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[2018] ZAFSHC 155
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Mochochoko v Mochochoko and Others (3647/2015) [2018] ZAFSHC 155 (18 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3647/2015
In
the matter between:
GLADYS
MORONGWENYANA MOCHOCHOKO
Applicant
and
CECILY
THELE MOCHOCHOKO
1
st
Respondent
SELBY
MOCHOCHOKO
2
nd
Respondent
DINAH
MOCHOCHOKO
3
rd
Respondent
GLADYS
MOCHOCHOKO
4
th
Respondent
LESEDI
MOREI MALAHLELA
5
th
Respondent
TUMELO
OFENTSE MOCHOCHOKO
6
th
Respondent
DUMA
MHLONGO
7
th
Respondent
CHARLOTTE
NALEDI MOCHOCHOKO
8
th
Respondent
MITCHEL
MOCHOCHOKO
9
th
Respondent
JOYCE
MOCHOCHOKO
10
th
Respondent
THE
MASTER OF THE HIGH COURT
11
th
Respondent
FREE
STATE DIVISION
THE
DEPARTMENT OF RURAL DEVELOPMENT
12
th
Respondent
AND
LAND REFORM
HEARD
ON:
11
OCTOBER 2018
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
18
OCTOBER 2018
I
INTRODUCTION
[1]
A family feud involving a residential dwelling situated in
Bochabella, Bloemfontein has culminated in an opposed application
to
be adjudicated by the court.
[2]
An interesting, but important legal issue, such as the effect of two
spouses’ joint will on the testamentary power of
the surviving
spouse to deal in a later will with property inherited by such spouse
contrary to the joint will, has not been considered
at all by any of
the parties to this application, neither in the affidavits, nor in
written heads of argument.
II
THE
PARTIES
[3]
Applicant is Me Gladys Morongwenyana Mochochoko, a […] year
old pensioner residing at […] M Street, Bochabella
(not
Botshabela as incorrectly set out in the founding affidavit),
Bloemfontein. She Is represented by Stander and Green
Attorneys
who appointed Adv AP Berry to argue the application.
[4]
Twelve respondents have been cited. The first ten are members
of the Mochochoko family who applicant believes may have
a legal
interest in the application. It is not necessary to name all
these respondents as the application is opposed by first
respondent
only, she being Me Cecily Thele Mochochoko, a female educator
residing at 4342 Mtyombile Street, Bochabella, Bloemfontein.
She is
applicant’s sister-in law. 1
st
Respondent is the registered owner of Erf […] Mangaung
Extention 6, district Bloemfontein, also known as […] M
Street,
Bochabella, Bloemfontein (hereinafter to be referred to as
“the property”). Second and third respondents are
the children of first respondent and her late husband, Mr Zwelethu
Jeremiah Mochochoko (applicant’s brother). The fourth
respondent is the widow of applicant’s other brother, Frazer
Lehlohonolo, who passed away earlier. Fifth and sixth
respondents are the children of this late brother. Seventh to tenth
respondents are the children of applicant’s other sibling,
Alan
Sechaba, who passed away as well.
[5]
The Master of the High Court is cited as 11
th
respondent. A report was received from the Master, dealing
briefly with authorities relating to the acceptance and setting
aside
of wills. He does not oppose the application and abides by the
court’s decision. The Department of Rural
Development and
Land Reform is the 12
th
respondent. It does not oppose the application and also failed
to shed any light on the process followed culminating in registration
of transfer of the property in 1
st
respondent’s name.
[6]
I shall refer to the parties, the main protagonists, as applicant and
respondent throughout this judgment and if I need to refer
to any
other party I shall properly identify such party.
III
THE
RELIEF CLAIMED
[7]
The following relief is claimed in the notice of motion which is
quoted
verbatim
:
1.1
Declaring the joint Will of
HARRY
SELBY LEKHOANA
MOCHOCHOKO
and
DINTSEJANG
DINAH MOCHOCHOKO
executed on
17
January 1978
,
not to be the last Will and Testament of the Testatrix.
