALITY
1
ST
RESPONDENT
NOMAKHAYA
MINI
2
ND
RESPONDENT
DEEDS
REGISTRY, KING WILLIAMS TOWN
3
RD
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
The applicant seeks an order to have a deed of transfer dated 11
April 2016 made by the first
respondent in favour of the second
respondent, declared unlawful and invalid. He also seeks a
cancellation of the deed of transfer
and other ancillary relief.
[2]
For the sake of completeness the relief
sought is recorded in the notice of motion as follows:
“
1.
That the deed of Transfer dated the 11
th
April
2016 under T18[...] in favour of the 2
nd
respondent be and is hereby declared unlawful, invalid and set aside;
2.
that the 3
rd
respondent be and is hereby directed and
ordered to cancel the deed of transfer T18[...] registered in favour
of the 2
nd
respondent (Nomakhaya Mini Identity Number)
over ERF 3[...] within four weeks from the date of this order
having been served
upon him in terms of section 6(2) of the Deeds
Registry Act No 47 of 1937;
3.
that the applicant be and is hereby declared the owner of the
property known as ERF 3[...]
, situated at T[...] Central, Bhisho;
4.
that the 3
rd
respondent be and is hereby ordered and
directed to register the applicant (Mvuleni Manyifolo Identity
Number) as the owner of
the property known as ERF 3[...] , situated
at T[...] Central, Bhisho;
5.
that the 1
st
respondent be and is hereby ordered and
directed to pay costs of this application, such costs to be on a
party and party scale,
unless in the event of him opposing this
application in which event, the 1
st
respondent shall pay
costs on an attorney and client scale;
6.
there shall be no order of costs against the remainder of the
respondent unless in the event
of them opposing this application, in
that event costs shall be sought against them on an attorney and
client scale;
7.
such further and or alternative relief as the above honorable court
may deem fit.”
The
parties
[3]
The applicant describes himself as an adult
male person who is presently residing at ERF 3[...] T[...]
Central in the district of Bhisho, Eastern Cape.
[4]
The first respondent is the Buffalo City
Metropolitan Municipality (the municipality) that has offices
at 117
Oxford Street, East London. The municipality is cited as the entity
that signed a special power of attorney for the transfer
of allegedly
the applicant’s property to the second respondent against the
applicant’s will and without his knowledge.
[5]
The second respondent is Ms Nomakhaya Mini. She is the registered
owner of ERF 3[...] T[...]
Central in Bhisho. It is the deed of
transfer in relation to this property that the applicant seeks to
cancel. The applicant also
seeks a costs order against the second
respondent only if she opposed the application.
[6]
The third respondent is the Deeds Registry
situated at 113 Alexandra Road, King Williams Town. The
relief sought
against this respondent relates to registration of the property as
indicated in prayers 2 and 4 of the notice of
motion, above.
Applicant’s
case
[7]
The applicant stated that:
7.1
During 2002, he, together with his wife bought a vacant site from a
certain Mr Witbooi. At that time
the area was under the control of
traditional leaders and there were no title deeds to those sites.
After buying the site from
Mr Witbooi, he developed it, and erected
one four-roomed house with thirteen flats (the property) which they
let out for rental
and thus generated income. In 2008 the couple
separated. The second respondent showed interest in buying the
property.
7.2 He
informed the second respondent that indeed he was selling the
property. Whilst he was waiting for the second
respondent to
pay the purchase price, the second respondent made sexual advances
towards him. He rejected her. The second
respondent undertook
to pay him R20 000 as the purchase price. She failed to
pay it instead she informed him that she
will pay the money to a Mr
Mrara who will in turn pay the money over to him. The second
respondent also requested the applicant
to depose to an affidavit to
acknowledge that the applicant had received the purchase price and
also confirm the sale between the
two of them. He alleged that Mr
Mrara prepared the affidavit and he signed it.
7.3.
The affidavit referred to recorded the following:
“
AFFIDAVIT
I, Mvuleni Manyifolo
I.D…. residing 3[…] T[...] Village. The place in which
I am residing, I bought it from the late
Mr V. Witbooi in 2002 for
R8000.00. I am returning at Mthatha at Ncisa Administrative area.
I am now selling the
property to Nomakhaya Mini I.D. …for R45 000.00 who
resides at the same area. I am not in a possession
of Title deed as
thec area has been recently established as a township and property
registration still underway. The affidavit
made will assist the
current occupant to register the property on her name.
The money paid in cash
to me.
OWNERS NAME: M.
