About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 37
|
|
Magano and Another v Dipheko (1532/2018) [2019] ZANCHC 37 (30 August 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
1532/2018
Datum
verhoor: / Date heard:
16/08/2019
Datum
gelewer: / Date delivered:
30/08/2019
In
the matter between:
SETLHODI
MOSES MAGANO
First Applicant
GLORIA
MASEGO
MAGANO
Second Applicant
and
THEMBA
HOPE
DIPHEKO
Respondent
Coram:
Sieberhagen, AJ
JUDGMENT
SIEBERHAGEN,
AJ
Introduction
[1]
The Applicants lodged an urgent
application seeking the following relief:
"1.
That the Respondent shall within fourteen days of the date of the
order of this Honourable Court
take all necessary steps and sign all
necessary documents in order to pass transfer of the following
immovable property to the
First and Second Applicants:
ERF 18105, GALESHEWE.
SITUATED IN THE SOL PLAATJE
MUNICIPALITY,
DISTRICT
OF KIMBERLEY, NORTHERN CAPE PROVINCE
IN
EXTENT 251 SQUARE METERS
HELD BY DEED OF TRANFER NUMBER
Tl 890/1999
2.
Should
the Respondent fail to adhere to the provisions of paragraph 1 above,
the Registrar of this Court be authorised to take the
necessary steps
and to sign all the necessary documents on the Respondent's behalf in
order to pass transfer of the immovable property
to the First and
Second Applicants;
3.
That
the Respondent be ordered to pay the costs of this application."
[2]
The
Second Applicant is the wife of the First Applicant and they are
married in community of property. The Respondent opposes the
application.
Factual
Background
[3]
It
is the Applicants' case that the Respondent and they concluded a
written Deed of Sale on the 5th of January 2015 in respect of
the
immovable property known as Erf 18105, Galeshewe, Kimberley
(hereinafter referred to as the
"immovable
property';.
A copy of the Deed of
Sale is attached to the Applicants' founding papers.
[4] In
terms of the provisions of the Deed of Sale, the parties agreed that:
4.1
The
purchase price of the immovable property is R40,000.00;
4.2
the
purchase price is payable in cash on the date of registration of the
property into the name of the Applicants;
4.3
the
Applicants would pay all costs of and incidentals to the registration
of transfer of the immovable property, including transfer
duty and
the costs of obtaining any permit or consent from any statutory
authority required for the purposes of such registration;
4.4
the
Applicants would be liable for the payment of all rates, taxes and
other charges levied in respect of the immovable property;
4.5
the
Applicants would be entitled to receive transfer of the immovable
property once they had delivered guarantees for payment of
the
purchase price and had paid the transfer costs in respect of the
immovable property.
[5]
According
to the Applicants they duly complied with their obligations in terms
of the Deed of Sale by effecting payment of the purchase
price as
well as the deposit for the transfer costs in respect of the
registration of the immovable property to the conveyancers,
Duncan &
Rothman Attorneys on 9 and 12 January 2015 respectively.
[6]
Despite
having complied with their obligations, the Respondent to date has
refused and/or failed to cause transfer of the immovable
property in
terms of the Deed of Sale. On 17 January 2017, Duncan & Rothman
Attorneys addressed a letter to the Respondent
which reads as
follows:
"We refer to the
abovementioned matter and confirm that we have received instructions
from the Purchaser to proceed with the
registration of the transfer
in terms of the Deed of Sale as signed by you dated 5 January 2015.
We hereby give you notice of
our intention to re-lodge the deeds at the Kimberley Deeds Office
within the next seven (7) calendar
days. Should your instructions
still be that the matter may not proceed we urge you to obtain
independent legal counsel and to
bring the required court application
to stop us from proceeding.
KINDLY
NOTE THAT THIS IS A FINAL NOTICE."
