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[2019] ZALMPPHC 49
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Bopape v Mashatole t/a Tswelopele CWJ Trading Enterprise Polish Shop and Another (HCA102/018) [2019] ZALMPPHC 49 (15 November 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
Case
No.HCA102/018
In
the matter between
MOHLAUME
MOSES BOPAPE
Appellant/Plaintiff
and
LESHIBA
MASHATOLE
t/a
TSWELOPELE
CWJ
Respondent /
Defendant
TRADING
ENTERPRISE POLISH SHOP
Case
no: 560/2016
THOMAS
MAROKANE t/a FISH AND
Respondent / Defendant
CHIPS
SHOP
Case
no: 561/2016
JUDGMENT
LAMMINGA
AJ
INTRODUCTION:
[1]
This matter came before us on appeal
from the Magistrate's Court. For ease of reference the Appellant
shall be referred to as the
Plaintiff and the Respondents shall be
referred to as the Defendants.
[2]
This appeal concerns a lease agreement
in respect of a property situated on communal land administered by a
tribal authority, but
the central issue is whether there is a lease
agreement between the parties.
BACKGROUND
The Pleadings
[3]
The Plaintiff sued out summons against
each of the two Defendants on case numbers 560/2016 and 561/2016, in
the Magistrate's Court,
Mankweng for payment of arrear rental in
respect of business premises situated at Nobody Coal Yard site 50
Nobody Mothibaskraal
(the 'Coal Yard'). The two cases were
consolidated and determined in one trial before the court a quo.
[4]
In the particulars of claim the Plaintiff sets out his cause of
action in that he
is the owner and lessor of the Coal Yard and that
he or his predecessor entered into an oral lease agreement with the
Defendants
allowing the Defendants temporary use of the premises
against payment of a monthly rental. He continues to aver that the
Defendants
were in arrears with payments in terms of the lease.
[5]
In their pleas the Defendants allege
that they entered into oral lease agreements with one Mr Molepo in
2010 and 2011 respectively,
that these lease agreements were never
terminated and that they never entered into any agreement with the
Plaintiff.
[6]
The Plaintiff replied that from April
2016 he is the legal possessor of the property and entitled to rent
the property out and collect
the rent on the property. He further
states that he was awarded possession and use of the property by the
Mothiba Traditional Council
in 2016, that he paid the arrear levies
due to the said council for the period 2001 to 2016 and that he
informed the Defendants
that he is now entitled to possession and use
of the property and the rental payable. He made a general averment
that the lease
of the property by the Defendants would continue on
the same terms as before, without pleading that it was agreed to by
them.
[7]
In rejoinder the Defendants reiterated
that they did not enter into a lease agreement with the Plaintiff and
that the Plaintiff
did not have any document constituting a
Permission to Occupy.
In the court a quo
[8]
When the matter came before the
magistrate for trial it was placed on record by the Plaintiff's legal
representative that the parties
agreed to the following:
(a)
That
it is common cause that the Coal Yard was allotted to Michael Bopape
(Mr Bopape), the father of the Plaintiff and that the
Defendants
rented the Coal yard from the owner
[1]
.
(b)
That
the parties agreed that:
(i)
customary law applies;
(ii)
the Defendants will start and
call Mr Rapaledi and Mr Molepo to prove ownership; and
(iii)
the Defendants would pay rent to
whomever the court decides is entitled to it.
(c)
The
question to be determined is who is entitled to the Coal Yard.
[9]
The legal representative for the
Defendants confirmed what was placed on record, but qualified it by
indicating that the parties
agreed that Mr Rapaledi testify first
since he is making funeral arrangements. This was thus a practical
consideration to assist
the witness to be excused early.
