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[2018] ZAGPJHC 565
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R J v M J (2015/11549) [2018] ZAGPJHC 565 (17 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/11549
In
the matter between:
J, R
Plaintiff/Applicant
and
J,
M
Defendant/
Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
In March 2015 the plaintiff instituted divorce proceedings against
his wife to whom he is married out of community of property
with the
application of the accrual system under Chapter 1 of the
Matrimonial
Property Act 88 of 1984
.
2.
He alleged that during the subsistence of the marriage the
defendant’s estate had accrued while his showed no accrual.
It
was therefore contended in the summons that the plaintiff was
entitled to one half of the difference between the accrual of
his and
the defendant’s respective estates.
3.
In January 2018 the plaintiff delivered a notice of intention to
amend his claim by introducing an oral agreement between the
parties
concluded in September 2009 in terms of which his wife had been
appointed as his nominee to purchase the farm De Oude Mouragie;
although the property would be registered in the defendant’s
name the plaintiff would remain the sole beneficial owner. The
property was registered in the defendant’s name.
It
was also alleged that in terms of the agreement the plaintiff would
pay the purchase price of R605 000 and would effect
all
improvements, conduct the farming operations and maintain the
property. It was further alleged that he had done so.
4.
In terms of the notice of amendment the plaintiff then sought to
introduce a new claim to the summons declaring that he is the
lawful
owner of the farm in question despite it being registered in the
defendant’s name.
5.
The defendant objected to the amendment. The application before me is
to allow the amendment.
6.
The defendant’s substantive objections to the proposed
amendment are that;
a.
It is bad in law because the
amendment sets up an oral agreement which is impermissible by reason
of the provisions of s 2 of the
Alienation of Land Act 68 of 1981
[1]
(
which, it is contended, requires such an agreement concerning
immovable property to be reduced to writing;
b. It is bad in law because it is at
variance with the terms of the antenuptial contract and offends
against the
Matrimonial Property Act 88 of 1984
;
c. It does not accord with his stated
position in other documents including an affidavit deposed to by him
in these same proceedings.
7.
I proceed to deal with each
NOMINEE
AGREEMENTS IN RESPECT OF OWNERSHIP OF IMMOVABLE PROPERTY
8.
Leaving aside the terms
reception into our legal lexicon from English law
[2]
nominee shareholdings and ownership became a popular device in South
Africa in an attempt to circumvent the racial legislation
under
apartheid which precluded Blacks, Indians and Coloureds from owning
land in the so called white areas. Its use as a means
of not having
to identify the true beneficial owner is still prevalent and reaches
into securities held in public listed companies,
although certain
levels of disclosure are now required albeit that the ultimate
beneficial owner may never be revealed.
9.
Courts soon recognised nominee holdings and by reason of the
classification of the relationship established, our law considered
that it did not have to be in writing even though the true beneficial
owner’s entitlement to claim
vis a vis
the actual
registered owner was reduced to writing. See
Dadabhay
v Dadabhay and another
1981 (3) SA 1039 (A)
at 1050A where this very issue was pertinently dealt, also on
exception as the cited extract
from the judgment of Holmes AJA (at
the time) reveals:
“
To sum up, in the present
matter, on the case pleaded in the appellant's A particulars of
claim, there was an oral agreement that
the respondent would buy an
erf from the Board; that he would do so as "nominee"
(which, as I have said, may well have
been intended to mean
"trustee") for the appellant; that there is no mention of
monetary consideration for this service;
and that, when called
upon, he would sign all documents necessary to enable the erf to be
registered in her name.
Having regard to the authorities
cited above, in my view the oral agreement is not hit by
s 1
(1) of
Act 68 of 1957; it is not a contract of sale or a cession in the
nature of a sale.
Finally, if the respondent
purchased the erf in pursuance of the trust, the appellant is now
entitled to demand of him that he complete
the trust by signing the
papers necessary to ensure registration in her name.
I emphasize that this judgment is
in the nature of a decision on exception to a summons. For that
purpose the averments in
the summons are assumed to be true. When the
case goes to trial, the plea and the effect of the evidence will have
to be considered.”
In
Hadebe v Hadebe and another
[2000] 3 All SA 518
(LCC) at para
17 Gildenhuys J in applying
Dadabhay
said:
“
The legal relationship
between the plaintiff and the first defendant which emanated from the
facts set out above, is that of an
informal trust whereunder the
first defendant (as “nominee”, which could also mean
trustee) would hold the property
for the plaintiff.”