[7]
The
Applicants have tendered payment of any further costs that may be
payable to the conveyancers in order to have the immovable
property
transferred into their names and submit that they are entitled to an
order for specific performance in terms of the provisions
of the Deed
of Sale. The Applicants indicated in their papers that their attorney
will ensure that notice of all proceedings during
the course of this
application is provided to the Registrar of Deeds, Kimberley, in
terms of section 97 of the Deeds Registries
Act, Act 47 of 1937.
[8]
In
response to the Applicants' founding papers, the Respondent in his
opposing papers stated that he was previously incarcerated
at the
same prison at which the First Applicant was stationed as prison
warden and that they had become friends. In January 2015,
after the
Respondent was released, he fell ill and his eardrum had to be
removed. At that stage he was awaiting trial and needed
money for
doctors and legal fees.
[9]
He
then approached the First Applicant enquiring whether the First
Applicant would lend him Rl0,000.00 towards his medical costs
and
legal fees. The First Applicant agreed to such a loan amount on
condition that they approach the First Applicant's attorneys,
Duncan
& Rothman Attorneys, to sign an Acknowledgment of Debt. According
to the Respondent, an agreement was reached with regard
to the terms
upon which he would repay the First Applicant prior to him attending
the
offices
of
Duncan & Rothman Attorneys.
[10]
On
his attendance at the
offices
of
the Applicants' attorneys, a lady brought a stack of papers for him
to sign and she merely indicated that he was to initial at
the bottom
of each page and sign the last page of the document in full. As a
result of the aforementioned agreement and the terms
of the loan, he
did not read through the documentation.
[11]
It
is the Respondent's case that it was his understanding and belief
that the document he was signing, was an acknowledgement of
debt. He
was desperate for the money and had no reason to distrust the First
Applicant. Subsequent to this the First Applicant
then withdrew
RS,000.00 cash and gave it to the Respondent. A week thereafter the
Respondent received another RS,000.00 from the
First Applicant as
agreed.
[12]
He
only became aware of the fact that he had indeed signed a Deed of
Sale in respect of his immovable property and not an acknowledgment
of debt, when he received the Applicants' application. He informed
Duncan & Rothman Attorneys that he had signed the Deed of
Sale
due to a misrepresentation. He would never have sold his immovable
property for an amount of R40,000.00, because he has five
children
and the immovable property must be available for them to live in,
because he cannot afford to maintain them if he is in
prison.
[13]
The
Respondent avers that he was never provided with any transfer
document to sign in respect of the immovable property and had
he been
provided with same before the Applicants' had brought this
application, he would have taken the necessary steps to cancel
the
agreement. He denies that he received the letter from Duncan &
Rothman Attorneys referred to in paragraph 6
supra.
[14]
In
reply the First Applicant denies being friends with the Respondent.
According to him, the Respondent had informed him that he
wanted to
sell his immovable property, but that he owed an amount of
approximately R26,000.00 to the Sol Plaatje Municipality for
outstanding property services and rates. The Respondent requested him
to settle the amount owed to the Sol Plaatje Municipality,
whereafter
the remainder of the purchase price would be paid to the Respondent.
[15]
The
Applicants and the Respondent went to the offices of Duncan &
Rothman where the contents of the Deed of Sale were explained
thoroughly to them by a representative of the firm. According to the
First Applicant there could have been no misunderstanding
regarding
the contents of the Deed of Sale and the conditions thereof. The
Applicants attach a statement of Duncan & Rothman
Attorneys,
dated 3 March 2017, indicating that the Applicants had paid a total
amount of RS0,049.83 to Duncan & Rothman Attorneys
during January
2015. An amount of R26,101.08 was paid to the Sol Plaatje
Municipality and R 19,833.00 to the Respondent during
January and
February 2015 as well as an amount of R651.37 for a copy of the deed
and sheriff's fees leaving a balance of R33 464.38
due to the
Applicants.
Arguments
on behalf of the parties
[16]
Adv
Labuschagne, on behalf of the Applicants, submitted that the
Applicants had complied with all the requirements as set out in
the
Deed of Sale in respect of the immovable property and are therefore
entitled to the transfer of the immovable property.