Evidence for the Defendants
[10]
Mr Rapaledi testified under oath and his evidence essentially was the
following:
He
bought the Coal Yard in 1986 for R5000-00 from Michael Bopape and
Tytha Bopape (the parents of the Plaintiff and Mr Rapaledi's
in-laws)
when they had financial difficulties. They went to the Chief's kraal
where they informed the Chief that Mr Rapaledi now
owns the site and
he was given documents - a letter of occupying the site from the
Chief - and he now had to make payments to the
Chiefs kraal in
respect of the Coal Yard. When he started to use the site there were
to buildings on the site. He changed the sign
at the site from
Bopape's Coal Yard to Kgasani Coal Yard and built 2 rooms on the
property. In 1994 he decided to relocate to Raseleka
village and sold
the site to Mr Molepo for R10000-00 . He took Mr Molepo to the Chiefs
kraal where Mr Molepo was required to pay
an amount for being an
outsider and the handover of the site to Mr Molpepo was made. Mr
Molepo made various improvements to the
property. Mr Rapaledi did not
keep the documents confirming the transfer from the Bopapes as he did
not foresee he might need them
after he made the transfer to Mr
Moplepo. When he sold the site to Mr Molepo, both Mr Bopape and his
wife were still alive and
they would not have allowed him to sell the
site if they only gave him permission to temporarily use it. He
contends that if they
did not want him to sell it , they would have
offered his money back to take back their property. Mr Bopape passed
away in 2005
and it was only on the day after the burial of Mr
Rapaledi's wife in 2015, that her family (the Bopapes) had their own
meeting
and demanded the papers for the Coal Yard from Mr Rapaledi.
He then informed them it was sold to Mr Molepo. In 2016 when the
Plaintiff
laid claim to the Coal Yard the matter was to be discussed
at the Tribal Council, but Mr Molepo was in Gauteng and they
proceeded
to allow the Plaintiff to pay the arrears without hearing
Mr Molepo. The Tribal authority made a mistake in allowing the
Plaintiff
to pay the arrear levies, since neither Mr Molepo nor Mr
Rapaledi had been approached about the arrear levies. The Plaintiff
waited
for the wife of Mr Rapaledi, being the person who witnessed
the arrangement to buy the Coal Yard from Mr Bopape and who was sent
to pay the money to Mr Bopape for the purchase, to die and then lay
claim to the property.
[11]
Mr Molepoalso testified under oath and
his evidence is summarised as follows:
He
bought the site from Mr Rapaledi in 1994 for R10 000-00. Theywent to
the chief and then to the Tribal Council where Mr Rapaledi
explained
to the council that he sold the site to Mr Molepo. The tribal
authority gave the go-ahead but due to Mr Molepo not being
a
resident, he had to pay R510-00 to be allowed to be considered a
resident there and to be able do business there. Due to the
changes
in government and the structures responsible for issuing the
Permission to Occupy, he never received the paperwork pertaining
to
the transaction. He made various improvements to the property and
continued to pay the levies to the tribal authority until
2009. He
misplaced the receipts after a previous court attendance, however. He
confirmed he entered into lease agreements with
the Defendants. The
tribal authority was fully aware of the transfer as he once rented to
a person without informing the tribal
authority and he was summoned
for doing so and fined R200. If the Plaintiff paid arrear levies he
did so on behalf of Mr Molepo,
but there was no agreement between
them to that effect. The tribal authority was not entitled to accept
payment from the Plaintiff
for the arrears owed by Mr Molepo. When
Plaintiff told the tenants to pay the rent to him instead of Mr
Molepo, they went to the
tribal authority and he was requested to
provide the documents indicating that he was paying the levies. He
was unable to attend
at the Tribal Council when he was called for a
subsequent meeting and requested a different date but was never given
another date
for the meeting. The tribal authority giving the
Plaintiff a recommendation in 2016 to carry on business on the site
was a mistake
as they were fully aware that he occupied the site.
Plaintiff's residence is across the street from the site, would thus
have been
aware of the activities at the site, but in all the years
since 1994 he was never approached by the Bopapes regarding the site.
It was only in 2016 when he was called by a person saying he is
Bopape who said he wanted to discuss the site. He disputes the
validity of the Plaintiff having been allocated the site in question.
[12]
Mr Malatji testified under oath as
follows:
He
was involved part time at the traditional authority before 2000 and
has been a member of the Traditional Council since 2000.
He became
chairperson of the headmen of Kgoshi Mothiba in 2013. Before 2000 he
attended meetings of the council whenever he was
available. He knows
the Plaintiff and the Defendants very well and he is aware of the
fact that Mr Rapaledi took over the site
from Mr Bopape and later
transferred it to Mr Molepo. The site was not sold, but rather the
business conducted there. Mr Molepo
was called to the tribal
authority when Plaintiff wanted allocation of the site due to the
fact that the tribal authority was aware
that Mr Molepo was the
person using that site. The whole point of attending at the tribal
authority was to inform the authority
that the site has now been
'moved from this one to another'. He confirmed that Mr Molepo was
charged for being an outsider to enable
him to use the said site.
