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[2022] ZAECGHC 29
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G.L Mazomba Funeral Undertakers (Pty) Ltd v Mtoba Funeral Services (Pty) Ltd (1083/2021) [2022] ZAECGHC 29 (8 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO: 1083/2021
In
the matter between:
G.
L. MAZOMBA FUNERAL UNDERTAKERS (PTY) LTD
Applicant
and
MTOBA
FUNERAL SERVICES (PTY) LTD
Respondent
JUDGMENT
RUGUNANAN,
J
[1]
The respondent seeks leave
to appeal against my judgment delivered
ex
tempore
on
14 October 2021. The application for leave to appeal was delivered on
15 October 2021.
The
judgment followed argument in an eviction application instituted by
the applicant under the
rei
vindicatio
.
The subject matter of the application concerned fixed commercial
property situated at 7 Leopold Street, more specifically described
as
Erf 1092 and Erf 1093, King William’s Town (“the
property”). The order attendant on the judgment essentially
directed the respondent to vacate the property and to restore
possession to the applicant within 14 days and to pay the costs of
the application.
[2]
The notice of application
for leave to appeal comprises of some twenty grounds of appeal
inessential to the findings in the judgment
and irrelevant to
addressing the substantial issue inherent in the cause of action set
out in the applicant’s papers. Succinctly
articulated, the
substantial ground of appeal is that the applicant’s reliance
on a title deed to support its claim for the
return of the property
in terms of the
rei
vindicatio
is
unsustainable for the reason that ownership of the property is vested
in a deceased estate by application of the abstract theory
of the
transfer of ownership.
[3]
The abstract theory – as opposed to the
causal theory – of transfer postulates that the validity of the
transfer of
ownership is not dependent upon the validity of the
underlying transaction, which in this case is the sale of the
property by
Staircase
Solutions (Pty) Ltd (“Staircase”) to the applicant. The
causal theory, on the other hand, requires a valid
underlying legal
transaction or
iusta
causa
as
a prerequisite for the valid transfer of ownership
(see
Legator Mckenna Inc. and Another v Shea
and Others
2010 (1) SA 35
(SCA) at
paragraphs [20] and [21]). The causal theory makes the transfer of
ownership of a real right dependant on a valid underlying
contract.
This theory lays down that, if the cause for the transfer of a real
right is defective, the real right will not pass
despite the fact
that there has been delivery or registration of the
res
.
In terms of the abstract theory, provided that the agreement for the
transfer of the real right (i.e. the real agreement) is valid,
the
real right will pass in the pursuance and implementation of that
agreement, notwithstanding that the underlying contract is
defective.
[4]
The
rei
vindicatio
is
a remedy available to an owner for reclaiming property from whomever
is in possession thereof. In vindicatory proceedings it
is trite that
the owner need do no more than allege and prove that he is the owner
and that the other party is holding the property;
the
onus
being on that party
to allege and establish an enforceable right (such as a right of
retention or a contractual right) to continue
to hold against the
owner (see
Chetty
v Naidoo
1974
(3) SA 13
(A) at 20A-D which dealt with the
rei
vindicatio
and
the burden of proof in ejectment proceedings).
THE
UNDERLYING REASONING IN THE JUDGMENT
[5]
The
reference to
Chetty
v Naidoo
makes
it plain that the applicant has the
onus
to
prove ownership of the property in question. At the very least, in
vindicatory claims proof of ownership has to be adequate (see
Ruskin
NO v Thiergen
1962
(3) SA 737
(A) at 744A-B). The applicant has put up a certified copy
of the title deed to the property with date of registration indicated
as 5 October 2020.
[1]
In
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993
(1) SA 77
(A) at page 82 it is stated that the best evidence of
ownership of immovable property is the title deed (see also
Bowley
Steels (Pty) Ltd v 10 Sterling Road (Pty) Ltd and Another
(2016/2461)
[2017] ZAGPJHC 196).
The
respondent has not seriously and unambiguously disputed the title
deed, contending instead that it vests the applicant with
bare
dominium
in
the property.