[17]
She
submitted that the Respondent had not raised any issues to indicate
that the Deed of Sale is void or unenforceable or that the
relief
claimed cannot be granted and therefore the Applicants are entitled
to the relief as set out in the Notice of Motion.
[18]
With
regard to the Applicants' compliance in terms of the provisions of
section 97 of the Deeds Registries Act, Act 47 of 1937 as
set out in
paragraph 7
supra,
she
submitted that the Applicants had obtained a report from the
Registrar of Deeds, Kimberley, but that the report could not be
filed
timeously and therefore did not form part of the papers placed before
Court.
[19]
Adv Jankowitz, on behalf of the
Respondent, argued that the Respondent should have been placed in
mora
before
specific performance may be claimed
[1]
.
According to him, the letter dated 14 February 2017 from Duncan &
Rothman Attorneys does not indicate what the breach is that
needs to
be cured nor does it indicate before which date the said breach must
be cured and therefore the Applicants' application
was brought
prematurely and should be dismissed on this basis alone.
[20]
He also submitted that the Applicants
had failed to indicate that they had provided the necessary bank
Guarantees as stipulated
in the agreement and there exists only a
vague statement that the applicants had complied with their
obligations.
[21]
According to Mr. Jankowitz, the
misrepresentation as set out in the Respondent's opposing papers
complied with the essential allegations
for an innocent
misrepresentation and therefore no valid contract came into effect
between the parties. In addition, thereto, he
submitted that the
Applicants' application cannot properly be decided on the papers, as
a result of a factual dispute which should
have been foreseen by the
Applicants and that the Court cannot decide this matter without
external evidence. He requested the Court
to dismiss the Applicants'
application with cost.
Applicable
Law and application of Law to the facts
[21]
It
is quite clear that the version of the events as portrayed by the
Applicants are quite at odds with the version of the Respondent.
The
Applicants will only be entitled to the relief sought where the
factual disputes as stated by the Respondent together with
the
admitted facts in the Applicants' affidavits justify such an
order.
[2]
[22]
Although
Mr. Jankowitz argued that the Respondent had complied with the
essential allegations for avoiding a contract on the ground
of an
innocent misrepresentation and that no valid contract came into
existence, I do not agree with this submission. The Applicants
deny
the existence of an innocent misrepresentation as alleged by the
Respondent. The
Plascon-Evans
rule
is not affected by the fact that the onus relating to the disputed
fact is on the Respondent.
[3]
In the case of a counter-application, even if related to the main
application, the converse applies and it is the Applicants' version
together with the Respondent's allegations that are admitted or not
denied which must be considered.
[4]
[23]
I am of the view that the disputes
between the parties in relation to the signing of the Deed of Sale
and the Respondent's alleged
innocent misrepresentation cannot be
resolved on the papers as set out in Rule 6(5)(g) which reads as
follows:
“
Where an application
cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems
fit with a view to
ensuring a Just and expeditious decision. In particular, but without
affecting the generality of the afore-going,
it may direct that oral
evidence be heard on specified issues with a view to resolving any
dispute of fact and to that end may
order any deponent to appear
personally or grant leave for such deponent or any other person to be
subpoenaed to appear and be
examined and cross-examined as a witness
or it may refer the matter to trial with appropriate directions as to
pleadings or definition
of issues, or otherwise.”
[24]
An
application cannot properly be decided on affidavit if there is a
potential witness whose affidavit cannot be obtained or, more
commonly, there are factual disputes which need to be resolved but
which cannot or should not in the absence of oral evidence.
Unless
the application is dismissed, the Court should adopt the procedure
that is best calculated to ensure that justice is done
with the least
delay.
[5]
[25]
In
this matter both counsel agreed that the evidence of the conveyancer
and "lady" who had brought the stack of papers
to the
Respondent as set out in his opposing affidavit, would have assisted
the Court in adjudicating the disputes between the
parties. It is
also unclear from the papers, why almost two years have lapsed
without any progress after the Applicants had made
payment to Duncan
& Rothman Attorneys during January 2015.
