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[2024] ZAKZPHC 31
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Mthembu v Mpungose and Another (16011/2022P) [2024] ZAKZPHC 31 (28 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 16011/2022P
In
the matter between:
VICTORIA
IVY
MTHEMBU
APPLICANT
and
PHINDILE
EUNICE MPUNGOSE
FIRST RESPONDENT
THE
REGISTRAR OF DEEDS
SECOND RESPONDENT
ORDER
The
following order is granted:
1.
The applicant’s application, which includes the application for
referral
for oral evidence, is dismissed with costs.
2.
The respondent’s counter-application succeeds.
3.
The applicant is directed to return the keys and title deed in
respect of the
property described as Erf 6[...] e[...], Registration
Division FU, situated in the Dolphin Coast Local Authority Area,
Province
of KwaZulu-Natal, measuring 300 (three hundred) square
metres, and held by Certificate of Registered Title No T 7[...],
within
5 (five) days of service of this order.
4.
The applicant is directed to pay the costs of the
counter-application.
JUDGMENT
E
Bezuidenhout J
Introduction
[1]
This matter came before me as an opposed motion. The applicant, Mrs V
Mthembu, sought
the following relief:
(a)
That the first respondent be ordered to sign all documents and to do
everything necessary
to effect the registration of transfer of Erf
6[...], e[...], Registration Division FU, which is situated at
e[...], Dolphin Coast,
KwaDukuza, KwaZulu-Natal.
(b)
That, should the first respondent fail to sign the documents or to do
anything which is
necessary for the transfer of the property into the
name of the applicant within ten days after being requested to do so
by the
applicant’s conveyancers, the sheriff be authorised and
directed to sign all documents and to do anything necessary to
transfer
the property to the applicant on behalf of the first
respondent.
(c)
That the costs of the application should be borne by any of the
respondents who unsuccessfully
opposes the application, otherwise,
the cost should be borne by the applicant.
[2]
The first respondent, Mrs P Mpungose, filed a counter-application
wherein she sought
the following relief:
(a)
That the applicant be directed to return the title deed for Erf
6[...], e[...], to the first
respondent, upon the granting of this
order.
(b)
That the applicant be directed to return the keys for the property to
the first respondent,
upon the granting of this order.
(c)
That the applicant pay the costs of this application on an attorney
and client scale.
[3]
The first respondent also raised three points in limine, which I will
deal with in
due course.
[4]
No relief was sought against the second respondent, the Registrar of
Deeds.
[5]
At the commencement of the hearing before me, counsel for the
applicant, Mr P A Dlamini,
indicated from the bar that he wanted to
apply for the matter to be referred for the hearing of oral evidence.
This was the first
time that the issue of a referral was raised. No
mention was made of it in his heads of argument or practice note. He
sought the
following order:
(a)
That the matter be referred for the hearing of oral evidence on the
issue of whether the
payment of R12 000 to the first respondent
by the applicant was a loan or was in respect of the purchase of the
first respondent’s
immovable property, described as Erf 6[...],
e[...].
(b)
The applicant be directed to pay the wasted costs for the day.
[6]
Counsel for the first respondent, Mr D Moodley, indicated that the
first respondent
was opposed to the referral to oral evidence, mainly
because it would delay the finalisation of a case which has no
prospects of
success. The first respondent raised the issue of a
material dispute of fact in her answering affidavit, which now formed
the subject
of the proposed referral to oral evidence by the
applicant. More about this later.
[7]
The main issue to be determined is the nature of the agreement
entered into between
the applicant and the first respondent, whether
it was valid in law and in conclusion, whether the applicant is
entitled to any
relief. Once this has been determined, the relief
sought in the counter-application will follow the result.
Factual
background
[8]
The applicant stated in her affidavit that during 2009 and at e[...]
in KwaDukuza,
she and the first respondent entered into an agreement
in terms of which she bought Erf 6[...], e[...] (the property). The
purchase
price was R12 000, which was paid in cash in two
tranches. An amount of R6 000 was paid at first and thereafter
the remaining
R6 000 was paid over consecutive weeks.