MANYIFOLO
SIGNATURE: (signed)
10/09/08
WITNESS: (signed)
10/09/08
I, Nomakhaya Mini ID…,
bought the four (4) roomed house with flats from Mr M. Manyifolo for
R45 000- 00. I understood
the absence of Title Deed and the
affidavit given above advocate the sale agreement.
PURCHASER: N. MINI
(signed) 10/09/08
WITNESS (signed)
10/09/08”
(All identity numbers have been omitted
)
7.4
At the time he was selling the property to the second respondent, the
municipality was in the process
of zoning the area and allocating the
sites to various people. Some were receiving title deeds in
respect of those properties.
When he demanded same, Mr Mrara simply
made promises that he would get his title deed but failed to do so.
When he realized
that the money was not forthcoming from Mr
Mrara, he cancelled the sale and retained his property. The money
remained with Mr Mrara.
He then informed the second respondent that
he had cancelled the sale agreement.
7.5
During the same period he also received a house in terms of the Rural
Development Project (RDP) as a
subsidy without having applied for it.
He kept the RDP house. On 30 June 2009 he, together with his wife,
were called to the municipality
offices where they met the second
respondent. At that meeting they were advised that they had received
the RDP house in a fraudulent
manner. The entire property including
the RDP house was then given to the second respondent. She was also
given a deed of transfer
which had been prepared in her favour. The
applicant contends that the site belongs to him and that only the RDP
house should have
been given to the second respondent. He further
contends that the transfer of the entire property to the second
respondent was
done without his consent.
7.6
He alleged that the statement of rates for the property from the
first respondent still reflects Mr
Witbooi. He purported to attach
Annexure “MM4” which does not appear anywhere on the
papers. The second respondent
applied for his eviction from the
property. The order was granted by the Magistrate sitting in
Zwelitsha. He accused the second
respondent of fraud in that she, on
the one hand, stated that she bought the site from the municipality
and on the other hand she
said she bought the site from him. He
sought an order for costs against the first respondent on the basis
that the first respondent
transferred and registered his property in
the name of the second respondent in a manner that was not
appropriate.
7.7
The applicant relied on the document quoted above. He also
attached a document headed ‘
Minutes of housing disputes
meeting between Manyifolo and Ms Mini held at Bhisho Planning
boardroom on 30 June 2009 at 9h00’
. It appeared from the
minutes that the applicant, together with his wife, and the second
respondent were present at the meeting.
It is recorded further that
the applicant visited the offices for the housing department in King
Williams Town. He requested that
his name be removed as a beneficiary
in respect of the property and that it be replaced with that of the
second respondent. He
informed Mr Mrara that the reason for that was
because he was going back to the former Transkei and did not want to
be denied the
opportunity to get a housing subsidy.
7.8
He then proceeded to the finance section where he, together with the
new owner, the second respondent,
went to pay a reconnection fee so
that she could receive the municipal accounts. It was conveyed to Mr
Mrara’s offices that
a payment of R30 000 had been made by
Ms Mini in respect of the property.
7.9
Mr Manyifolo further stated that he went to the Department of Home
Affairs (Home Affairs) with Mr Mrara
because at that time he had
applied for a subsidy and was not successful. He discovered then that
according to the records kept
at Home Affairs, he was deceased. He
disputed that and requested that Home Affairs should rectify the
mistake. It is further recorded
on the minutes that his wife Mrs
Manyifolo confirmed that : she was married to him and that she had
two identity documents which
were both active ; she was employed by
the provincial government and was earning a salary that is above the
qualifying subsidy
bracket; she received R15 000 from Old Mutual
which was paid in respect of her ‘deceased husband’,
the applicant;
and she approached the applicant and demanded payment
of some of the money that was paid for the property by the
second respondent.
7.10
The title deed for the property in question reflects the second
respondent as the owner. It also shows that
the property was
transferred by the municipality, as the previous owner, to her.
Second
respondent’s case
[8]
The second respondent opposed the application. She denied that the
applicant was ever the owner
of the property in question. She stated
that the property was the registered property of the municipality
prior to it being lawfully
transferred to her. She confirmed that
there was an eviction order that she sought and obtained, however,
the applicant refused
to vacate the property. She complained that the
application was brought some twelve years after the conclusion of the
agreement.
The applicant had failed to bring a condonation
application and advance reasons for bringing the application outside
the one hundred
and eighty (180) days provided in the Promotion of
Access to Justice Act (PAJA).
