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[2024] ZAGPPHC 350
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Swanepoel v Kanyama and Another (80013/2018; 24993/2019; 8757/2019) [2024] ZAGPPHC 350 (12 April 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No: 80013/2018
Case No: 24993/2019
Case No: 8757/2019
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 12 April 2024
In the matter between:
ETIENNE PETER
SWANEPOEL
Applicant
and
LEONARD KAMANGO
KANYAMA
First Respondent
MICHELINE LUFIKA
KANYAMA
Second Respondent
JUDGEMENT -
APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The respondents seek leave to appeal orders
made in favour of the applicant. This arises out of several
related applications
by the applicant that were later consolidated.
2
The court ordered that the deed of sale
between the applicant and the respondents be rectified. The court
furthered ordered specific
performance in favour of the applicant.
3
Ms Sono, counsel for the respondents,
argued the following as constituting the bases for the application
for leave to appeal:
3.1
The court erred in refusing to grant the respondents a postponement,
in that that refusal amounted to a refusal
to allow legal
representation for the respondents, in breach of the respondents’
rights in section 34 of the Constitution.
3.2
The contract in terms of which the court granted rectification was
invalid, with the result that the court
could not grant
rectification.
3.3
The respondents had no opportunity to file an answer to the
consolidation application, which the respondents
opposed.
3.4
The court erred in granting specific performance in that the contract
was invalid, the property belonged
to a bank, and the respondents
could not render specific performance.
4
The respondents did not seek reasons before
launching the application for leave to appeal. This necessitates a
longer than usual
judgement in an application for leave to appeal,
for setting out the court’s reasoning in refusing the
postponement and granting
the orders in favour of the applicant.
5
The respondents are married in community of
property. They are joint owners of the property that form the
subject-matter of the
deed of sale. Standard Bank (“the Bank”)
had a bond registered over the property. The respondents defaulted on
their
obligations to the Bank, which then put measures to have the
property sold on auction.
6
The applicant, accompanied by Mariaan
Kuyper, met the respondents whom they presented with an offer to
purchase. The offer to purchase
described the property as “Erf
7[...], L[...]….” The respondents pointed out that the
description of the property
was incorrect; in that they only owned
the remaining extent of the property, not the whole property. The
respondents then initialed
each page and signed on pages 7 and 9. The
respondents signed below the words “AS WITNESS.” Kuyper
signed as a witness,
appending her signature above the words
"SPOUSE/CO-SELLER” on pages 7 and 9
7
Kuyper, later in the day and in the absence
of the respondents, added the letters “RE” in the
paragraph describing the
property. The proper description of
the property is the “Remaining Extent (RE) of Erf 7[...],
L[...], …”.
Kuyper also deleted clause 6 to the signed
offer to purchase.
8
The deed of sale was conditional. The
applicant had to obtain a loan in the specified amount by 25 October
2017 from a bank or building
society. The further condition was that
Standard Bank had to accept the applicant’s offer.
9
The applicant chose not to obtain a loan.
He paid cash, transferring funds into the trust account of the
transferring attorney.
Standard Bank accepted the applicant’s
offer.
10
The
respondents refused to sign documents to effect the transfer of the
property to the applicant. The respondents continue to reside
on the
property. The applicant then brought an application under case number
80013/2018, to oblige respondents to sign all documents
to effect
transfer of the property into the name of the applicant. The
respondents opposed the relief sought in case number 80013/2018.
11
The
respondents raised several objections, including that they did not
own the property, that the document relied upon by the applicant
did
not reflect the true intention of the parties, that the offer to
purchase was subject to conditions. They also pointed out
that clause
6 had been cancelled. The respondents also raised issues with the
description of the property.
12
The
applicant dealt with the objections by the respondents, pointing out,
for example, that Standard Bank had accepted his offer,
that the
property was transferred into the name of the respondents on 26 April
2012, that the offer to purchase was in relation
to “ERF
NR:7[…], AREA:L[…],” with the words
“Remaining Extent” being omitted in the
deed of sale. The
applicant pointed out that the description of the property would be
addressed in a rectification application.
The applicant also pointed
out that the property was nonetheless identifiable in the deed of
sale.
13
The
applicant brought a rectification application under case number
24993/2019. The application was essentially to record a formal
description of the property in the deed of sale, by changing the
description of the property from “Erf 7[...], L[...]”,
to
“Remaining Extent of Erf 7[...], L[...] township, […].”
14
The
respondents opposed the application. They raised various objections,
including denying signing a contract with the applicant.
They also
contended that rectification could only be sought by way of action
proceedings.
15
The
applicant brought a further rectification application under case
number 8757/2019. This was to rectify page 7 of the contract,
by
replacing “AS WITNESS” with “SELLERS”,
changing “SPOUSE/CO-SELLER to “WITNESS.” The
respondents did not file an answering affidavit.
16
The
applicant then brought an application under case number 8757/2020 to
consolidate the various applications. The respondents opposed
the
consolidation, including on the basis that the consolidation would
oblige the court to entertain disputed facts.
17
The
applications came before the court on 11 August 2023. The respondents
sought a postponement, which the applicant opposed.