[9]
The alleged sale agreement was concluded in the presence of Mrs
Khumbuleni Irene Hadebe,
the first respondent’s mother, who is
now deceased, and Mr Themba Mbongeniseni Mthembu, the applicant’s
husband. Mrs
Hadebe allegedly introduced the applicant to the first
respondent after she told the applicant that the first respondent was
selling
her property. The applicant alleged further that it was
agreed between her and the first respondent that transfer of the
ownership
and registration of the property ‘shall take effect
after a period of five years’. It was also allegedly agreed
that
the sale agreement was to be signed by the applicant and the
first respondent after the expiry of the five-year period. The reason
for the five-year waiting period was apparently due to the property
being a so-called subsidised low cost house, which could not
be
disposed of within the five-year period.
[10]
It therefore appears that the applicant and the first respondent had
agreed to enter into an
agreement after a period of five years.
[11]
The applicant alleged that after she paid the purchase price, the
first respondent handed the
original title deed of grant as well as
the keys of the property to her. She, however, did not take physical
occupation of the
property because she wanted to allow the five-year
period to expire.
[12]
The applicant alleged that she approached the first respondent upon
the expiry of the five-year
period in 2014 in order to finalise the
registration of the transfer of the property into her name. The first
respondent allegedly
refused to sign the purchase and sale agreement,
despite being requested to do so by the applicant’s erstwhile
attorneys,
Nadine Perumal Attorneys. The sale agreement was not
attached to the applicant’s affidavit nor was any confirmatory
affidavit
by the attorneys.
[13]
Perhaps most importantly, the applicant stated in her founding
affidavit that the first respondent
disputed that she sold the
property to the applicant. She apparently ‘concocted’ a
story that the applicant had loaned
her money and that they
accordingly only entered into a loan agreement and that the deed of
grant and keys were kept by the applicant
because of the loan.
[14]
At this early stage, it was therefore already known to the applicant
that the first respondent
disputed that she sold her property to the
applicant.
[15]
The applicant also stated that the first respondent had in the
meantime sold the property to
another person. The applicant received
a letter dated 24 May 2022 from the attorney representing Mr
Wonderboy Mzwandile Dlamini,
informing her that he had entered into a
sale agreement with the first respondent and that he was in the
process of transferring
the property into his name. He was granted a
right to occupy the property by the first respondent. The applicant
was requested
to desist making threatening statements to Mr Dlamini,
and it was stated, in particular, that ‘[i]t is common
knowledge that
you are not the owner of the property’.
[16]
The applicant was accordingly aware from at least 24 May 2022 that Mr
Dlamini had purchased the
property from the first respondent. The
applicant stated that Mr Dlamini is adamant to have the property
transferred into his name
and has taken occupation of the property.
Mr Dlamini paid R45 000 for the property, so his actions are
perhaps understandable.
The applicant chose not to join Mr Dlamini to
these proceedings, which is the subject of one of the first
respondent’s points
in limine, namely the non-joinder of Mr
Dlamini.
[17]
The applicant insisted that the first respondent agreed to sell her
the property and that the
first respondent is being deceitful as she
has to date not paid back or offered to pay back the alleged loan of
R12 000. The
application was issued on 18 November 2022. Two
confirmatory affidavits of Mr Mthembu and Mrs Hadebe also formed part
of the application
papers.
[18]
As mentioned before, the first respondent raised three points in
limine. They were firstly, noncompliance
with the provisions of
section 2 of the Alienation of Land Act 68 of 1981 (the Alienation
Act); secondly, the applicant’s
noncompliance with Uniform rule
41A; and lastly, the non-joinder of Mr Dlamini. I will return to
these points in limine below when
necessary.