[9]
She also raised the fact that the applicant’s claim to the
property had prescribed. She
also contended that the applicant knew
that he did not own the property when he sold it to her. She believed
him to be the lawful
owner. She also stated that the allegation that
the applicant bought the property from a certain Mr Witbooi was not
true. The reason
for stating so was because Mr Witbooi was never
found although the applicant had promised that he would bring him as
a witness.
She concluded that in any event the applicant could not
have lawfully purchased the property from a Mr Witbooi because the
property
belonged to the municipality. She confirmed that she paid
R30 000 to the applicant and the agreement was that she would
pay
the balance of the purchase price once she occupied the property.
[10]
She denied that she ever made any sexual advances towards the
applicant and took offence to those allegations.
She disputed the
allegations that she was going to pay the purchase price to Mr Mrara,
who was going to pay it over to the applicant.
She attached an
affidavit which the applicant had filed in resisting the eviction
application. The second respondent
contends that the
allegations that the applicant made therein are contradictory to
those that he made before this court. This court
discovered that this
affidavit was not complete and it requested the representatives of
the applicant to make a full copy thereof
available to court. A full
copy was made available on 13 July 2023. I shall deal with the
contents thereof later in this judgment.
[11]
She submitted that the municipality had conducted extensive
investigations into the allegations relating
to the ownership of the
property. It then allocated it to her, hence it was registered in her
name in 2016. The applicant failed
to pay back her deposit of
R30 000. She challenged the applicant to produce proof that he
once owned the property. She stated
that in the affidavit filed in
respect of the application for leave to appeal the applicant had
contended that he had minor children
who would suffer once he is
evicted and they would remain homeless. She stated that this was
untrue because the applicant had no
minor children living with him.
She stated that the applicant has four children. Three of his
children live in Cape and a nineteen
year old daughter, a student,
lives with her mother, the applicant’s former wife, who lives
at a different address in T[...]
Village. She asked for the
application to be dismissed with costs because the applicant has not
been candid with the court.
[12]
The report attached by the municipality prepared by Mr LM Mrara
demonstrates that the property belonged to
and was registered in the
name of the municipality. After conducting investigations, they
found that Mr and Mrs Manyifolo
did not qualify for a government
subsidy. The municipality had to decide who should be the
beneficiary. It was decided that the
second respondent qualified for
an RDP house and it was accordingly awarded to her.
[13]
In reply, the applicant denied that his claim to the property had
prescribed on the basis that prescription
in relation to land runs
after a period of thirty years. He conceded that the best proof of
ownership in respect of the immovable
property is a title deed. He
also conceded that he did not have one. He contends that the only
property that the second respondent
is entitled to is the RDP house.
[14]
The applicant filed his replying affidavit eleven (11) months after
the answering affidavit was filed. In
the replying affidavit he
sought condonation for the delay.
Reasons
for the delayed replying affidavit
[15]
The applicant stated that on 6 October 2021 his
attorneys of record received a notice to oppose the matter
from the
first respondent. Subsequently, the first respondent’s
attorneys approached his attorneys with intentions to settle
the
matter.
15.2
The reasons that the applicant advances for the delay are that the
answering affidavit was filed on 28 September
2021. A period of ten
days for filing of the replying affidavit lapsed on 12 October 2021.
According to the applicant, the delay
in filing the replying
affidavit was 11 months.
15.3 The
first respondent’s attorneys sought indulgence to file their
answering affidavit by 12 November 2021.
On 12 November 2021 the
first respondent’s attorneys informed his attorneys that they
had not yet consulted and they requested
a further indulgence until
12 December 2021. On 12 December 2021 they advised his attorneys that
they were negotiating a possible
settlement of the matter and
requested that the matter be put in abeyance until the resolution of
the dispute.
15.4 On 30
January 2022 his attorneys enquired from the first respondent’s
attorneys as to what the position
was in relation to the matter and
the resolution thereof. He stated that he was also awaiting a report
from the third respondent
because his attorneys had indicated that it
was a very important report. He stated that throughout the
proceedings, the first respondent,
was promising that they were
trying to find another place for one of the parties who was willing
to take it so that the dispute
can be resolved.
15.5 During
March his attorneys of record informed the first respondent’s
attorneys that the second respondent
had filed her answering
affidavit and that the applicant needed to file a replying affidavit.
The attorneys for first respondent
further sought another indulgence
until 31 May 2022 when they indicated that they were going to file a
notice to abide. On 31 May
2022, the first respondent’s
attorneys informed the applicant’s attorneys that they were
still awaiting for the housing
officer who was on leave and would
only report for duty in July 2022. During the month of July 2022 his
attorneys were trying to
make contact with the first respondent’s
attorneys without success.