18
Mr
Kawuta Sijako, the attorney for the respondents, deposed to the
affidavit in support of the postponement. He justified the
postponement
essentially on the ground that he was newly instructed
to represent the respondents and, for that reason, he required time
to familiarise
himself with the papers, to better advise the
respondents. Mr Sijako also mentioned that the respondents were not
ready for the
hearing because they did not believe that the matter
would proceed. That was because, according to Mr Sijako, the
applicant’s
previous attorneys did not prosecute his
applications.
19
Mr
Sijako was briefed on 1 August 2023 to represent the respondents.
The postponement application was made on 4 August 2023.
The
hearing was scheduled for the week of 7 August 2023. The matter was
allocated for and heard on 11 August 2023.
20
The
applicant opposed the postponement, referencing the following as part
of the bases for opposing the postponement.
21
The
applicant’s previous attorneys wrote to the respondents’
then attorney on 5 October 2022, stating that there had
been several
amendments to the matter. The applicant, on 27 January 2023, asked
the respondents to furnish a date for a pre-hearing
meeting.
There was no response. The applicant thereafter served the
respondents’ previous attorney with, among other
things, the
applicant’s submissions and a consolidated index. The
respondents ignored the Practice Manual on the filing of
heads.
22
The
applicant launched an application to compel the respondents to file
their heads. Standard Bank put pressure on the applicant.
The
applicant thereafter sought an audience with the Deputy Judge
President. The meeting was on 13 June 2023. The respondents were
invited to the meeting but chose not to attend. The Deputy Judge
President directed that the matter be set down for the week of
7
August 2023.
23
The
respondents’ attorneys were served with the notice of set-down
on 21 June 2023. The sheriff served the notice personally
on the
respondents on 23 June 2023. The respondents did not respond to the
service of the set-down.
24
The
applicant pointed out, in opposing the postponement, that the
respondents instructed a new attorney less than a week before
the
hearing and that the respondents did not seek a postponement at the
first possible opportunity. The respondents were aware
of the date
for the hearing at least 5 months before the postponement
application.
25
The
applicant also contended that respondents were not bona fide in their
application, and that the postponement was to allow them
to remain on
the premises for as long as they could, without paying a cent. The
applicant also contended that the respondents had
no prospects of
success on the merits.
26
I
refused the postponement. Litigants are entitled to expeditious
resolution of disputes. The first application was made in 2018.
The
respondents knew for months that the matter was set-down for the week
of 7 August 2023. There was no credible basis to respondents
instructing a new attorney on the eve of the hearing. It bears
pointing out that the respondents did not file confirmatory
affidavits
in the postponement application. This renders averments
pertaining to them inadmissible hearsay. The replying affidavit did
not
even address the substance of the points made in the answering
affidavit, including that the respondents refused an invitation for
a
pre-hearing, declined to attend a meeting with the Deputy Judge
President, and that the respondents were served personally with
the
notice of the set-down for the hearing. The respondents were not
denied a right to legal representation.
27
The
respondents’ opposition to the relief on the merits had no
substance. The respondents owned the property that is the subject
of
the offer to purchase. The fact that Standard Bank had a mortgage on
the property, or that the property was to be sold in execution,
does
not render Standard Bank the owner of the property. Ownership of
immovable property is as reflected in a title deed:
‘
In
the case of immovables, however, ownership in the attached property
can not pass during the sale in execution. It only passes
subsequently upon formal transfer of the property by the deputy
sheriff to the purchaser in execution.
[1]
28
The
immovable property was misdescribed. The respondents had no basis to
oppose the application to effect the correct formal description
of
the property, which would make the description in the deed of sale
consonant with the title deed. Similarly, the respondents’
refusal to agree that the deed be rectified because people signed on
the wrong place was wholly unmeritorious.
29
It
made sense to consolidate the various applications. They dealt with
substantially the same subject matter. There would have been
a waste
of funds in having the parties litigating in three separate
applications. There would equally have been a waste of judicial
resources in having three different courts consider the separate
applications.
30
There
was substance to the applicant’s complaint that the
respondents’ opposition was not made in good faith. The
applicant
met the conditions in the deed of sale and met all his
obligations. He was entitled to relief.
31
I
am not persuaded that another court will differ from this court on
the facts and the law in relation to this court having granted
the
orders in favour of the applicant. I therefore decline leave to
appeal.
32
I
make the following order:
(a)
The application for leave to appeal is
dismissed.
(b)
The respondents, jointly and severally, the
one paying to be absolved, are ordered to pay costs.
Omphemetse Mooki
Judge of the High Court
Heard:
8 April 2024
Delivered:
12 April 2024
For the applicant
(respondent in the application for leave to appeal):
W Gibbs
Instructed by:
Payne Steynberg Inc.
For the respondents
(applicants in the application for leave to appeal):
M M Sono
Instructed by:
T I Mothoa Attorneys
[1]
Simpson
v Klein NO & others
1987
(1) SA 405
(W), at 411C. Referred to with approval in
Firstrand
Bank Ltd v Nkata
(213/14)
[2015]
ZASCA 44
(26
March 2015)
,
at para 25