Du Plessis v Prophitius and Another (204/08) [2009] ZASCA 79; 2010 (1) SA 49 (SCA); [2009] 4 All SA 302 (SCA) (3 June 2009)

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Du Plessis v Prophitius and Another (204/08) [2009] ZASCA 79; 2010 (1) SA 49 (SCA); [2009] 4 All SA 302 (SCA) (3 June 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 204 / 08
ANDRIES
PETRUS DU PLESSIS Appellant
and
RICHARD
PROPHITIUS First Respondent
ANNA
MARGARETHA PROPHITIUS Second
Respondent
___________________________________________________________________
Neutral citation:
Du Plessis v Prophitius and Another
(204/08)
[2009] ZASCA 79
(3 June 2009)
CORAM:
NAVSA, VAN HEERDEN, PONNAN, SNYDERS JJA and
KROON AJA
HEARD:
22 MAY 2009
DELIVERED:
3 JUNE 2009
SUMMARY: Immovable property – transfer of ownership – validity
of.
___________________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The High Court (Durban)
(Nicholson J sitting as court of first instance).
The appeal
is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA
(NAVSA, VAN HEERDEN, SNYDERS JJA and KROON AJA
concurring):
[1] The real point in issue in this appeal is the ownership of an
undeveloped stand situated on the south coast of KwaZulu-Natal,
more
fully described as Erf 757, Palm Beach, Registration Division ET, in
extent 1374 square metres (the property). The facts are
not in
dispute. A useful starting point is the history of the property.
[2] On 31 March 1989, Robert and Betsy Campbell (the trustees),
acquired the property in their capacity as trustees on behalf of
the
Campbell Children's Trust (the trust). On 22 January 2004, a written
agreement of purchase and sale was concluded between the
Trust and
Whitkel Properties CC (Whitkel)
1
in respect of the property for the sum of R45 000.
[3] On 3 June 2004, the original deed of transfer (TE7413/89) in
respect of the property was furnished by the trust to the
conveyancing
attorney who had been appointed in terms of the
agreement to effect transfer of the property to Whitkel. During
September 2004,
a meeting of the trustees resolved to sell the
property to Whitkel for the sum of R45 000 and authorised Robert
Campbell (Campbell),
in his capacity as trustee, to sign such
documents as may have been necessary for the registration of the
transfer into the name
of Whitkel. On 9 September 2004, Campbell duly
signed the power of attorney on behalf of the trust to cause transfer
of the property
to pass to Whitkel.
[4] On 28 October 2004, Richard and Anna Margaretha Prophitius (the
respondents), made a written offer to purchase the property
for the
sum of R195 000. The offer was accepted by the trustees on
behalf of the trust two days later. As the trust claimed
to have lost
the original title deed, an application was made to the Registrar of
Deeds, Pietermaritzburg
2
in terms of Regulation 68 of the Regulations made in terms of
s 10
of
the
Deeds Registries Act 47 of 1937
for the issue of a copy of the
title deed. In his affidavit in support of that application, Campbell
stated that the title deed
'... has been lost or destroyed and
notwithstanding diligent and extensive search cannot be found. The
circumstances of the loss
is unknown to me.' That allegation, to the
knowledge of Campbell, was false.
[5] In compliance with the Regulation, an advertisement was placed in
the
South
Coast Herald
on 3 December 2004 informing all
interested persons of the trust's intention to apply for the issue of
a certified copy of the
title deed of the property ‘which has been
lost or destroyed’. The Registrar of Deeds allowed transfer of the
property to proceed
without the original title deed and after due
compliance with all of the other formalities, the property was
transferred to and
registered in the names of the respondents by the
Registrar of Deeds on 15 February 2005.
[6] On 15 February 2005 and after the payment of disbursements, the
balance of the purchase price due to the trust (R176 921.81)
was
transferred into its bank account by the conveyancing attorney.
[7] In the meanwhile, on 26 December 2004, Whitkel concluded a
written agreement of purchase and sale in respect of the property

with the appellant, Andries du Plessis, for the price of R165 000. On
5 May 2005, there was a simultaneous transfer of the property
from
the trust to Whitkel and in turn from Whitkel to the appellant, and
the balance of the purchase price (R39 423.97) was paid
to the trust.
During August 2005, concerned at not having received any rates
accounts from the local authority in respect of the
property, the
respondents caused enquiries to be made through their attorney with,
inter alia, the Registrar of Deeds. In response
the Registrar of
Deeds wrote:
'According to the records of this Office [the property]
is registered in two different names as owners and held by two
different
Deed of Transfers, namely No. T20531/2005 and No.
T6506/2005 respectively.
The above registrations have resulted in a double
registration.
[The property] cannot be dealt with by any of these two
owners until the High Court Order has been made regarding the
rightful owner
of the property.'
[8] An exchange of correspondence between the appellant and the
respondents in an endeavour to resolve the matter amicably proved