[16]
On 1 August 2022 he received a link for a virtual meeting with his
attorneys which was scheduled for 2 August
2022. A virtual
consultation was indeed held on 2 August 2022 with his attorneys. On
5 August 2022, he was advised that the affidavit
had been finalized
and that he was supposed to make himself available on Tuesday, 9
August 2022, to sign it. On Monday, 8 August
2022, he fell sick and
could not attend to the signing of the affidavit. He recovered
from the illness on 27 August 2022,
although not fully. During the
week of 31 August 2022, he called his attorneys to arrange a date for
signing of the affidavit.
[17]
On 7 September 2022, the sheriff of the court came to evict him from
the property. He spent the better part
of that week looking for a
place to stay. He submitted that non-compliance with the rules of
court was not deliberate. He contends
that these were matters that
were beyond his control. He submitted that the matter is very
important because it involves his constitutional
right to property
and shelter. He submitted that should the court refuse condonation
that would mean that the court would be closing
the doors at him and
would be depriving him of his right to be heard in the matter. He
contends that he is homeless because the
second respondent evicted
him from the property.
[18]
He submitted that the other respondents stand to suffer no prejudice
because the dispute dates back years
ago and the second respondent
has been surviving using the property in question. He is the one who
depends on the property solely
and not the second respondent. He
sought the relief in terms of the notice of motion.
Title
Deed
[19]
A report dated 28 March 2022, from the Registrar
of Deeds, sitting in King Williams’ Town recorded
that the
property is indeed registered in the name of the second respondent.
The property is unencumbered. According to the title
deed it is shown
that the property was sold by the municipality to Ms Mini for an
amount of R8 169.31. The Registrar also
confirmed that there are
no immovable properties registered in the applicant’s name.
There were no interdicts noted
against the property mentioned.
Applicant’s
submissions
[20]
Mr Gxumisa appeared for the applicant. He relied on the provisions of
section 25 of the Constitution for
the contention that the applicant
has a guaranteed right to property and that no one may be deprived of
property except in terms
of law of general application. He further
submitted that the applicant was the true owner of the property and
the registration
to the second respondent was fraudulent.
[21]
He submitted that there was an agreement between
the parties and when it was cancelled then his client was
entitled to
have the property registered in his name. When the court enquired
about the ‘deceased status’ of the applicant,
his
submission was that it is common cause that the applicant was
declared dead by the Department of Home Affairs and that he could
not
take that issue any further. He submitted that the only thing that
did not belong to the applicant was the RDP house. Should
the court
be with the applicant, he should be entitled to costs, he argued. He
submitted that the applicant should benefit from
the
Biowatch
principle because he is protecting his constitutional right to
housing.
[22]
The applicant did not advance legal arguments except his reliance on
section 25 of the Constitution which
I have referred to. There is not
a single legal authority upon which the argument was based either in
the applicant’s heads
or before this court. Mr Gxumisa ,
however, correctly conceded that there were allegations of fraud
which featured in the application
against the applicant and his wife.
The
first respondent’s argument
[23]
Mr Maseti appeared for the first respondent. The first respondent did
not file any answering affidavits but
simply dealt with the points of
law. It raised the point that it could not file an answering
affidavit because the founding affidavit
is non-existent since it was
not commissioned by a Commissioner of Oaths and thus it was fatally
defective. In this regard, he
submitted that the Court can only
exercise its discretion to condone non-compliance with regulations 1
to 4 of the regulations
governing the administering of an oath or
affirmation, published in terms of section 10 of the Justices of the
Peace and Commissioners
of Oath Act, 1963 (‘the regulations’)
where there has been an attempt to commission an affidavit and there
has been
substantial compliance with the said regulations.
[24]
He submitted that in this case there has been no attempt at all on
the part of the applicant to have the
affidavit commissioned. He
relied on the unreported judgment of this Court in
Cibi
and Others v Public Service Commission & Others
[1]
where the Court stated:
‘
It is stated
law that the court retains a discretion to refuse an affidavit which
does not comply with the Regulations, such Regulations
being
directory rather than peremptory. It remains a question of fact in
each individual case as to whether or not there has been
a
substantial compliance with the Regulations promulgated in terms of
the Justice of the Peace and Commissioners of Oath Act 16
of
1963.’
[25]
He further referred the Court to
S
v Msibi
[2]
. He also relied on
Mndiyata
& Others v Umgungundlovu CPA & Others
[3]
where
the court dealt with the commissioning of an affidavit. He submitted
that in that case the court raised the issue that the
gender of the
deponent was female instead of the male:
‘…
It will
be noted that the word “she” forms part of the pre-typed
document that must have been placed before the Commissioner.