[19]
The first respondent stated that during or about 2009, she was
experiencing financial difficulties
as a result of family
responsibilities. She required funds to pay for her mother's medical
treatment and had to resort to obtaining
a loan. She was introduced
to the applicant by Mrs Hadebe, whom she understood to be related to
the applicant. She met with the
applicant and they agreed that the
applicant would advance her the sum of R12 000 as a loan which
had to be repaid. As security,
the applicant would keep the title
deed and in lieu of paying interest, the applicant would hold the
keys and would collect rentals
from tenants she allowed to occupy the
property. Upon repayment of the R12 000, the applicant would
return the keys and title
deed to the first respondent.
[20]
The first respondent alleged that both parties complied with the
terms of their verbal agreement.
For a prolonged period, the first
respondent was unable to procure the R12 000 to pay off her debt
to the applicant. During
February 2022, she acquired the full amount
and approached the applicant to repay the loan and to retrieve her
keys and the title
deed. The applicant refused to accept the money
from the first respondent and insisted that she had bought the
property from the
first respondent. The first respondent alleged that
she pleaded with the applicant to accept the repayment and to return
the title
deed and keys to her but the applicant refused and became
aggressive towards her.
[21]
The first respondent stated that she sold the property to Mr Dlamini
on or about 12 October 2021.
[22]
After receiving the current application papers in November 2022, the
first respondent instructed
her attorneys to attempt to resolve the
matter with the applicant and her attorneys. They were unsuccessful.
[23]
The first respondent denied that Mrs Hadebe had been present when the
loan agreement was concluded,
neither was her mother nor the
applicant’s husband, as claimed by the applicant. The first
respondent also denied that the
applicant had approached her and
provided her with a purchase or sale agreement at any time. She
further stated that the applicant
had usurped her property
unlawfully.
[24]
As far as her counter-application was concerned, the first respondent
stated briefly that notwithstanding
having sold the property to Mr
Dlamini, transfer has not yet taken place because the applicant holds
the keys and the title deed
of the property. It is evident from the
title deed, which is attached to the applicant's founding affidavit,
that the first respondent
is indeed depicted as the owner of the
property.
[25]
In her replying affidavit, the applicant dealt with the points in
limine raised by the first
respondent in a very dismissive way, which
lacked substance. As far as the non-joinder of Mr Dlamini was
concerned, she simply
stated that if he believed that he was somehow
entitled to ownership and occupation of the property, he is entitled
to institute
legal proceedings against the applicant. The applicant
clearly missed the point of non-joinder completely or was badly
advised.
[26]
Apart from the denying the verbal loan agreement, as alleged by the
first respondent, her affidavit
was a repetition of the allegations
made in her founding affidavit and she insisted that an agreement in
respect of the sale and
purchase of the property was entered into
between herself and the first respondent and that when she approached
the first responder
to sign the written agreement, she refused to do
so. The alleged written sale agreement was again not attached to the
applicant’s
replying affidavit.
Referral
to oral evidence
[27]
As mentioned above, counsel for the applicant applied for the matter
to be referred for the hearing
of oral evidence. He was hard-pressed
to explain why the applicant had commenced proceedings by way of an
application instead of
an action, when the applicant, already in her
founding affidavit, referred to the version of the first respondent
regarding the
loan agreement. It could therefore not come as a
surprise to the applicant that the first respondent raised the same
issue in her
answering affidavit. The high-water mark of his argument
was that the applicant had two affidavits supporting her version,
whereas
the first respondent had none.
[28]
Mr D Moodley, appearing for the first respondent, objected to any
possible referral for oral
evidence and submitted that it would lead
to unnecessary legal costs and a delay in the finalisation of the
matter. It was submitted
that the applicant had no prospects of
success in respect of the relief being sought, especially in light of
the obvious non-compliance
with section 2(1) of the Alienation
Act.
[1]
[29]
It was also submitted by Mr Moodley that the non-joinder of Mr
Dlamini was fatal to the applicant’s
application. He further
emphasised that the applicant only resorted to litigation 13 years
after the alleged agreement was concluded
and only after the first
respondent attempted to repay the alleged loan.
