About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2021
>>
[2021] ZAMPMBHC 2
|
|
Neves v Neves N.O. and Others (2108/2017) [2021] ZAMPMBHC 2 (8 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 2108/2017
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:NO
REVISED: YES
08/03/2021
In the matter between:
PETER
NEVES
Applicant
and
ELIZABETH
IRENE NEVES N.O.
First
Respondent
PRICILLA
FRANCINA RAMSBOTTOM N.O.
Second
Respondent
CHRISTOPHER
GILBERT NEVES N.O.
Third
Respondent
J U D G M E N T
MASHILE J:
INTRODUCTION
[1]
The Applicant seeks relief in the following terms:
1.1
Declaring
the
registration of transfer of ownership of
Erf
[....], [....]
and
[....]
Kamhluswa- A Extension 1 Township
(“the properties”) into the name of the Peter Neves Will
Trust (“the Trust”) and the causa that underpins
the
transaction concluded on 21 August 2001 between the Applicant and the
Respondents in their representative capacities as trustees
of the
Trust invalid and unenforceable; and
1.2
Directing the Respondents jointly and severally to register transfer
of ownership of the properties back into
the name of the Applicant,
alternatively directing the Sheriff of this Court to sign all
documents necessary to give effect to
the transfer of the property
from the Trust to the Applicant.
[2]
The application is opposed by the Respondents. Firstly, the
Respondents have listed
a number of points
in
limine some of
which, if proved well-grounded, may in fact be dispositive of the
matter. The Respondents’ main defence is
that the transaction
is valid and as such the transfer into the name of the Trust is sound
and justified. Of the six points
in
limine raised by the
Respondents three are material non-joinder. On 27 May 2019, this
Court, per Matshitse AJ, granted the Applicant
an order to join the
Third Respondent, the joinder disposes of the first two points
in
limine
and leaves the remaining four for determination. These
points are:
2.1
Non-joinder of the Registrar of Deeds;
2.2
Existence of material disputes of fact;
2.3 The
papers of the Applicant do not disclose a cause of action against the
Second Respondent;
2.4
Prescription.
[3]
Apart from the above, the Respondents have also raised important
procedural non-compliance
with both the Uniform Rules and Practice
Manual by the Applicant. Prior to the allocation of the date of
hearing, the parties had,
through Form B, committed themselves to
certain dates on which they had undertaken to discharge their
respective duties. It is
common cause that the Applicant has failed
to observe the management directive order that was granted in that
regard in consequence
of which the Respondents delivered a Notice in
terms of Rule 30A(1) read with Rule 37A.
[4]
As an acknowledgment of the non-observance of the management
directive order, The
Applicant launched a Condonation Application in
terms of Rule 27 to address the complaints. By the time this matter
served before
this Court, there was no answering affidavit on file
opposing the condonation application. To save time and purely to make
certain
that this matter does not return to this Court in one form or
another, I have chosen to grant the condonation application so that
the court can address the issues raised in the main application once
and for all.
FACTUAL MATRIX
[5]
Before considering the points
in limine
, it will be useful to
first describe the factual background against which the claim is
founded on the one hand, and defence and/or
points
in limine
are raised on the other. On 21 September 2001, the Applicant and the
Respondents as trustees of the Trust with Registration Number
IT
13266/1996
concluded an oral agreement in terms of which:
5.1 The Applicant would
sell the following three immovable properties described as
hereinunder:
5.1.1
Erf [....]
Kamhlushwa
–A Township, Registration division J.U Province
of Mpumalanga in extent of 1988
(One Thousand Nine Hundred and
Eighty-Eight)
Square Meters);
5.1.2
Erf [....]
Kamhlushwa
–A Township, Registration division J.U Province
of Mpumalanga in extent of 2000
(Two Thousand)
Square Meters);
and
5.1.3
Erf
[....] Kamhlushwa
–A Township, Registration division J.U Province of Mpumalanga
in extent of 5910
(Five
Thousand Nine Hundred and Ten)
Square
Meters).
5.2 For purposes of
compliance with The provisions of the
Alienation of Land Act 68 of
1981
, as amended, the parties would subsequently conclude a written
sale agreement;
5.3 No money would
exchange hands between the Trust and the Applicant for the sale and
transfer of the properties but Their acquisition
by the trust would
serve as a direct investment of the Applicant into the business of
the Trust.
[6]
According to the Applicant, following the conclusion of the oral
agreement, the Trust
took registration of transfer of the properties
into its name based on transferring documents annexed to his founding
affidavit
as
PN1
to
PN18
. Without diminishing the
significance of the other annexures, I will be making reference to,
and laying more emphasis on
PN2, PN3, PN7,
PN11, and PN15
later in this judgment. As is evident from the provisions of the
three title deeds attached to the founding affidavit of the Applicant
as
PN19
to
PN21,
the properties were registered into
the name of the Trust by the deeds office
FIRST POINT
IN
LIMINE -
NON-JOINDER OF THE REGISTRAR OF DEEDS
[7]
The argument by the Respondents here is that to the extent that the
Applicant seeks
the declaration of invalidity of the registration of
transfer of the properties into the name of the Trust by the
Registrar of
Deeds (“the Registrar”) effected in 2001 and
that he now wants the reversal of the act through the same medium, it
should not take a lot to appreciate that the Registrar has a direct
and substantial interest in the matter. For this reason, contend
the
Respondents, it is unquestionable that the Registrar ought to have
been joined to these proceedings.