If the
Commissioner had, for instance, personally written the word “she”
in the attestation clause, it could have made
for a stronger case for
the applicants. It is, therefore, clear that this must have been an
error on the part of the Commissioner.’
[26]
He submitted that on this basis alone this court should refuse the
application with costs and that the applicant
should be ordered to
pay punitive costs. He submitted that the
Biowatch
principle
does not extend to the applicant because the applicant had been found
to have been untruthful.
Second
respondent’s argument
[27]
Mr Mdladlamba appeared for the second respondent. The second
respondent raised a point
in limine
that the applicant ought
to have reviewed the administrative decisions taken by the first
respondent if he was dissatisfied. In
this regard, he relied on the
provisions of section 7(2) of PAJA, that applicant ought to have
brought a review application within
the period prescribed in PAJA. He
further submitted that the applicant launched the application knowing
that there was a dispute
of fact between the parties which dispute
made the matter incapable of resolution without evidence being led.
[28]
He submitted that the disputes of fact are immaterial and that the
final relief can only be granted if the
facts deposed to by the
respondent read together with undisputed facts deposed to by the
applicant justify the order. In this regard,
he relied on the
Plascon
Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd
[4]
.
[29]
He also relied on the Alienation of Land Act 68 of 1981 (Land Act)
for the submission that in terms of section
2(1) which provides ‘
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 a deed of alienation signed by the parties
thereto or by their agents acting on their written
authority.’
He submitted that even if there was such an agreement between Mr
Witbooi and the applicant as he alleged, it was of no force and
effect because it was never reduced into writing.
[30]
He stated that the issue to be decided is whether the applicant has
been able to demonstrate that he holds
ownership rights in the
property entitling him to the final relief that he is claiming. He
submitted that where there are disputes
of fact the court must
resolve those disputes based on the respondent’s version. He
submitted that the applicant failed to
show that he was deprived of
his property by the first respondent. He also failed to show
that the transfer to the second
respondent was unlawful. He submitted
that on all those bases, the application should be dismissed with
costs.
Discussion
Condonation
[31]
The application for condonation is located towards the end of the
replying affidavit and is not accompanied
by a notice of motion.
It is common practice that the respondents do not have an automatic
right of reply to a replying affidavit.
In fact, the Uniform Rules of
Court do not make provision for that unless a party applies to court
and is permitted to file further
affidavits
[5]
.
[32]
There are several difficulties with the condonation itself. First,
the applicant’s replying affidavit
was filed way out of time.
On his version, the replying affidavit, was filed after some eleven
months. The applicant, having been
advised by his legal
representatives that the replying affidavit was out of time failed to
bring a substantive application for
condonation. It sought to bring
an application for condonation in the replying affidavit.
[33]
A replying affidavit is, in terms of Rule 6, to be filed ten days
after receipt of the answering affidavit.
Condonation for the late
filing of any court process is not something to be taken lightly.
First, the applicant must have been
aware that respondents have no
right to reply to his replying affidavit. Second, by immersing a
condonation application in the
replying affidavit, the applicant,
deprived the respondents of an opportunity to oppose the condonation
application and file opposing
papers to it. Third, he failed to
properly seek an order for condonation because no proper condonation
application accompanied
by a notice of motion, was brought. Fourth,
no argument was made in relation to condonation by the applicant’s
counsel and
it is not even addressed in his heads of argument.
[34]
When a party is obliged to make a condonation application there are
certain requirements that the applicant
must meet. A full explanation
for the entire duration of the delay must be placed before the court.
In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development Company
Ltd& Others
[6]
the
Supreme Court of Appeal when dealing with an application for
condonation had this to say:
“
[12]
In Uitenhage Transitional Local Council v South African Revenue
Service
[7]
this Court stated: one would have hoped that the many admonishes
concerning what is required of an applicant in a condonation
application would be trite knowledge among practitioners who are
entrusted with the preparations of appeals to this Court; condonation
is not to be heard merely for the asking; a full, detailed and
accurate account of the causes of the delay and their effects must
be
furnished so as to enable the court to understand clearly the reasons
and to assess the responsibility. It must be obvious that
if the
non-compliance is time related then the date, duration and extent of
any obstacle on which reliance is placed must be spelled
out.’
[35]
Similarly, in this case, there are some gaps in relation to facts
that have not been placed before this court.
The suggestion that
there were overtures on the part of the first respondent to have the
matter settled is not supported by any
correspondence. There is no
confirmatory affidavit from the applicant’s attorney of record.