[6]
Evident from the papers in
the main application are the following undisputed facts:
(i)
The applicant
purchased the property on 25 May 2020 from Staircase Solutions (Pty)
Ltd (“Staircase”), the previous registered
owner;
(ii)
The respondent is
currently in occupation of the property;
(iii)
There is no agreement
between the applicant and the respondent to justify the respondent’s
possession and occupation of the
property; and
(iv)
There never existed a
lease agreement (or any other agreement) between Staircase and the
respondent, which lease, by operation of
law would have transformed
into an agreement between the applicant and the respondent.
[7]
It is trite that motion proceedings are determined
on the basis of common cause facts (see
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para
[27]
). On the undisputed facts, and of
course accepting the best evidence as to ownership, there can be no
conclusion other than that
the applicant discharged the
onus
and established its entitlement to the relief
prayed for in its notice of motion. This approach underscores the
reasoning that informed
my judgment.
BACKGROUND
[8]
In seeking leave to appeal
it was contended for the respondent that its director Ndileka Mtoba,
in her personal capacity, was given
a right to permanently occupy the
property and this right extended to the respondent by virtue of her
involvement in the conduct
of its business. Hence the applicant would
have bare
dominium
.
Ndileka Mtoba maintains that full
dominium
in the property vests
in the estate of her deceased father Robert Mtoba who died intestate
in 1993, and goes on to explain that
her mother Nodi Mtoba, who was
married in community of property to her father, was appointed
executrix to the latter’s estate.
[9]
Ndileka Mtoba discloses that
her mother Nodi Mtoba bought the property but that in accordance with
a family agreement the title
deed “
be
registered in the name of our mother as a keeper thereof –
keeping it for us as heirs pending the eventual and final winding
up
of our father’s estate.”
I pause to state that
the family members who were privy to the alleged agreement included
Ndileka Mtoba, her sister Nomfuneko Mtoba
and their mother Nodi
Mtoba. A third sibling named Xhanti Mtoba had long been deceased
since 1995.
[10]
By deed of transfer
registered on 9 May 1995 Nodi Mtoba acquired ownership of the
property until her death in 2018. Following
the death of her mother,
Ndileka Mtoba asserts that she assumed the role of
de
facto
executrix
of her late father’s estate, the administration of which has
not been finalised to date. For this reason, so it
was argued, the
property vests in the estate of the deceased Robert Mtoba.
[11]
The explanation that
dominium
in the property vests
in her deceased father’s estate is certainly convoluted; but in
support thereof reliance is placed on
the abstract theory for
advancing the argument that full
dominium
vests in the estate
of Robert Mtoba in terms of the real agreement with Nodi Mtoba, the
executor of his estate.
[12]
The difficulty confronting
the respondent is the absence of a confirmatory affidavit by
Nomfuneko Mtoba to substantiate the averments
by Ndileka Mtoba in
respect of the alleged agreement. As a point of departure Nomfuneko
Mtoba deposed to an affidavit in support
of the applicant’s
relief. In addition, it is nowhere apparent in the respondent’s
papers as to how or from whom was
the alleged right to permanent
occupation of the property conferred upon Ndileka Mtoba.
Furthermore, her explicit acknowledgment
that the title deed to the
property reflects registration in the name of her deceased mother
renders the contention that full
dominium
of the property
continues to vest in the estate of Robert Mtoba, unconvincing.
[13]
In evidence the applicant placed before this
court:
(i)
the title deed presently held in its name after
acquiring registration and transfer on 25 May 2020;
(ii)
the title deed of
Staircase
(as the previous owner and seller to the applicant), which title deed
indicates that Staircase acquired registration and
transfer of title
in its name from Nodi Mtoba on 26 September 2017; and
(iii)
the deed of transfer in
favour of the late Nodi Mtoba, (the previous owner and seller to
Staircase) indicating that she acquired
registration and transfer of
title from Frederick Bentley Chalmers and Pamela Grace Chalmers on 9
May 1995.