[26]
It
is accordingly undesirable to endeavor to decide the application upon
the affidavits filed by the parties where there are a material
dispute of facts as set out in the matter of
Manuel
v Sahara Computers {Pty) Ltd and another
[6]
:
“
[88]
In terms of rule 6(5)(g) of the Uniform Rules of Court:
“
Where
an application cannot properly be decided on affidavit the court may
....
direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact.
.
.
"[Emphasis
added]
[89]
This sub-rule does not only apply where there is a true dispute of
fact on the papers. It also
applies in circumstances where one party
casts doubt on the relevant allegations of another. Although not
contradicted by direct
evidence, those averments are thus in dispute,
and “cannot properly be decided on affidavit" in terms of
the sub-rule."
[27]
I
am therefore of the view that it would be preferable that oral
evidence be led in this matter to enable the Court to see and hear
the witnesses before coming to a conclusion.
[28]
The remaining question is whether the
dispute of material facts should have been foreseen by the
Applicants. Had such a dispute
been foreseen, the Court may dismiss
the application.
[7]
[29]
The
letter from Duncan & Rothman Attorneys, dated 14 February 2017
adressed to the Respondent, does make mention of the fact
that the
Respondent gave instructions that the matter may not proceed, but
there is no indication in the papers as to the reason
for his
instructions and I am therefore of the view that the Applicants could
not have foreseen that the Respondent would rely
on an innocent
misrepresentation in respect of the Deed of Sale.
[30]
As
a result of the order I intend to make, I do not deem it necessary do
deal with the issues raised by Mr. Jankowitz in paragraphs
19 and 20
supra
in
this judgment, as the Court hearing oral evidence on behalf of both
parties would be in a much better position to adjudicate
upon these
aspects.
[31]
The
factual disputes between the parties are not only in relation to the
Applicants' averments in respect of the Deed of Sale, but
also in
respect of the Respondent's reliance on an innocent
misrepresentation. As a result thereof, I do not deem it necessary
to
award costs against any of the parties at this stage. The costs of
the application should be reserved for the Court hearing
the oral
evidence.
I
make the following order:
1.
THE
MATTER IS REFERRED FOR ORAL EVIDENCE IN TERMS OF THE PROVISIONS OF
RULE 6(5)(g).
2.
EITHER PARTY SHALL BE ENTITLED TO
CALL ANY OTHER WITNESS TO GIVE EVIDENCE, PROVIDED THAT, IF SUCH
WITNESS HAS NOT DEPOSED TO AN
AFFIDAVIT IN THIS MATTER, A SUMMARY OF
SUCH WITNESS'S EVIDENCE IS FURNISHED TO THE OTHER PARTY 10 DAYS PRIOR
TO THE HEARING.
3.
COSTS
OF THE APPLICATION IS RESERVED FOR THE COURT HEARING THE ORAL
EVIDENCE.
AS
SIEBERHAGEN
ACTING
JUDGE
Obo
the Applicants:
Adv J.M. Labuschane (oio
Engelsman Nagabane Inc)
Obo
the Respondent:
Adv D.C Jankowitz (oio
Haarhoffs Inc)
[1]
Musgrove & Watson (RHOD) (PVT)LTD v ROTIA [1978] 3 All SA 203 ®
[2]
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
[1984] 2
All SA 366
(A) at page 367
[3]
United Technical Equipment Co (Pty) Ltd v Johannesburg City Council
1987 (4) SA 343
(T) at 348
[4]
The South African Post Office Ltd v van Rensburg [1997)
4 All SA 523
(E) at 533
[5]
Johannesburg City Council v The Administrator Transvaal ( 1) 1970
(2) SA 89 (T)
[6]
[2019] 2 All SA 417
(GP) - at para [88] and [89]
[7]
Harilal v Rajman and Others
[2017] 2 All SA 188
(KZD)