It would have been expected of
him to confirm the interactions with
the first respondent’s attorneys. In any event, the alleged
requests for indulgence
were not made to the applicant directly but
were allegedly between his attorneys and those of the first
respondent. This information
was placed in a document that cannot be
replied to by any of the parties and were thus deprived of an
opportunity to consider and
oppose same.
[36]
I find that the delay of 11 months is inordinate. I have alluded to
the fact that there is no full and detailed
explanation. However, the
first and second respondents did not invoke any of the rules to, for
instance, have the replying affidavit
struck out due to its lateness.
They were content to have the matter disposed of. The dispute
raised is important to both
parties. I am of the view that it is in
the interests of justice to condone the late delivery of the replying
affidavit.
The
attestation point raised by the first respondent
[37]
The first respondent did not file an affidavit or a notice
where it took the objection. It was submitted
on its behalf that it
was not necessary to do so because the affidavit was a nullity. I
allowed argument to be advanced on behalf
of the first respondent
because it had filed heads of argument ahead of the hearing of the
matter. The point taken in relation
to the applicant’s
affidavit were raised after the applicant had filed his heads of
argument, on 7 June 2023. It was also
raised after the second and
third respondents had filed the answering affidavit and the reports,
on 28 September 2021 and 28 March
2022, respectively. Those
respondents who were actively participating in the litigation did not
take issue with the affidavit.
The first respondent delivered its
heads of argument raising the point on 08 June 2023. The first
respondent’s notice to
oppose is dated 6 October 2021. For a
period of over a year, the first respondent remained supine.
[38]
As a result of the stance taken by it, litigation progressed to a
stage where the matter was set down
for argument. The second
respondent who is directly affected by the relief sought did not
object to the founding affidavit and
did not associate herself with
the objection raised by the first respondent, even in argument.
Litigation is very costly
for all the parties. First prize for
the court it to deal with the dispute and resolve it as soon as
possible. This matter
has a long history and dismissing the
application on the point raised by the first respondent will not be
just.
[39]
The fact that the applicant stood by what he stated in
the now challenged founding affidavit, in his replying
affidavit,
fortifies my view that the late intervention by the first respondent
does not add value to the resolution of the dispute
between the
parties. The manner in which the objection was raised did not
afford any of the parties an opportunity to react
to it.
[40]
Rule 6 (5)(d)(iii) provides:
(iii) if he intends to
raise any question of law only he shall deliver notice of his
intention to do so, within the time stated
in the preceding sub-
paragraph, setting forth such question.
[41]
The preceding paragraph referred to, above, reads:
“
(ii)
within fifteen days of notifying the applicant of his intention to
oppose the application, deliver his answering
affidavit, if any,
together with any relevant documents; and
(iii)
(quoted above)”
[42]
In
Absa
Bank v Bota N.O
[8]
,
the
court found that the application for summary judgment constituted an
irregular proceeding, which fell to be set aside on the
grounds that
the plaintiff’s verifying affidavit was not an affidavit.
[43]
Non-compliance with the provisions of the regulations is not
mandatory but directory. In this case there has been
substantial compliance with the regulations. It is on this basis that
condonation for non- compliance should be condoned. All the
parties
were ready to proceed and had filed heads of argument, justice
demanded that the matter should be finalized. To the extent
necessary, the non – compliance with the regulations, is hereby
condoned.
Applicant’s
lack of candour
[44]
When a person approaches court for anything ranging from personal,
commercial or constitutional claims, he
must do so with absolute
honesty.
[45]
There are certain facts that raise suspicions about the applicant’s
candour in launching these proceedings.
The applicant contends in the
‘condonation application’ that he was homeless. However,
in paragraph 1 of the replying
affidavit he put in as introduction
the following:
‘
I am an adult
male person presently residing at ERF 3[...] , T[...] Central in the
district of Bhisho, Eastern Cape. I am the applicant
in the matter
and the deponent to the founding affidavit and thus deposed to this
affidavit to deal with the answering affidavit
deposed to by the
second respondent.’
[46]
The applicant alleged that he was caused to sign an affidavit by a Mr
Mrara confirming the sale of the property
to the second respondent.
Although he denied that there was a sale where he was paid an amount
of R30 000.00, he does
not deny that he went to the first
respondent for the transfer of the municipal account to the second
respondent.
[47]
According to a memorandum prepared by the senior legal
advisor of the first respondent, Mr M Mlotana,
the applicant
was advised at a meeting held on 30 June 2009 at the first
respondent’s offices that the property in question
still
belonged to the first respondent because it was never transferred to
any of the parties who were involved in the dispute.