1.2 Authorising
the Master of the High Court of South Africa, Free State
Division,
to accept a copy of the Will of
DINTSEJANG
DINAH
MOCHOCHOKO
executed
on
05
January 1994
,
as the last Will and Testament of the Testatrix in terms of Sec 8(4)
and /or 8(4)(B) of the
Administration of Estates Act 66 of 1965
.
1.3
Authorising the Master of the High Court of South Africa, Free State
Division, to appoint the firm of attorneys, Stander &
Partners,
as executor of the Estate of the Testatrix.
1.4
Interdicting the First Respondent from dealing with the property
situated at
[…]
M Street, Botshabela, Free State
Province
,
or incurring any liability against the property.
1.5
Directing the First Respondent to sign all the documentation which
may be needed to execute the Will of the Testatrix, within
14 days
from the date she is requested to do so.
1.6
Authorising the Registrar of the High Court of South Africa, Free
State Division, to sign all documentation which may be required
needed (sic) to execute the Will of the Testatrix, should the First
Respondent fail to sign within 14 days from the date she is
requested
to do so.
1.7 Ordering any
party who opposes this Application to pay the costs of this
Application jointly and severally, the one paying the
other to be
absolved.
IV
THE
DISPUTES
[8]
Respondent denies that applicant is entitled to any relief. She
pointed out that various disputes of fact exist which
are incapable
of resolution on the papers. However, in her answering
affidavit she focused on two crucial issues: (1) the
Master has
accepted the joint will of applicant’s parents executed way
back in 1978 in terms whereof applicant’s mother,
now the late
Me Dintsejang Dinah Mochochoko, (hereinlater referred to as “DD
Mochochoko”) became the sole heir as surviving
spouse upon her
late husband’s death and (2) the 1994 document is a copy only
and the validity thereof is questionable in
the absence of the
original; furthermore applicant has done nothing over many years to
approach the court to have it accepted as
a valid will and has
acquiesced in the Master’s decision rejecting a copy of the
will.
V
MATERIAL
FACTUAL BACKGROUND
[9]
There are certain disputes appearing from the papers, but these are
not serious. It is possible to adjudicate the application
based
on the common cause facts.
[10]
The following is a chronological factual background of the material
events:
1)
Mr Harry Selby Lekhoana Mochochoko (referred to herein as “Lekhoana”
without being disrespectful, but to avoid confusion)
and DD
Mochochoko, who were married to each other out of community of
property, have been staying at stand 4390 Mtyombile Street,
Bochabella, Bloemfontein for many years. As long ago as on 17
January 1978 – 40 years ago – they executed a joint
will
to be referred to as “the joint will” herein later.
The above immovable property was bequeathed in this
will, an
indication of how long they were in occupation thereof.
2)
In terms of the joint will the survivor of them was appointed as the
sole heir of the whole estate of the first-dying and they
further
directed that upon the death of the survivor of them
“
all
his or her assets in his or her estate and nothing excepted, will
devolve and accrue to two of our children born of our marriage
as
follows:- ….”
Jeremia
Zwelethu Mochochoko (“Zwelethu”), their one son would
receive the property, three quarters of all investments,
one vehicle
and one half of the furniture. Applicant would receive one
quarter of the investments, one vehicle (if there
is more than one)
and one half of the furniture.
3)
Lekhoana passed away in 1985. Respondent avers that the Master
accepted the joint will, but there is no proof hereof.
Unfortunately there is no indication whether, and if so, when the
estate of Lekhoana was reported. There is no Master’s
reference number on record and there is no proof that the joint will
was presented to the Master for acceptance and in fact accepted,
save
for respondent’s say-so. However, it is not applicant’s
case that the joint will is not a valid will.
4)
DD Mochochko passed away on 29 January 2010, but prior to her death
she allegedly executed two documents, in 1990 and 1994 respectively.