Evidence
for the Plaintiff
[13]
The Plaintiff testified under oath and
his evidence was essentially as follows:
His
father, Mr Bopape, was granted a Permission to occupy the site known
as the Coal Yard. When his father became ill a family meeting
was
held where Mr Bopape told his children that he would give Mr Rapaledi
permission to use the site to provide for his family.
In 2016, when
the Plaintiff wanted to reclaim the site, Mr Rapaledi told him that
he had sold the site to Mr Molepo. Upon enquiring
at the Tribal
Authority he was told that the site is still allocated to Mr Bopape
and that there were outstanding fees. He paid
the fees and the family
resolved that he should be allocated the site as he is the youngest
born son. He was issued a receipt and
a letter recommending to the
Polokwane Municipality that Plaintiff be allowed to use the site for
a coal yard business. He did
notice improvements being made to the
site in the past, but assumed the people worked for Mr Rapaledi. The
estate of Mr Bopape
was never reported and no executor had been
appointed to date. Mr Molepo only rented the site from Mr Rapaledi.
The Plaintiff and
his family made no enquiries about the site until
2015 after the death of the Plaintiffs sister who was the wife of Mr
Rapaledi.
Mr Rapaledi left the village after he allowed Mr Molepo to
take over the site. Since 2005, after the death of Mr Bopape, the
family
made efforts to get the Coal Yard site back but only informed
the tribal authority of the passing of Mr Bopape and not of the
dispute
regarding occupation of the site as no-one was interested in
using the site.
[14]
Mr Mothiba testified under oath and his
evidence is summarised as follows:
He
has been involved with the traditional council from 1982 to 2013. He
knew the late Mr Bopape and that the Coal Yard was allocated
to Mr
Bopape in the seventies. He was not aware of any change in the
allocation of the said site up to 2013. He was however not
the only
person dealing with the allocation of sites as it was done
collectively by the council. He cannot admit or deny that Mr
Bopape
and Mr Rapaledi came to the office of the tribal authority to
document their agreement as he did not see documents to that
effect,
although he would have.
[15]
Mr M S Bopape also testified under oath
and stated essentially as follows :
The
Plaintiff is his younger brother. In 1988/9 he was approached by his
father first and later it was said in a meeting that he
intended to
give the site to Mr Rapaledi to use until Mr Bopape's children may
decide to use it. Before Mr Bopape passed away he
told the witness he
was trying to get his site back from Mr Rapaledi, but the latter was
avoiding him. He confirmed that in 1985/6
Mr Bopape was involved in a
court case and he even had to sell cattle due to the financial
difficulty at the time. He was not aware
of the Plaintiff being
approached to provide financial assistance. He conceded that he could
not deny that Mr Bopape and Mr Rapaledi
visited the tribal office to
document the transfer of the site to Mr Rapaledi.
[16]
Ms Kotho testified under oath but her
evidence did not contribute to the case as she has no knowledge of
the allocation of business
sites or the change in allocation of such
sites. She only noticed that after Mr Bopape passed away, that Mr
Rapaledi was using
the site.
Heads of Argument
[17]
After evidence was heard the court
requested written heads of argument from the legal representatives
and specifically raised the
question of jurisdiction of the
Magistrate's Court to make a declaratory order in respect of the
rights of the parties and whether
the court could grant relief net
pleaded nor prayed for. The heads filed in the Magistrate's Court are
not included in the papers
on appeal even though it was included as
annexures to the magistrate's written judgment. The record before
this court is thus incomplete
however this is not in my view a case
where the appeal could not be properly determined unless the relevant
part of the record
is made available.
Judgment of the court a quo
[18]
The learned magistrate found that there was no amendment of the
pleadings and that the order
as to who is the owner of the property
could not be granted since Mr Molepo had not been joined as a party
to the action. He further
found, after consideration and evaluation
of the evidence that the probabilities favoured the version of the
Defendants and that
there was no lease agreement entered into between
the Plaintiff and the Defendants.