At
that meeting the applicant also confirmed that he sold the property
to the second respondent and received an amount of R30 000,00
from her.
[48]
The second respondent’s evidence as recorded
in her answering affidavit is consistent with the minutes
attached to
it by her and also the minutes attached to the applicant’s
founding affidavit. In those minutes the amount of
R30 000.00
that was paid to the applicant by the second respondent is confirmed,
the details of the purchaser, full names,
identity number and the
details of the erf
, to wit
, ERF 3[...] are clearly
recorded. The applicant relied on these minutes of the meeting
of 30 June 2009 and had attached
a copy thereof to his founding
affidavit.
[49]
The applicant also attached to the founding affidavit,
an affidavit deposed to by the second respondent
in eviction
proceedings under case no. 148/2020. That affidavit,
demonstrated at paragraphs 7.1 to 7.5, that the second respondent
had
been consistent throughout in her version. It confirms the evidence
of the second respondent in how the applicant sold the
property to
her, how much she paid for it, the erf number and the fact that the
actual owner of the property, the first respondent,
transferred it to
her on 30 May 2016.
[50]
The applicant, on the other hand, has not been candid with this
court. In the proceedings under case number
CA16/2021, the applicant
deposed to an affidavit on 13 July 2021 wherein he stated:
“
8.
During 2002 I bought a piece of land situated at ERF 3[...] , T[...]
Central, Bhisho from Witbooi with
a shack in it. We then developed
the land and erected 13 flats for rentals so that we can generate
income out of them.
9.
We were also residing in those premises until 2008, I decided to sell
the premises to our
neighbor, but whilst still on the process my wife
intervened and told the 1
st
respondent that the property
is not for sale. Because I was frustrated by her, accepted the monies
from the 1
st
respondent who then later refused to pay the
balances and I then cancelled the agreement between myself and the
1
st
respondent and returned her monies and retained my
property.”
[51]
Those allegations are contrary to what the
applicant stated at paragraphs 14 to 17 of the founding affidavit
where he stated:
“
14.
Having told her, the 2
nd
respondent said she
will give me R20 000-00 in respect of the purchase price of the
site, whilst still waiting for the purchase
price of the site, the
respondent told me that she has spoken to someone in the
establishment of the 1
st
respondent in the
housing department (one certain Mr Mrara).
15.
The 2
nd
respondent advised me that I will get my money
from Mr Mrara, but before I could get my money from Mr Mrara, the 2
nd
respondent requested me to make an affidavit acknowledging that I
have received the purchase price and also acknowledge that I
am
selling the property to her. The affidavit was prepared by this Mr
Mrara and I was caused to sign same. The copy of the affidavit
is
annexed hereto marked “
MM 1”.
16.
At the time I was selling the property to the 2
nd
respondent, the 1
st
respondent was already zoning the area
and people were getting title deeds in respect of their properties,
and applied for same,
but I was never furnished with it. When I
demanded same, Mr Mrara of the 1
st
respondent would inform
me that it is coming.
17.
Having seen that the money was not forthcoming, I cancelled the sale
and retained my property and the
money remained with Mr Mrara, I
informed the 2
nd
respondent that I have cancelled the sale
agreement. I must also mention that whilst all this was happening,
our village was given
RDP house subsidy including myself even though
I never applied for it and I told myself that since everyone in the
village was
given the RDP house I should not question anything about
it.”
[52]
Evidence given under oath in an affidavit is accorded the same weight
as evidence given
viva
voce
in
court. It must be truthful. Annexure “MM1” attached
to the applicant’s founding affidavit is consistent
with the
second respondent’s averments that she paid R30 000.00 to
the applicant. It also evinces an agreement
between the
applicant and the second respondent. In the affidavit under Case No.
CAS 16/ 2021, the applicant confirmed receipt
of monies from the
second respondent in respect of the sale of the property. I
must accordingly reject the applicant’s
version in this
regard
[9]
.
Was
the property owned by the applicant?
[53]
As aforementioned, the applicant put up “MM1”
as a document that he signed, although he stated
that, he was caused
to sign it by Mr Mrara. He has not put up any document as proof
that he owned the property. The deed
of transfer shows that the
property was owned by the municipality. The registrar of deeds had
reported that the applicant does
not own any immovable property. The
municipality was therefore entitled in law to dispose of the property
as it wished. It
appears that the applicant purportedly sold a
property that did not belong to him. If he built the flats on a
property that he
did not own, he may explore other legal avenues, but
he does not have a right to have the deed of transfer cancelled.