[30]
As far as disputes of fact and the referral to oral evidence is
concerned,
Erasmus:
Superior Court Practice
[2]
states the following:
‘
As
a general rule, decisions of fact cannot properly be founded on a
consideration of the probabilities unless the court is satisfied
that
there is no real and genuine dispute on the facts in question, or
that the one party’s allegations are so far-fetched
or so
clearly untenable or so palpably implausible as to warrant their
rejection merely on the papers, or that
viva
voce
evidence would not disturb the
balance of probabilities appearing from the affidavits. This
rule applies not only to disputes
of fact, but also to cases where an
applicant seeks to obtain final relief on the basis of the undisputed
facts together with the
facts contained in the respondent’s
affidavits. In the latter regard it has become known as the
“
Plascon Evans
rule”,
referred to by the Constitutional Court in
Democratic
Alliance in re Electoral Commission of South Africa v Minister of
Cooperative Governance
as
follows:
“
The
Plascon-Evans
rule
is that an application for final relief must be decided on the facts
stated by the respondent, together with those which
the applicant
states and which the respondent cannot deny, or of which its denials
plainly lack credence and can be rejected outright
on the papers.”’
(Footnotes omitted.)
[31]
It is important to remember that
‘
[a]
referral to oral evidence or trial is not merely there for the
taking. A case ought to be made out for such a referral and
satisfactory explanation provided as to why the applicant did not
institute action instead of motion proceedings and whether the
applicant did not foresee the possibility of dispute of fact not
capable of resolution on paper.’
[3]
[32]
The following was further held in
IClear
Payments (Pty) Ltd v Honeywell
:
[4]
‘
In
my view, to simply allow a litigant to resort to a referral to oral
evidence when the shoe pinches in motion proceedings, would
be to
condone irregular procedure. The applicant elected to proceed by way
of motion proceedings when it ought to have been clear
to it and its
legal representatives that a dispute of fact was bound to emerge,
which a court would not be able to decide on the
papers.’
[33]
In
Kalil
v Decotex (Pty) Ltd and another
[5]
the court said the following with reference to the discretion to
allow oral evidence in the case of an application for a provisional
winding-up order:
‘
Naturally,
in exercising this discretion the Court should be guided to a large
extent by the prospects of
viva
voce
evidence
tipping the balance in favour of the applicant. Thus, if on the
affidavits the probabilities are evenly balanced,
the Court would be
more inclined to allow the hearing of oral evidence than if the
balance were against the applicant. And the
more the scales are
depressed against the applicant the less likely the Court would
be to exercise the discretion in his favour.
Indeed, I think that
only in rare cases would the Court order the hearing of oral evidence
where the preponderance of probabilities
on the affidavits favoured
the respondent.’
[6]
[34]
In my view, there is nothing far-fetched about the first respondent’s
version but the applicant’s
prospects of success is perhaps a
more important issue to be considered when deciding on the
application for a referral to oral
evidence, in addition to the other
issues mentioned above.
The
validity of the agreement
[35]
The applicant’s counsel agreed that the nature of the alleged
agreement between the applicant
and the respondent was in fact an
oral agreement to enter into a written agreement in five years’
time.
[36]
An agreement to agree is generally not enforced in our law. In
Shepherd
Real Estate Investments
(Pty)
Ltd v Roux Le Roux Motors CC
[7]
the following was said:
‘
Thus,
although the position in relation to “agreements to negotiate
in good faith” remains a complex one in Australia
in the light
of
Coal Cliff Collieries
, courts there, like other comparable
jurisdictions, will not enforce “an agreement to agree”.
That accords as well
with the position in our law.’ (Footnote
omitted.)