[14]
None of the aforementioned
deeds record any real rights or servitudes – neither in favour
of the respondent, nor in favour
of Ndileka Mtoba. Indeed, the
causa
for each transfer has
not been faulted by the respondent. A revealing feature of the deed
of Nodi Mtoba is that title in the property
was not transferred to
Nodi Mtoba in her capacity as executrix (or “
keeper”
)
of her deceased’s husband’s estate. Objectively
considered, Nodi Mtoba held title in her name. This observation
forestalls
the assertion by Ndileka Mtoba that the property falls
within the estate of her deceased father.
[15]
A further observation from
the respondent’s answering affidavit emanates from the
certified Will of Nodi Mtoba which has been
attached thereto. The
Will did not, in respect of the property, confer upon the respondent
a right of retention or a servitude,
nor did it do so in favour of
Ndileka Mtoba in her personal capacity.
[16]
In my view the contention
regarding the vested property in the estate posited on the abstract
theory, and the further contention
that Ndileka Mtoba and by
extension the respondent, has a right of permanent occupation does
not raise a genuine or
bona
fide
dispute
of fact. These contentions are mischievous and obfuscatory in the
extreme and efforts to seek clarity during oral argument
were
regrettably not met with any constructive assistance other than
repetition. The undisputed facts when applied to the evidentiary
requisites in
Chetty
v Naidoo
taken
together with the best evidence do not disentitle the applicant to
the relief it was granted.
[17]
In the light of the above
finding it is unnecessary to consider the issue of non-joinder of the
Master and the executor of Nodi
Mtoba’s estate. No clear
evidence was tendered as proof that an executor was appointed nor was
any indication given as to
which office of the Master in the Eastern
Cape has the estate been reported and registered. In any event the
issue raised implicates
the administration of the relevant estate and
does not, on the undisputed facts, affect the merits of the eviction.
[18]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016]
JOL 36940
(SCA) at paragraphs [16]-[17], and quoting only where
relevant, the following is stated in seeking leave to appeal:
“…
leave
to appeal … must not be granted unless there truly is a
reasonable prospect of success. Section 17(1)(a) … makes
it
clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success, or there is some other compelling reason why it
should be heard…An applicant for leave to appeal
must
convince the court on proper grounds that there is a reasonable
prospect or realistic chance of success on appeal. A mere
possibility
of success, an arguable case or one that is not hopeless, is not
enough. There must be a sound, rational basis to conclude
that there
is a reasonable prospect of success on appeal.”
[19]
The application for leave to
appeal does not withstand the appropriate test.
COSTS
[20]
The opposition to the main
application had no prospect of success and for reasons already dealt
with in this judgment neither did
the application for leave to
appeal. In argument I was informed from the bar by applicant’s
counsel that the respondent was
forewarned soon after delivery of the
application for leave to appeal that in the event of the application
being persisted with
the applicant would seek a punitive costs order
against the respondent. This disclosure was not disputed in reply.
[21]
Furthermore, I take heed of
the applicant’s undisputed plea that it is being frustrated in
its endeavours to reclaim its property
and that it presently suffers
ongoing and severe financial prejudice having to bear the burden of
servicing monthly repayment of
the mortgage bond for the purchase of
the property together with insurance premiums in sundry amounting to
some R24092.22.
[22]
In the circumstances I make
the following order:
The
application for leave to appeal is dismissed with costs, such costs
to be paid by the respondent as between attorney and client.
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicant:
C. D. Kotze
Instructed
by Sityana Brittan Inc, c/o Huxtable Attorneys, Makhanda /
Grahamstown (Ref: Mr Huxtable), Tel: 046-622 2961
For
the Respondent: M. Tshiki,
Tshiki & Sons Inc., (Ref Mr. M. Tshiki), Tel: 076 118
8459,
c/o Mgangatho Attorneys, Makhanda / Grahamstown, Tel: 046-622 2688
Date
heard:
02 March 2022
Date
delivered: 08
March 2022
[1]
Founding affidavit, annexure GL3