[54]
The sale, exchange or donation of land is governed
by the Alienation of Land Act, 68 of 1981 (the Land Act).
The
Land Act provides for certain formalities that must be adhered to
when one wishes to dispose of land. Section 2(1) provides:
“
2. (1)
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 a deed of alienation signed by the
parties thereto or by
their agents acting on their written authority.”
[55]
The Land Act also makes provision for instances
where the alienation of land is invalid or terminated.
In this
regard the Land Act provides in section 28(2) as follows:
“
Any alienation
which does not comply with the provisions of section 2 (1) shall in
all respects be valid ab initio if the alienee
had performed in full
in terms of the deed of alienation or contract and the land in
question has been transferred to the alienee.”
[56]
In
casu
, the situation contemplated in
section 28 (2) does not arise because the property did not belong to
the applicant in the first
place and he was never authorized to sell
it. He had no right in law to alienate it. The applicant
failed to prove
that, first, he owned the property and second, that
the municipality alienated it to the second respondent unlawfully.
The evidence
placed before me demonstrates that no case is made out
for the relief sought.
[57]
Although the second respondent had raised certain points in
limine
such as non-compliance with the provisions of PAJA and prescription
of the applicant’s claim, this court did not deem it
necessary
to deal with those points because of the approach adopted in dealing
with the merits of the matter.
Costs
[58]
The general rule is that costs follow the result.
Mr Gxumisa submitted that the Biowatch
[10]
principle must be applied in this case. Both respondents disagreed.
The applicant has not been candid in the evidence he placed
before
this court. The property in question was never his to sell and he
should not have ‘sold’ it to the second respondent.
He still retains the monies paid to him by the second respondent. To
invoke the
Biowatch
principle
in these circumstances would undermine the rationale behind the
principle, that of ensuring that when people approach
courts to
vindicate their rights, they should not be mulcted in costs.
The applicant had no constitutional right to protect
in these
proceedings and he should bear costs of the application.
59.
I accordingly make the following Order:
1.
The application is dismissed with costs.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on:
13 June 2023
Judgment
Delivered on:
20 July 2023
APPEARANCES:
For
the APPLICANT:
MR
GXUMISA
Instructed
by:
M.
NZIMA ATTORNEYS INC.
NO.
21 OWEN STREET
MTHATHA
CELL:
072 130 4772
EMAIL:
brnzima2@gmail.com
REF:MR
NZIMA
c/o:BAKUMENI
ATTORNEYS
NO.19
LEOPARD STREET
KING
WILLIAMS TOWN
For
the 1
st
RESPONDENT:
MR
MASETI
Instructed
by:
MAKHANYA
ATTORNEYS
SUITE
201, 2
ND
FLOOR
WERNERS
BUILDING, ARGYLE STREET
EAST
LONDON
TEL:
043 742 3049
EMAIL:
Makanyaelias70@gmail.com
c/o:POTELWA
INC.
17
ARTHUR STREET
KING
WILLIAMS TOWN
For
the 2
ND
RESPONDENT:
MR
MDLADLAMBA
Instructed
by:
LEGAL
AID SOUTH AFRICA
KING
WILLIAMS TOWN
2
ND
FLOOR, OLD MUTUAL BUILDING
CATHCART
STREET
KING
WILLIAMS TOWN
EASTERN
CAPE
TEL:
043 704 4700
EMAIL
:NicoleKM@legal-aid.co.za
REF:
Nicole Mitchell/x894080121
For
the 3
RD
RESPONDENT:
DEEDS
REGISTRY
113
ALEXANDRA ROAD
KING
WILLIAMS TOWN
[1]
[2022] ZAECMKHC 44 28 July 2022 para 19.
[2]
1974 (4) SA 821 (T).
[3]
(1606/20) [2021] ZAECMHC 6 (28 January 2021) para 14.
[4]
1984 ZASCA 3
SA at 634 H – 635 C.
[5]
Rule 6 (5) (e) provides: “
(e)
Within 10 days of the service upon him of the affidavit and
documents referred to in sub- paragraph(ii) of paragraph (d) of
subrule (5) the applicant may deliver a replying affidavit. The
court may in its discretion permit the filing of further
affidavits
”.
[6]
(619/12)
[2013] ZASCA 5
[2013] 2 ALLSA 251
(SCA) 11 March 2013.
[7]
2004 (1) SA 292
(SCA) para 6.
[8]
2013 (5) SA 563
(GNP) para 17.
[9]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 ZASCA (3) SA
at 634 H – 635 C.
[10]
Biowatch
Trust v The Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC).