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[2021] ZAGPJHC 93
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Zwane and Others v Dongo and Others (25416/2019) [2021] ZAGPJHC 93 (20 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
Date:
20
th
July
2021
CASE
NO
:
25416/2019
DATE
:
20
th
JULY 2021
In the matter between:
ZWANE
,
TOBI ASLITA
First Applicant
MALOME
,
THEMBIKILE ESELINAH
Second Applicant
ZULU
,
JABULILE MINIE
Third Applicant
ZULU
,
MOSES
Fourth Applicant
and
DONGO
,
THABO
WALTER
First Respondent
DONGO
,
THABO WALTER N O,
In
his official capacity as duly appointed
Executor
in the Deceased Estate:
DONGO
,
ANDILE
Second Respondent
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT OF
HOUSING, GAUTENG PROVINCE
Third Respondent
REGISTRAR
OF DEEDS,
JOHANNESBURG
Fourth Respondent
Coram:
Adams
J
Heard
:
19 July 2021 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
20 July 2021 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 10h00 on 20
July 2021.
Summary:
Opposed application – final mandatory
interdictory relief –
section
6 of the Deeds Registries Act, Act 47 of 1937
–
no legal basis for the relief claimed – applicants’ cause
of action not supported by the provisions of the
said section –
applicants’ application refused –
ORDER
(1)
The first, second, third and fourth
applicants’ application against the first and second
respondents is dismissed, with costs.
(2)
The first, second, third and fourth
applicants, jointly and severely, the one paying the other to be
absolved, shall pay the first
and second respondents’ costs of
this opposed application.
JUDGMENT
Adams J:
[1].
This is an
opposed application by the first, second, third and fourth applicants
for vindicatory relief in relation to their alleged
ownership of
immovable property in Diepkloof, Soweto (‘the property’).
The first and second respondents are the registered
owners of the
property, they having purchased same at a Sale in Execution on 26
October 2017, pursuant to a Warrant of Execution
issued by the
Gauteng Division of the High Court, Pretoria, on 2 August 2017.
[2].
The property
is four transfers removed from the applicants in that it has been
registered in the names of no less than four persons
since they last
had an interest in the property, as a ‘family home’, in
terms of and pursuant to a Residential Permit
issued by the
Government of the day on 6 September 1978. The applicants claim –
rather belatedly and some thirteen years
after the fact – that
the transfer of the property on 28 February 2008 from the fourth
applicant to Florence and Theophilu
Bekinkosi Zulu was unlawful. The
property was initially registered in the name of the fourth
applicant, so the applicants claim,
on the understanding that he
would ‘hold’ the property as a ‘family home’
on behalf of the children of
their late mother and father. He was
supposedly not to treat the property as his own as he apparently did
by selling the property
to Mr and Ms Zulu during 2008.
[3].
The property
was apparently on-sold from Mr and Ms Zulu to a Dumisani Cyril
Mntambo after a foreclosure of the property, which was
then
registered in his name on 9 March 2012. Mr Mntambo thereafter sold
the property to Mr Mfula Wonga, who took transfer of the
property, in
a transfer on the same day simultaneous with the registration of the
transfer in the name of Mr Mntambo. It is against
Mr Wonga whom
Standard Bank obtained a judgment, together with an Order to
specially execute against the property, whereafter the
first and
second respondents purchased the property at the subsequent Sale in
Execution.
[4].
The applicants
therefore apply for the vindication of the property. In their notice
of motion, the applicants request that the title
deed under which the
property is held by the first and second respondents be cancelled and
also for an order directing the Registrar
of Deeds to re-register the
property into their names.
[5].
The
application is based on the provisions of section 6 of the Deeds
Registries Act, Act 47 of 1937 (‘the Act’) for
the
cancellation of Deed of Transfer number T40835/2017 in favour of the
first and second respondents in respect of Erf 13835 Diepkloof
Township (‘the property’). In terms of the said Deed of
Transfer, the transfer of the property into the names of Mr
and Mrs
Dongo was registered on the 14
th
of November 2017.
[6].
Section 6 of
the Act provides as follows:
‘
6
Registered
deeds not to be cancelled except upon an order of court –
(1)
Save as is otherwise provided in this Act or in any other law no
registered deed of grant, deed of transfer,
certificate of title or
other deed conferring or conveying title to land, or any real right
in land other than a mortgage bond,
and no cession of any registered
bond not made as security, shall be cancelled by a registrar except
upon an order of Court.