The
court continued as follows:
‘
The
proper approach in an enquiry such as the present depends upon the
construction of the particular agreement. Accordingly, it
becomes
necessary to analyse the relevant paragraph to decide whether its
proper characterisation is merely an agreement to agree
or whether it
contained legally enforceable obligations.’
[8]
[37]
In
Bon
Com (Pty) Ltd and another v Services Sector for Education Training
and Authority and others
[9]
the following was held:
‘
Each
of the initial agreements represents nothing more than “an
agreement to agree”. An agreement of that kind is not
binding
under South African law and in the circumstances the First
Plaintiff’s conduct in not concluding the subsequent agreements
cannot, with respect, be said to be wrongful (as to the
enforceability of an agreement to agree see
Schwartz NO v Pike and
Others
2008 (3) SA 431
(SCA) at paragraph 17). This stems from
the fact that it was not obliged to conclude the subsequent
agreements.’
[38]
It is in my view clear that what the applicant is seeking to enforce
falls squarely within the
agreements described above, which is
clearly not recognised in our law. The applicant, at best, has a
claim against the first respondent
for the repayment of the R12 000,
which the first respondent has tendered to repay.
Non-joinder
[39]
As far as the issue of non-joinder is concerned, I will only deal
with it briefly considering
my finding above. There can be no doubt
that Mr Dlamini has a direct and substantial interest in the outcome
of these proceedings
and the order being sought by the applicant will
most certainly affect his interests. Counsel for the applicant
submitted in this
regard that Mr Dlamini had knowledge of the matter,
as was conveyed in the letter from his attorneys, and he could have
brought
an application to intervene if he wanted to. Counsel perhaps
lost sight of the provisions of Uniform rule 10, which deals with
joinder. In
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
[10]
the authors deal with joinder of necessity, as opposed to joinder of
convenience as per rule 10 and state the following:
‘
A
third party who has, or may have, a direct and substantial interest
in any order the court might make in proceedings or if such
an order
cannot be sustained or carried into effect without prejudicing that
party, is a necessary party and should be joined in
the proceedings,
unless the court is satisfied that such person has waived the right
to be joined.’ (Footnote omitted.)
[40]
In
Civil
Procedure: A Practical Guide
[11]
the authors cautioned that a legal practitioner who contemplates
instituting legal proceedings, must always consider who is likely
to
be affected by the order or relief being sought and then ensure that
such a party is joined, unless the party has specifically
waived his
right to be joined. This has clearly not happened in the present
matter and to simply say that Mr Dlamini should have
intervened if he
wanted to, borders on reckless.
[41]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others
[12]
the following was stated at para 91:
‘
At
common law courts have an inherent power to order joinder of parties
where it is necessary to do so even when there is no substantive
application for joinder. A court could, mero motu, raise a question
of joinder to safeguard the interest of a necessary party and
decline
to hear the matter until joinder has been effected.’
[42]
A court would however be fully entitled to dismiss an
application due to a material non-joinder
where an applicant has made
a deliberate decision not to join another party.
[13]
In my view, the applicant clearly made a deliberate decision not to
join Mr Dlamini, which would justify a dismissal, but even
if she
didn’t, and in light of my finding above, it would serve no
practical purpose to adjourn the matter for the joinder
of Mr
Dlamini.
Conclusion
[43]
I do not deem it necessary to deal with the other points raised in
limine. In my view, it is
clear that what the applicant sought to
enforce is simply not part of our law and no amount of oral evidence
will resolve that
issue. The applicant clearly has no prospects of
success. Even if I am wrong in this regard, the applicant clearly
should have
foreseen the material dispute of fact and should have
proceeded by way of action from the outset. No satisfactory
explanation for
this course of action has been provided.
[44]
As far as the first respondent’s counter-application is
concerned, and in light of my finding
that the agreement relied upon
by the applicant is not recognised in our law, and that the applicant
has no prospects of success,
the counter-application must therefore
succeed. The first respondent is in my view entitled to the return of
the title deed and
keys.