Before this court
[19]
In this appeal the Plaintiff submitted that: (a) the trial court
erred in its finding that declaratory
order was being sought; (b) no
relief was being claimed against Mr Molepo and therefore the court
erred in finding that he should
have been joined; (c) Mr Molepo
should have intervened if he felt his rights were in issue; and (d)
the trial court made errors
in its factual findings that the
plaintiff did not prove he was the owner of the site and thus
entitled to the rental.
[20]
In opposition of the appeal it was submitted by the Respondents that:
(a) the Plaintiff requested
the court to make a finding as to who is
entitled to receive rental for the property as the rightful holder of
occupational rights
to the property which would constitute a
declaration of rights and falls outside the jurisdiction of the
magistrate's court; (b)
there is no evidence of any lease agreement
between the Plaintiff and the Defendants; (c) there was no onus on
the Defendants and
that the Plaintiff failed to prove he is the
rightful holder of any rights in respect of the said property.
[21]
During argument before this court the
parties were in agreement that the issue could not be ownership of
the immovable property
known as the Coal Yard, since it is situated
on communal land and therefor none of the persons claiming to be or
have been owners
were ever conferred individual ownership. This is
also the reason why the parties agreed before the trial in the court
a quo that
the entitlement to rental payments in respect of the Coal
Yard should be determined by the application of customary law. The
undisputed
evidence is that sites could not be sold, but in the case
of business sites, the business conducted on the site could be sold.
[22]
It is clear that from the outset the
Plaintiff and the Defendants' legal representatives incorrectly
identified the point in issue
to be determined by the court as being
that of ownership of the Coal Yard or that the Defendants should pay
rent to whoever is
found to be entitled to charge rent in respect of
the Coal Yard. This is simply so due to the cause of action as
pleaded and the
fact that the Plaintiff relies on an agreement
entitling him to rental from the Defendants.
[23]
The pleadings were never amended as
there was neither any application to amend nor any other indication
that the parties agreed
to amend the pleadings. It cannot be said
that the issue to be determined is who the owner of the property is
as that was never
the cause of action. In any event, in the light of
the disputes in respect of ownership and allotment of the site and
the fact
that Mr Rapaledi and Mr Molepo had an interest in respect of
such and order, the court could not have granted any such order or
make any determination which would affect their rights. As per
Nkabaninde ADCJ in
Matjhabeng Local
Municipality v Eskom Holdings Ltd and Others
2018 (1) SA 1
(CC)
at
para 92:
'No court can make findings
adverse to any person's interests, without that person first being a
party to the proceedings before
it.'
The order was not sought on the
pleadings and there was no amendment to that effect. The agreement
between the litigants that the
court had to determine ownership was
only made known on the date of trial. It could not have been expected
of Mr Rapaledi or Mr
Molepo to have intervened in the circumstances.
[24]
On a proper reading of the pleadings and in the light of the
admissions as stated before the
trial commenced, the cause of action
is clearly that there was a lease agreement entered into between the
Defendants and the Plaintiff
and or his predecessor and that in terms
of that lease agreement, the defendants owe rental to the Plaintiff.
[25]
The Plaintiff seems to want to have his cake and eat it too. On the
one hand he pleaded that
he is entitled to receive the rental from
the Defendants in terms of a lease agreement entered into between him
and or his predecessor
and the Defendants. The evidence that the
Defendants entered into lease agreements with Mr Molepo is not in
dispute and the Plaintiff's
legal representative placed on record
before commencement of the trial in the court a quo that if the court
were to find that the
Defendants entered into a lease agreement with
Mr Molepo as landlord, and the landlord changes, 'they would have to
abide by that'.
This point was reiterated during argument before this
court in that it was submitted that that the Plaintiff stepped into
the shoes
of Mr Molepo in terms of the common-law principle of 'huur
gaat voor koop', when he was allocated the site in 2016.