10.
Accordingly the first ground of objection fails.
THE
ALLEGED NOMINEE AGREEMENT IS AT VARIANCE WITH THE ANTENUPTIAL
CONTRACT AND LEGISLATION
11.
If there was indeed a nominee relationship then it is difficult to
see how it could offend the terms of the antenuptial
agreement
or the provisions of the
Matrimonial Property Act. The
existence of a
nominee agreement does no more than identify who in fact is and
has always been the true beneficial owner.
It does not subvert; it
merely reveals what was always the true situation.
THE
PRPOSED AMENDMENT CONTRADICTS THE PLAINTIFF’S OWN STATEMENTS
12.
This argument fails to draw the line between a legal objection to a
pleading, or to one that the pleading would be vague and
embarrassing, and the production of evidence to knock a claim or
defence out at trial stage.
13.
The fact that a party may have made a statement against interest
which would, if proven, result in the claim being dismissed
does not
mean that such evidence can be introduced to challenge the pleading
of a contrary state of affairs. The one has
to do with
pleadings- the other has to do with contradicting evidence reserved
for the trial.
By
way of a simple illustration; a party cannot challenge an amendment
to a claim because it is able to find some document which
would put
an end to the litigation. That will have to be pleaded. Hopefully
such situations will become rarer once case management
in its more
resolution orientated form takes root to ensure that parties deal
with the genuine disputes between them.
14.
The only time when a statement of a party which contradicts his
pleading can be raised by way of objection is if he has including
that statement in his pleading. And then the objection can be no more
than that the pleading is vague and embarrassing; e.g. the
alleging
of terms in the body of the claim which are contradicted by the
contents of an agreement attached to the very particulars
of claim.
15.
The objection on this ground must therefore fail.
COSTS
16.
The plaintiff has been successful and seeks a costs order against the
defendant.
Costs
are a matter within the exercise of the courts judicial discretion.
17.
At the outset I have sympathy for the defendant’s position.
18.
The evidence she presented demonstrates that the plaintiff by his own
admission under oath in the same proceedings stated that
the farm is
jointly owned by them. There are also other statement he made,
or that were made on his behalf which are at odds
with his claim to
be the sole beneficial owner of the farm; rather that he and the
defendant are co-owners.
19.
These constitute clear admissions against interest which would be
admissible against him.
I
cannot discount the possibility that the plaintiff is forcing the
defendant into court by adopting an extreme position when his
own
ipse dixit
is far different. It suggests that he may be using
this as a stratagem to obtain a more favourable settlement than he
would otherwise
have been entitled if he had pleaded in a manner
consistent with his express statements under oath. Of course the
plaintiff will
have an opportunity to explain the prior inconsistent
statements at trial. There remains however the risk that the
plaintiff is
attempting to outlitigate the defendant in an attempt to
force a favourable, but possibly unfair, overall settlement.
20.
Since the matter may be settled it would be inappropriate to order
that costs are determined by whether or not the plaintiff
proves full
ownership in the farm as opposed to co-ownership. In these
circumstances it appears that an appropriate order
is that costs be
in the cause.
ORDER
21.
The application to amend is granted and costs are to be in the cause.
_________________
SPILG,
J
DATE
OF HEARING: 15 October 2018
DATE
OF JUDGMENT: 17 October 2018
FOR
PLAINTIFF/APPLIACNT: Adv. JW Kloek
CMM
Attorneys Inc
FOR
DEFENDANT/RESPONDENT: Adv. Steyn
SJ
Naude Attorneys
[1]
Section
2
Formalities in Respect of Alienation of Land
(1) No alienation of land after
the commencement of this section shall, subject to the provisions of
section 28
, be of any force or effect unless it is contained in a
deed of alienation signed by the parties thereto or by their agents
acting
on their written authority.
(2) The provisions of subsection
(1) relating to signature by the agent of a party acting on the
written authority of the party,
shall not derogate from the
provisions of any law relating to the making of a contract in
writing by a person professing to act
as agent or trustee for a
company not yet formed, incorporated or registered.
See
previously
s 1(1) of the General Law Amendment Act 68 of 1957
which provided that
:
No contract of
sale or cession in respect of land . . . shall be of any force or
effect . . . unless it is reduced to writing
and signed by the
parties thereto or by their agents acting on their written
authority.
[2]
Dadabhay
v Dadabhay and another
1981 (3) SA 1039 (A)
at 1047D