fruitless. Impasse having been reached, the order alluded to in the
letter of the Registrar of Deeds was sought by the respondents
in the
Durban High Court. That application was opposed by the appellant, who
moreover launched a counter-application. Each party
sought, in
addition to the usual orders relating to costs, an order that:
(a) they be declared to be the rightful owner of the property;
(b) the transfer of the property to the other party be set aside;
(c) the Registrar of Deeds be directed to amend the records in the
Deeds Registry to give effect to the preceding orders.
[9] Before Nicholson J the application succeeded and the
counter-application failed. With the leave of the learned judge, the
matter now serves before this Court on appeal.
[10] In
Legator McKenna Inc v Shea
(143/2008)
[2008] ZASCA 144
(27 November 2008)
this court held that ‘the
time has come for [it] to add its stamp of approval to the viewpoint
that the abstract theory of transfer
applies to immovable property as
well’ (para 21).
Brand JA, writing for a unanimous court
stated (para 22):
’
In accordance with the abstract
theory the requirements for the passing of ownership are twofold,
namely delivery – which in the
case of immovable property, is
effected by registration of transfer in the Deeds Office – coupled
with a so-called real agreement
or 'saaklike ooreenkoms'. The
essential elements of the real agreement are an intention on the part
of the transferor to transfer
ownership and the intention of the
transferee to become the owner of the property (see eg
Air-Kel
(Edms) Bpk h/a Merkel Motors v Bodenstein
1980 (3) SA 917
(A) at 922E-F;
Dreyer
and Another NO v AXZS Industries (Pty) Ltd
[2006
(5) SA 548
(SCA)] para 17). Broadly stated, the principles applicable
to agreements in general also apply to real agreements. Although the

abstract theory does not require a valid underlying contract, eg
sale, ownership will not pass – despite registration of transfer
–
if there is a defect in the real agreement (see eg
Preller
v Jordaan
1956 (1)
SA 483
(A) 496;
Klerck
NO v Van Zyl and Maritz NNO
[1989 (4) SA 263
(SE) at] 274A-B; Silberberg and Schoeman [
The
Law of Property
5ed
(by Badenhorst, Pienaar and Mostert)] 79-80).
[11]
As I understood the argument on behalf
of the appellant, it was contended that the trust as transferor had
no intention to transfer
ownership to the respondents. It is so that
at the moment of passing of ownership the transferor must have the
intention of transferring
ownership (
animus transferendi domini
),
which supplies the subjective element for the passing of ownership.
Instead, so the contention goes, the trust was indifferent
as to
whether or not transfer eventuated. I cannot agree. In my view all
the facts point firmly to an intention on the part of
the trust to
successfully cause transfer of the property to be registered into the
names of the respondents. Thus, on 10 January
2005, the trust adopted
a resolution authorising transfer to the respondents. To that end,
Campbell was mandated to sign all such
documents as may have been
necessary. Pursuant to that resolution, during the succeeding week,
Campbell signed an ‘affidavit
by transferor’, a ‘certificate in
respect of a transfer from a trust’ and a ‘power of attorney to
transfer’ the property
to the respondents. Those in my view were
not the hallmarks of indifference, but rather positive acts with a
single ultimate goal
in mind – namely the transfer of the property
into the names of the respondents for a price far in excess of that
stipulated
in the prior sale.
[12] The second string to counsel’s
bow
was that the trust was motivated by a fraudulent intent. Assuming
that to be so, that does not detract from the trust’s genuinely

held intention to cause transfer of the property to be effected into
the names of the respondents. If fraud was the motive, then
the
trust’s ultimate goal would have been the securing of payment of
the higher purchase price offered by the respondents. That,
in turn,
was dependent upon the successful registration and transfer of
the property into the names of the respondents. Were the property
not
to have been transferred, the fraudulent purpose would not have been
achieved. It follows that the trust would in those circumstances
have
felt obliged to do all that was required of it with the requisite
intention to ensure successful registration. That it ultimately
did.
[13] As to costs. The matter was devoid of any legal or factual
complexity. There was thus no warrant for the employment of the

services of two counsel by the respondents on appeal. Mr Kemp
conceded as much. In those circumstances it would be wholly
unjustified
to mulct the appellant with those costs. The costs
incurred by the respondents consequent upon the employment of two
counsel accordingly
falls to be disallowed.
[14] In the result the appeal is dismissed with costs.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: P M van Ryneveld
Instructed
by:
Schürmann
Joubert Attorneys
Pretoria
Symington
and De Kok
Bloemfontein
For
Respondent: K J Kemp SC
S
I Humphrey
Instructed
by:
H
P Steenkamp Attorneys
Ballito
McIntyre
& Van Der Post
Bloemfontein
1
Cited as the 3
rd
Respondent in the court below but who took no part in the
proceedings.
2
The 5
th
respondent in the court below who took no part in
the proceedings.