[8]
In the case of
Bowring NO v Vrededorp Properties CC and Another
the court stated the following about the enquiry that must be
undertaken when deciding on whether a party ought to be joined or
not:
“…
.
the enquiry relating to non-joinder remains one of substance rather
than the form of the claim. (See eg Amalgamated Engineering
Union v
Minister of Labour
1949 (3) SA 637
(A) at 657.) The substantial test
is whether the party that is alleged to be a necessary party for
purposes of joinder, has a legal
interest in the subject matter of
the litigation, which may be affected prejudicially by the judgment
of the court in the proceedings
concerned (see eg Aquatur (Pty) Ltd v
Sacks
1989 (1) SA 56
(A) at 62A-F; Transvaal Agricultural Union v
Minister of Agriculture and Land Affairs
2005 (4) SA 212
(SCA) paras
64 66).”
[9]
In Erasmus:
Superior Court Practice
, Vol 2 at D1-125 the
following is stated:
“
The
rule is that any person is a necessary party and should be joined if
such person has a direct and substantial interest in
any
order the Court might make, or if such an order cannot be sustained
or carried into effect without prejudicing that party
,
unless the Court is satisfied that he has waived his right to be
joined.”
[10]
Other than the authorities mentioned above, it is significant that
the joinder of the Registrar
in these kind of transactions is
regulated by statute. In this regard, it is instructive to refer to
Section 97 of the Deeds Registries
Act headed:
Notice to
registrar of application to court.
The Section
provides
as follows:
“
(1)
Before
any application is made to the court for authority or an order
involving the performance of any act in a deeds registry,
the
applicant shall give the registrar concerned at least seven days'
notice before the hearing of such application and such registrar
may
submit to the court such report thereon as he may deem desirable to
make.
(2)
Subject
to notice in terms of subsection (1) being given to the registrar
concerned, any order made by a court having jurisdiction
over a
person in respect of that person's property or rights to property
situate in another province shall be given effect to by
the registrar
of such other province without the necessity of having such order
confirmed by the court of the province in which
the property is
situate.”
[11]
In view of the legal guideline provided by these authorities, the
Registrar’s direct and
substantial interest in the matter is
indubitable and cannot be reduced to oblivion as the Applicant would
have this Court believe.
The response of the Applicant to the
non-joinder of the Registrar is, to say the least, shocking. The
Applicant contends that the
role of the Registrar in these types of
transactions is minimal in that it consists in execution and storage
of documents. The
roles mentioned by the Applicant are certainly
correct but how can they be peripheral when registration of transfer
of the properties
into the name of the Trust was effected through an
act of execution?
[12]
The Applicant seems to be ignorant of the fact that for the transfer
to be reversed, the papers
will be required to be executed by the
very Registrar whose role he regards as easily dispensable. Any court
order directing that
the registration of transfer is to be reversed
will necessarily affect or involve the Registrar. As such, the Deeds
Office should
be part of these proceedings. The Applicant’s
omission to join the Registrar to these proceedings is staggering
especially
after he was alerted to the significance of the role that
the Registrar is expected to play in the registration of transfer of
ownership back into the name of the Applicant. The non-joinder of the
Registrar is therefore fatal to this application and the point
in
limine
is upheld.
SECOND POINT
IN
LIMINE
- PRESCRIPTION
[13]
The Respondents’ contention on prescription is that if it is
common cause, as it seems,
that the Trust took transfer of ownership
of the properties during late 2001 and that no cash exchanged hands
between the parties
as consideration, the claim as outlined by the
Applicant in particular, of declaring the transaction that happened
in late 2001
has prescribed. The Applicant’s response to this
is unbelievably that prescription is based on the existence of a debt
being
owed by one party to another. Since no such debt is owed by the
Applicant to the Trust, continues the argument, prescription does
not
find application.
[14]
Section 10
of the
Prescription Act, 68 of 1969
is headed: Extinction
of debts by prescription,
and
it stipulates that ‘s
ubject
to the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of the
period which in
terms of the relevant law applies in respect of the prescription of
such debt.
Section 11
of the same Act is headed:
Periods
of prescription of debts.
Section
11(d)
is the most relevant to this and it provides that ‘s
ave
where an Act of Parliament provides otherwise, three years in respect
of any other debt. ‘The debt concerned here is governed
by
Section 11(d)
of the
Prescription Act. The
word, debt, is not defined
in the
Prescription Act, which
means that one must look elsewhere for
guidance.