(2)
Upon the cancellation of any deed conferring or conveying title to
land or any real right in land other
than a mortgage bond as provided
for in subsection (1), the deed under which the land or such real
right in land was held immediately
prior to the registration of the
deed which is cancelled, shall be revived to the extent of such
cancellation, and the registrar
shall cancel the relevant endorsement
thereon evidencing the registration of the cancelled deed.’
[7].
The main
difficulty with the application of the applicants is that it lacks a
legal basis. Section 6 (2) of the Act expressly provides
that, in the
event of the cancellation of a deed, the previous deed shall be
revived, which means that ownership of the property
is to revert back
to Wonga. What then would be the point of cancelling the Title Deed
in question? The point simply is that there
is no legal basis for the
mandatory order prayed for by the applicants that the property be
registered in their name. A further
difficulty is that the property
was sold to and transferred into the names of the first and second
respondents pursuant to a court
order, which has to date hereof not
been rescinded and which therefore remains extant. The rhetorical
question to be asked is how
this court can grant an order at variance
with another order of the High Court.
[8].
For these
reasons alone, the applicants’ application stands to be
dismissed.
[9].
It is, in view
of this conclusion reached by me, not necessary to deal with any of
the other grounds of opposition raised by the
first and second
respondents. Suffice to say that, at first blush, there appears to be
merit in a number of these defences, including
the points
in
limine
. In
that regard, I have no doubt that the applicants ought to have joined
in these proceedings the likes of Standard Bank and Mr
Wonga, as well
as all of the previous registered owners of property, who clearly
have a vested interest in this matter.
[10].
Moreover, as
submitted by the first and second respondents, immovable property
validly sold at a judicial sale in execution cannot,
as a general
rule, after registration of the property, be vindicated in terms of
the
rei
vindicatio
from a
bona
fide
purchaser. In that regards see:
Oriental
Products (Pty) Limited v Pegma 178 Investment Trading
[1]
,
in which Shongwe JA at para 12 held as follows:
‘
[12]
It is trite that our law has adopted the abstract system of transfer
as opposed to the causal system
of transfer. Under the causal system
of transfer, a valid cause (
iusta
causa
)
giving rise to the transfer is a
sine
qua non
for the transfer of ownership. In other words, if the cause is
invalid, e g non-compliance with formal requirements, the
transfer of ownership will also be void — … …
Under the abstract system the most important point is that there
is
no need for a formally valid underlying transaction, provided that
the parties are
ad
idem
regarding the passing of ownership:
Meintjies
NO v Coetzer and Others
2010 (5) SA 186
(SCA).
[11].
The point is
that the applicants do not even begin to address this issue in their
application. I reiterate that there is no legal
basis for the relief
claimed by the applicants in this application.
[12].
In sum, there
is no legal foundation for the applicants’ application. It
stands to be dismissed.
Costs
[13].
The general rule in matters of costs is
that the successful party should be given her or his costs, and this
rule should not be
departed from except where there are good grounds
for doing so.
[14].
In casu
, I
can think of no reason why I should deviate from this general rule
and I therefore intend granting costs in favour of the first
and
second respondents against the first to fourth applicants.
Order
[15].
Accordingly, I make the following order: -
(1)
The first, second, third and fourth
applicants’ application against the first and second
respondents is dismissed, with costs.
(2)
The first, second, third and fourth
applicants, jointly and severely, the one paying the other to be
absolved, shall pay the first
and second respondents’ costs of
this opposed application.
L R ADAMS
Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON:
19
th
July 2021 – in a ‘virtual hearing’
during a videoconference on the
Microsoft Teams
digital
platform
JUDGMENT DATE:
20
th
July 2021 – judgment handed down
electronically
FOR THE APPLICANTS:
Advocate B B Ntsimane
Cell no
: (060)
301-3496
Email
:
bntsimane@gmail.com
INSTRUCTED BY:
Baloyi Ntsako Attorneys
Cell no
: (011)
056-6735
Email
:
info@bblegal.co.za
FOR THE FIRST AND SECOND RESPONDENTS:
Attorney Marianne Pretorius
Cell no
: (011)
761-1612
Email
:
marianne@mpattorney.com.za
INSTRUCTED BY:
Marianne Pretorius Attorneys
Cell no
: (011)
761-1612
Email
:
marianne@mpattorney.com.za
FOR THE THIRD AND FOURTH RESPONDENTS:
No appearance
INSTRUCTED BY:
No appearance
[1]
Oriental
Products (Pty) Limited v Pegma 178 Investment Trading CC
2011 (2) SA 508
(SCA)