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[2022] ZAFSHC 73
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Maoba v Mohono and Others (286/2021) [2022] ZAFSHC 73 (20 January 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 286/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between
MOTLALEPULA
ANDRIES
MAOBA
APPLICANT
And
MAPHEPHE
EZEKIEL MOHONO
FIRST
RESPONDENT
SETSOSO
LOCAL MUNICIPALITY
SECOND
RESPONDENT
THE
MUNICIPALITY MANAGER N.O
THIRD
RESPONDENT
THE
REGISTRAR OF DEEDS, N.O
FOURTH
RESPONDENT
DEEDS
OFFICE, BLOEMFONTEIN
CORAM:
MZANAAJ
HEARD
ON:
15 SEPTEMBER
2021
DELIVERED
ON:
20
JANUARY 2022
[1]
The applicant
seeks
an order
to compel
the
first
respondent
to sign
documents
for the transfer of the
immovable property, situated at Erf 1[…], Meqheleng,
Ficksburg, Free State Province.
[2]
The applicant
further indicated that,
in the event the first respondent
refuses to sign the
transfer papers of the property over to the applicant,
that the sheriff
of the court in
Ficksburg be authorised to sign the transfer papers on the behalf of
the respondent.
[3]
In addition,
the first respondent
be
ordered
to
deliver
the original
Deed
of
transfer held under No
TE0[…],
over
to the Sheriff of the court in Ficksburg, who then shall deliver such
an original title deed to the applicant.
[4]
The
matter
was
argued
on
the
Advocate appeared
on
behalf
of
the
plaintiff and Advocate
Thompson appeared on behalf of the respondent.
BACKGROUND
[5]
The applicant allege
that somewhere in 1996 , he purchased the ERF 1[…], Meqheleng,
District Ficksburg, 9730, Free State
Province (herein after be
referred to as
the
"property)
from
one
Mr
Sekete,
an
elderly
man
at
the
time
of
the
said
sale, was employed by
the second respondent Setsoto Local Municipality. It appears that, Mr
Sekete has since passed on and his confirmatory
affidavit could not be
obtained.
[6]
Mr
Sekete
did
not
have
the
Deed
of
transfer
from
the
second
respondent
to himself at the time
of the purported sale and the site was still under the ownership
of the second
respondent.
[7]
The
applicant
further
stated
that
he
has
developed
the
property
(built
a
house on the said Erf)
with the intention to sell it.
Also prior to the
intended sale of the said property,
he approached
the second respondent
in October 2020 to ensure that a deed
of transfer
is registered
in his name
and to enable him to
sell the house.
[8]
During such enquiry, it
came to his attention that, the property in question was
in fact sold by the
second respondent to one Mr Mohono (first respondent) in 2009, and
held under deed
of
transfer:
TE
1[…].
Upon further
investigation
he
ascertained that, the first respondent is actually, the owner and
occupier of another property described as
Erl
1[…], Boitumelo, Ficksburg, Free State Province.
[9]
The respondent contends
that it is improbable that Mr Sekete would sell the property that was
not his in the first. Further that
the applicant's claim is
unattainable. The respondents
does not deny that they
erroneously
registered
a wrong property (one property different areas)
[10]
It was pointed out by applicant, that respondent's contentions are
fraught with contradictions and this court should
disregard their
submissions.
APPLICABLE
LAW
[11]
ALIENATION
OF LAND
ACT 68 OF 1981(the ACT)
A contract for alienation
of land, immovable property or rights in immovable property must be
a.
Be in writing
b.
Be signed by the
parties.
If, they make use of
agents, the agents must
c.
Have
their
written
authority.
Non-compliance
with
the
section
causes
the contract not to be
"of
any force
or effect".
The legislature's reasons
for requiring these formalities are to prevent uncertainties, exclude
disputes, and avoid malpractices
and unnecessary litigation
[12]
Thorpe v Trittenwein
2006 SCA, this case deals with the noncompliance with the provisions
of section 2(1) of the Act, which provides
that:
"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"
[13]
Turning to the matter
in casu,
as indicated above,
the applicant
claims
that, he bought
the
aforementioned property
from
Mr
Sekete
who
was
at the
time
employed by the second
respondent. Strange enough, there is no evidence placed before this
court or documentation presented authorising
Mr Sekete to sell the
property on behalf the third respondent.
Therefore, the absence
of any documents or papers proving that there was a written sale of
agreement as suggested or requested
by the Act, that the
sale of land
must
be in writing
leaves the court with no choice but to conclude that, there was never
a sale of agreement/ contract.
If the contract was
verbal it will suffer the same fate in that verbal contract are null
and void.
[13]
Furthermore, it appears
that, when the applicant took possession of the aforementioned Erf,
he did not have purchase it from the
lawful owner, being Setsoso
Local Municipality, and did not ensure that a deed of transfer was
registered in his name. Therefore,
has no right in terms of Law to
claim ownership of the aforementioned property.
[14]
In the light of the
above, I am of the view that, the application of the applicant cannot
be attainable or enforceable. I am alive
to the fact that applicant
has been paying rates and taxes been residing since 1996. However, it
is of importance to mention that,
paying rates does not make one the
rightful owner of the property.
[15]
It is trite that, no
legal consequences can flow from a void Jural act.
In other words, "no
one can transfer
more rights to another than he himself has".
On
a conspectus of evidence, it is my view that, the sale between the
applicant and Mr Skete was void
aborigine.
[16]
Having said that, I am
not persuaded that the balance of convenience favours the applicant
and of the view that the contract between
the applicant and Mr Sekete
has no force and effect and declared null and void.
COSTS
[17]
It is an accepted legal
principle that, costs ordinary follow the result, and a successful
party is therefore, entitled to his or
her costs. I see no reason why
I should deviate from this legal principle.
ORDER
[18]
Accordingly, I made the following order
Application dismissed
with costs including the costs of counsel
L.
MZANA AJ
On
behalf of Plaintiff
Advocate
M. J Mpshe
Commissioned
by:
Maoba
Attorneys
C/O
Hanlie Fourie Attorneys
Bloemfontein
On
behalf of the Second
and
Third Respondent
Advocate
D.R Thompson
Commissioned
by:
Mohlokonya
Attorneys Bloemfontein