[15]
That important direction was given by the Constitutional Court in
Ethekwini Municipality v Mount Haven (Pty) Ltd
2019 (4) SA 394
(CC)
when it held that a claim to transfer immovable property is
essentially a claim to deliver goods and in turn, any claim to this
effect would therefore also prescribe within three years. The
following passage uplifted from the case is significant insofar as
it
clarifies what would constitute a debt:
“
In
terms of the dictionary meaning of 'debt' accepted in Makate,
an obligation to pay money, deliver goods, or render
services is
included under the definition and would prescribe within three years
under the
Prescription Act. Mat
erial or corporeal goods consist of
property, movable or immovable. Ownership of movable corporeal
property is transferred to another
by delivery, actual or deemed, of
the goods. That is practically impossible in the case of immovable
property like land. Hence
it is an accepted principle of venerable
ancestry in our law that the equivalent of delivery of movables is,
in the case of immovable
property, registration of transfer in the
deeds office. A claim to transfer immovable property in the name of
another is thus a
claim to perform an obligation to deliver goods in
the form of immovable property. It is a 'debt' in the dictionary
sense accepted
in Makate. It really is as simple and
straightforward as that.”
[16]
Once the definition of a debt covers the registration of transfer of
ownership of an immovable
property, it becomes manifest that the
claim by the Applicant is affected and that it ought to surrender to
the meaning ascribed
thereto. It is a matter of record that the
registration of transfer of the properties in this matter occurred in
late 2001. Thus,
if the period of prescription is three years as per
Section 11(d)
of the
Prescription Act, the
claim prescribed as early
as late 2004. It being indisputable that the Applicant only launched
this application in 2017, the claim
has long prescribed as maintained
by the Respondents. The Applicant’s approach on what the
meaning of debt is in terms of
the
Prescription Act is
totally
misguided and it is rejected. This point
in limine
is as such,
upheld.\
THIRD POINT
IN
LIMINE
– FOUNDING PAPERS DO NOT DISCLOSE A CAUSE OF ACTION
[17]
The Respondents allege that a perusal of the Applicant’s
founding papers presents incontestable
inconsistencies between the
relief sought and the allegations of fact. That this is, so is
apparent from the following allegations
uplifted directly from his
founding affidavit:
17.1 The Applicant,
as the owner of the subject properties, and the Respondents, as
representatives of the Trust, entered
into an ostensible oral
agreement in terms whereof the subject properties will be transferred
into the name the Trust;
17.2 The transfer
of the subject properties in the name of the Trust would serve as a
direct investment of the Applicant into
the business of the Trust;
17.3 The
acquisition of the properties by the Trust would attract no mutual
duty to pay the Applicant upon registration of
ownership of transfer;
17.4 Following the
above, the Trust took transfer of the properties during October 2001.
[18]
Among the transferring documents attached by the Applicants in
support of his claim are Annexures
PN3
,
PN 11
and
PN15
by which the Applicant Transfers
Erf [....], [....]
and
[....]
to the Trust respectively. The wording of these annexures is the same
except that each refers to a different erf and the relevant
parts
read:
“
I,
PETER
NEVES
Identity
No: [....]
unmarried
Hereby
transfer to the Trustees from time to time of Peter Neves Will Trust
– IT13266/1996 hereby represented by Elizabeth
Irene Neves in
her capacity as Trustee, duly appointed hereto by Letters of
Authority issued by the Master of the Supreme Court
Pretoria on 7
October 1996,
all
my rights, title and interest in and to the land held by me
…”
.
[19]
The claim of the Applicant is to nullify the transaction concluded in
2001 on the ground that
there was no
causa
as the parties had
failed to conclude a written agreement in line with the provisions of
the Deeds Registries Act. Simultaneously
and once he has achieved the
aforesaid invalidation, he seeks relief that the transaction be
reversed so that registration of transfer
of ownership is registered
into his name. That said, it is notable that the founding papers
together with the annexures contain
unequivocal intention to register
transfer of ownership in favour of the Trust and in fact that is
precisely what ensued. The conflict
between the relief sought and the
allegations of fact set out in the founding papers cannot be more
palpable.
[20]
The manner in which the Applicant responds to this point
in limine
suggests that he does not appreciate the contradiction between the
relief that he seeks and the allegations of fact contained in
his
founding papers. The annexures and Annexure
PN2
exhibit clear
intention to pass transfer to the Trust yet this claim is directed at
undermining that plain intention to pass transfer.
The point
in
limine
must for those reasons be upheld.
CONCLUSION
[21]
Any of the three points
in limine
constitutes satisfactory
reason to dismiss the Applicant’s claim. In the circumstances,
it will serve no purpose to consider
a further preliminary point
concerning whether or not there exist material disputes of fact.
Equally, traversing the merits when
any of the points
in
limine
is dispositive of the whole matter is academic and futile.
ORDER
[22]
Against that background, I make the following order:
1.
The
application is dismissed with costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 08 April 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Mr M Singwane
Instructed
by:
Singwanw & Partners Attorneys
Counsel for the
Respondents:
Adv J De Beer
Instructed
by:
Wikus Du Toit Attorneys
Date of
Hearing:
27 October 2020
Date of
Judgment:
08 April 2021