[26]
In
Genna-Wae Prop (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd
[1995] ZASCA 42
;
1995
(2) SA 926
(A) ([1995]ZASCA 42) at 939 A-C the operation of this
principle was summarised as follows:
'The
purchaser (new owner) is substituted ex lege for the original lessor
and the latter falls out of the picture. On being so substituted,
the
new owner acquires by operation of law all the rights of the original
lessor under the lease. At the same time the new owner
is obliged to
recognise the lessee and to permit him to continue to occupy the
leased premises in terms of the lease, provided
that he (the
lessee)continues to pay the rent and otherwise to observe his
obligations under the lease. The lessee, in turn, is
also bound by
the lease and, provided that the new owner recognises his rights,
does not have any option, or right of election,
to resile from the
contract. This is the impact of huur gaat voor koop in our modern
law.'
The
court also confirmed that the principle applies to successors in
title such as purchasers, usufructaries, legatees, donees and
the
like.
[2]
[27] This
argument may have assisted the Plaintiff if it was a matter where Mr
Molepo transferred rights
to the Plaintiff. It is however common
cause that there was no agreement of any nature between the Plaintiff
and Mr Molepo and
therefore Plaintiff did not step into the shoes of
Mr Molepo in respect of the lease agreement between Molepo and the
Defendants
since Mr Molepo did not transfer any right or title to the
Plaintiff. The reliance in the 'huur gaat voor koop' principle is
thus
misplaced.
[28]
On the other hand the Plaintiff
submitted that the court should apply customary law to determine who
is entitled to rent out the
site and to collect rental for use of the
site. That person, so it was submitted, must be found to be the
Plaintiff since Mr Bopape
could not have alienated his allocation of
the Coal Yard site in terms of custom. The Plaintiff, in
contradiction of the admission
and the essence of his pleadings
adduced evidence that Mr Molepo could not have acquired any rights in
respect of the property
since Mr Bopape did not transfer his
allotment to Mr Rapaledi and thus Mr Rapaledi could not transfer any
such rights to Mr Molepo.
The Plaintiffs assertion that in terms of
customary law there could not have been any lawful alienation would
negate the operation
of the 'huur gaat voor koop' principle which
presupposes alienation and an agreement between the initial lessorand
the lessee.
The evidence of the Plaintiff and his witnesses are that
the site was never allocated to either Mr Rapaledi or Mr Molepo and
was
transferred from the deceased Mr Bopape to the Plaintiff. It is
common cause that neither Mr Bopape nor the Plaintiff had entered
into any agreement for lease of the Coal Yard at any stage with the
Defendants. On this construction of the Plaintiff's case, the
'huur
gaat voor koop' principle does not find application.
[29]
Having found as stated above that it was
not for the court a quo to determine ownership in respect of the site
or who was entitled
to possession of the site I deem it necessary, in
the light of the submissions made and the grounds for the appeal to
deal with
issue of the onus. The Plaintiff submitted that the onus
was on the Defendants due to a plea of confession and avoidance. This
is not correct. The Plaintiff alleged that there was a lease
agreement between him and the Defendants, either because they
contracted
with each other or because he stepped into the shoes of
the person who initially entered into a lease agreement with them.
The
Defendants denied having entered into an agreement with the
Plaintiff or that the Plaintiff succeeded Mr Molepo and they do not
admit to the facts alleged in the claim. Their plea is not one of
confession and avoidance merely because they alleged that Mr
Molepo
was the owner of the site. The Defendants did not agree that there
was a shift in the onus either. It was stated that the
Defendant's
witness would testify first due to practical considerations to
release Mr Rapaledi to attend to funeral arrangements.
[30]
In the result I propose the following
order: That the appeal is dismissed with costs.
A
LAMMINGA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
I agree, and it is so ordered
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Date
heard:
16 August 2019
Date
delivered: 15
November 2019
APPEARANCES:
For
the Appellant
:
C Nel of Corrie Nel and Kie, Polokwane
For
the Respondents
: R P Tloubatla on instruction
of Richard Mahopo
Attorneys, Polokwane
[1]
In
the Heads of argument in the appeal the legal representative for the
Appellant/Plaintiff states specifically that it was common
cause
that the Defendants rent from the “owner” of the Coal
Yard and that they entered into a rental agreement with
Mr Molepo.
This is not exactly what was placed on record at the start of the
trial- See p4 Vol 1 of the transcribed record.
[2]
Genna-Woe Prop (Pty) Ltd v Medio-Tronics (Natal) (Pty ) Ltd
at
p936 C-D