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[2010] ZASCA 100
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Mathavha NO v Sibeko (515/2009) [2010] ZASCA 100 (7 September 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
No precedential value
Case No: 515/2009
In
the matter between:
ROSEMARY
M MATHAVHA NO Appellant
and
ZIBA
SIBEKO Respondent
Neutral
citation:
Mathavha v Sibeko
(515/09)
[2010] ZASCA 100
(7
September 2010)
Coram:
Conradie,
Maya, Shongwe, Tshiqi JJA and K Pillay AJA
Heard:
24
August 2010
Delivered:
07
September 2010
Summary:
Sale of land – first sale found to
be valid – second purchaser bought and took transfer of
property with knowledge of
first sale -- ordered to transfer property
to estate of first purchaser.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (Preller J sitting as court of first instance):
The appeal succeeds with
costs. The order of the court
a quo
is set aside and replaced
by an order reading as follows:
‘
1. The sale
agreement between the Municipality and the deceased dated 18 November
2000 and annexed to the particulars of claim is
declared to be valid;
2. The respondent is
directed to take all necessary steps to transfer erf 1577, Extension
9, Lebohang, Leandra to the estate late
M M Ramarope.
3. In the event that the
respondent fails to take such steps, the deputy sheriff is authorised
to sign all necessary documents
and take all other necessary steps to
ensure the transfer of erf 1577 Lebohang to the estate late M M
Ramarope.
4. The respondent is to
pay the costs of the application.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CONRADIE
JA (MAYA, SHONGWE, TSHIQI JJA and K PILLAY AJA concurring)
[1] The appellant is the executor of the estate late M M
Ramarope (the deceased) who on 18 November 2000 concluded with the
predecessor
of the Govan Mbeki Local Municipality a written contract
in terms of which he bought from the Municipality a property
described
as Erf 1577, Extension 9, Lebohang, Township, Leandra for
R135 000. The Municipality, cited as the second defendant, has
abided
the judgment of the court.
[2] Six years later on 20
November 2006, the respondent, for R171 114, acquired from the
Municipality the same property (which
had, through no fault of the
deceased, not yet been transferred to him) in terms of a written
contract dated 20 November 2006 and
took transfer of the property on
16 May 2007.
[3] The
trial was heard as a stated case by the North Gauteng High Court
which granted leave to appeal against its judgment dismissing
the
appellant’s claim for transfer of the property from the
respondent.
[4] The
stated case records the consensus of the parties on the following:
‘
At
all material times and in particular when the First Defendant
purchased the property the First Defendant knew that a valid and
binding sale agreement existed between the Plaintiff and the Second
Defendant . . .’
.
[5] This
agreement really disposes of the matter. Mr Muller for the
respondent did not argue that once the respondent knew of
the earlier
(valid) sale, he would not be obliged to transfer the property to the
appellant. The decision not to defend the conclusion
of the court
a
quo
that the respondent had been shown to be ‘dishonest (if not
fraudulent)’ was a wise one.
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien
(Pty) Ltd en Andere
,
1
‘saw the demise’, as Prof Gerhard Lubbe puts it
,
2
‘of the fraud construction’.
[6] The stated case does
the respondent no injustice. In 1988 the Municipality put the
property out to tender. It would seem that
the respondent tendered
for the property in competition with the deceased.
[7] According to the
stated case the Municipality in 1998 ‘resolved to recommend’
that the property be awarded to the
respondent. Of course, a
resolution by a local authority to enter into a contract is no more
than an instruction to its officials
to act in the manner authorised
by the resolution. Before the official has concluded the authorised
contract, the local authority
acquires no rights and incurs no
obligations. In particular, the resolution could not (as was at one
time thought) have created
an option contract between the
Municipality and the respondent. Quite apart from that, the offer
comprising such an ’option’,
to be valid, would have had
to be in writing so that a written contract might be constituted by
acceptance of the offer.
[8] After the
Municipality had resolved to enter into a sale agreement with the
respondent, but before it had entered into any legal
relationship
with him, it would appear that it, the respondent and the deceased
arranged for the deceased to buy the property.
[9] The respondent
maintains that he then orally ceded his right to purchase the
property to the deceased but, as I said above,
he had not acquired
any right that might be capable of cession and, anyway, interest in
land can only be ceded if the cession is
evidenced in writing. When
the deceased bought the property he could not have done so as the
cessionary of any right acquired from
the respondent.
[10]
The
written cession concluded between the deceased and the respondent on
27 November 2000 is a sadly defective agreement. In the
first place,
it was concluded on a date after the sale between the Municipality
and the deceased when, assuming that any right
capable of cession had
been created, there was none left to cede; in the second place, the
consent of the municipality (which
had not been obtained) was
required for the validity of the cession.
[11] Clause
10 of the cession contains a curious provision:
‘
In
the event of the cessionary passing away before transfer of the
property in the name of the cessionary this agreement will lapse
and
any amount paid by the cessionary in terms hereof will be refunded to
the executor of his estate.’
[12] Leaving
aside the consideration that it is futile to attempt to extract a
sensible meaning from the clause, it falls to the
ground with the
remainder of the cession. One would have thought that the appellant
would under these circumstances on the basis
of unjustified
enrichment, have been entitled to repayment of the R30 000 paid
in terms of the cession. However, there is
no claim for this amount
in the summons and Mr Smit for the appellant did not press it.
[13] The
stated case contains a tender to pay to the respondent the purchase
price that he had paid to the Municipality and the
costs of
transferring the property to the plaintiff. We are obviously bound by
the tender which seems to be a sensible solution
to the dilemma in
which the parties find themselves.
[14] Since
the municipality is not a party to the stated case acknowledging the
validity of the agreement between it and the deceased,
it would be
best to declare that agreement to be valid.
[15] The
Registrar of Deeds Pretoria was cited as a party but the notice of
appeal does not mention him as a party so that it is
not clear
whether he has had notice of these proceedings or not. In the
circumstances the order cancelling the registration of
transfer of
erf 1577 cannot be granted but such an order would in any event be
superfluous.
[16] The
appeal succeeds with costs. The order of the court
a
quo
is set aside and replaced by an order
reading as follows:
‘
1. The sale
agreement between the Municipality and the deceased dated 18 November
2000 and annexed to the particulars of claim is
declared to be valid;
2. The respondent is
directed to take all necessary steps to transfer erf 1577, Extension
9, Lebohang, Leandra to the estate late
M M Ramarope.
3. In the event that the
respondent fails to take such steps, the deputy sheriff is authorised
to sign all necessary documents
and take all other necessary steps to
ensure the transfer of erf 1577 Lebohang to the estate late M M
Ramarope.
4. The respondent is to
pay the costs of the application.’
_____________________
J CONRADIE
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: M Smit
Instructed by Stabin Gross & Shull,
Johannesburg
Claude Reid Inc, Bloemfontein
RESPONDENTS: G C Muller SC (with him N A R Ngoepe)
Instructed by TMN Kgomo & Associates, Pretoria
Symington & De Kok, Bloemfontein
1
1982 (3) SA 893
(A) at 910A–911B.
2
A doctrine in search of a theory: reflections on the so-called
doctrine of notice in South African law,
1997
Acta Juridica
246.