Costs
[45]
As far as costs are concerned, I have no reason to deviate from the
usual approach, namely that
costs should follow the result. The first
respondent has asked for costs on a punitive scale against the
applicant in her counter-application.
I am not convinced that such an
order is justified and exercise my discretion against such an order.
Order
[46]
I accordingly make the following order:
1.
The applicant’s application, which includes the application for
referral
to oral evidence, is dismissed with costs.
2.
The respondent’s counter-application succeeds.
3.
The applicant is directed to return the keys and title deed in
respect of the
property described as Erf 6[...] e[...], Registration
Division FU, situated in the Dolphin Coast Local Authority Area,
Province
of KwaZulu-Natal, measuring 300 (three hundred) square
metres, and held by Certificate of Registered Title No T 7[...],
within
5 (five) days of service of this order.
4.
The applicant is directed to pay the costs of the
counter-application.
E
Bezuidenhout J
Date
of hearing:
26 February 2024
Date
of judgment:
28 March 2024
Appearances:
For
the applicant:
Mr P
A Dlamini
Instructed
by:
Pretorius
Mdletshe & Partners
Suite
5, Jognoor Centre
52
Hullet Street
KwaDukuza
Tel
no 032 552 2243
Email:
pmpattorneys@gmail.com
Ref:
VV MDLETSHE/FQ/MTHEMBU
c/o
Madonsela & Associates
1 st
Floor Main City Building
210
Langalibalele Street
Pietermaritzburg
Ref
Mr Sithole
For
the first respondent:
Mr D
Moodley
Instructed
by:
CJ
Cogan Attorneys
The
Work Station
1 Old
Main Road, Umhlali
Tel
no 032 947 0865
Email:
sindi@cjcogan.co.za
Ref:
PMPUNGOSE
c/o
Mason Inc Attorneys
Suite
2,3 &4 Investec House
Victoria
Country Club Office Park
170
Peter Brown Street
Pietermaritzburg
Ref
16011/2022P
[1]
Section
2(1) reads: ‘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.’
[2]
DE
van
Loggerenberg
Erasmus:
Superior Court Practice
(RS
22, 2023
)
at
D1-Rule 6-39 to D1-Rule 6-40, and the authorities referred to
therein.
[3]
Richardson
and others v Fernandes and others
[2017]
ZAGPJHC 166 para 8.
[4]
IClear
Payments (Pty) Ltd v Honeywell
[2023]
ZAKZDHC 5 para 17.
[5]
Kalil
v Decotex (Pty) Ltd and another
1988
(1) SA 943
(A) at 979H-I.
[6]
In
Bocimar NV
v Kotor Overseas Shipping Ltd
[1994] ZASCA 5
;
1994
(2) SA 563
(A) at 587F-G the court held that these observations are
also applicable to applications in general.
[7]
Shepherd
Real Estate Investments (Pty) Ltd v Roux Le Roux Motors CC
[2019]
ZASCA 178
;
2020 (2) SA 419
(SCA) para 16.
[8]
Ibid
para 17.
[9]
Bon
Com (Pty) Ltd and another v Services Sector for Education Training
and Authority and others
[2023]
ZAGPJHC 1156 para 7.
[10]
AC
Cilliers, C Loots and HC Nel
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5
ed (2009) at ch6-215.
[11]
S
Peté
et
al Civil Procedure: A Practical Guide
3
ed (2017) at 441.
[12]
Matjhhabeng
Local Munincipality v Eskom Holdings Ltd and others
2018(1)
SA 1 (CC)
[13]
Kransfontein
Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd and others
[2017] ZASCA 131
para 16. See also
Umdeni
(clan) of Amantungwa and others v MEC, Housing and Traditional
Affairs and another
[2011] 2 All SA 548
(SCA) para38 and
Golden Dividend 339 (Pty) Ltd and Another v Absa Bank Ltd
[2016]
ZASCA 78
para10
where
it was held that non-joinder was fatal to the relief sought.