These are clearly intended to be wills. Mr Mosikili who
practised as attorney, deposed to an affidavit, confirming that he
had prepared the last will which was executed and signed in his
presence on 5 January 1994. This version is contested by
respondent without a proper factual foundation.
5)
On 2 March 2010 applicant’s brother signed an undertaking and
acceptance of Master’s directions in terms of
s 18(3)
of the
Administration of Estates Act, 66 of 1965
. This was in respect
of the late DD Mochochoko’s estate. There was apparently
no need for the appointment of
an executor due to the size of the
estate. Again, the Master’s reference number is not
available and it is uncertain
whether Zwelethu was indeed appointed
by the Master. Applicant stated under oath that her attorney
received the aforesaid
undertaking, annexure “GM4”, to
which the joint will was attached, from the Master’s office.
There is no
confirmatory affidavit from the attorney explaining what
the Master’s reference number is and whether Zwelethu was
indeed
appointed as Master’s representative. I must
accept that it was apparently not the case.
6)
According to the applicant’s version she could only locate a
copy of her mother’s will upon her death and that the
Master
refused to accept it, which decision she accepted at the time.
The Master denies in his report of 20 January 2016
that copies of
either the 1990 or 1994 wills were submitted to his office which on
all probabilities confirm that DD Mochochoko’s
estate was never
registered by the Master’s office.
7)
Zwelethu passed away in 2011. There is no indication whether
his estate was reported with the Master and if so, whether
he left a
will and what transpired during the administration of the estate.
8)
On 26 June 2012, two and a half years after her mother passed away,
applicant requested the Law Society to assist in finding
DD
Mochochoko’s file (not the will), but the Law Society failed to
locate the file as is evident from the letter annexed
as annexure
“GM2”.
9)
On 19 August 2013 and in terms of Deed of Transfer TE 9006/2013 the
property was registered in respondent’s name, she having
been
granted ownership in terms of the provisions of
s 4(1)(b)
of the
Conversion of Certain Rights into Leasehold or Ownership Act, 81 of
1988 (“the Conversion Act”).
10)
When applicant received municipal accounts in respect of the property
addressed to respondent, she made enquiries whereupon
her attorney
obtained a copy of the particular Deed of Transfer. According
to the respondent she became aware of arrear municipal
accounts in
her name in respect of the property during April 2015 whereupon she
confronted applicant who denied liability as the
property was not
registered in her name, but in respondent’s name. The
parties are thus in dispute in respect of this
issue.
11)
There is no indication what caused the property to be registered in
respondent’s name and as applicant speculates,
it probably
occurred due to Zwelethu’s entitlement to the property in terms
of the joint will and respondent’s right
to inherit from her
husband upon his death. There is no allegation that any fraud
or misrepresentation was committed by respondent
or anyone on her
behalf.
12)
Applicant issued the present application in March 2015, but due to
difficulties with service of the papers on all respondents
and other
delays, the application was heard on 11 October 2018 only.
13)
Applicant has been staying on the property with her parents ever
since her childhood and she is still occupying the property
at
present. Respondent is the owner of a separate property across
the street from the property in dispute and she has been
occupying
that property since 1991.
VI
LEGISLATION
AND AUTHORITIES PERTAINING TO WILLS AND ESTATES
[11]
It is important to consider
s 2
of the
Wills Act, 7 of 1953
and
s 8
of the
Administration of Estates Act, 66 of 1965
and some other
principles in respect of succession before an evaluation of the
dispute is undertaken.
[12]
Section 2(1)
of the
Wills Act prescribes
the formalities applicable
to wills. There is no need to quote the subsection. Each
page of a testator’s will
must be signed by the testator and
two witnesses who must be in each other’s presence at the
time.
[13]
Sections 2(3)
and
2A
were added to and inserted in the
Wills Act
during
1992 and since then several orders have been granted by our
courts authorising the Master to accept documents not complying with
the statutory requirements, and even copies thereof, as wills in
accordance with
s 2(3)
and
s 2A.
For ease of reference I quote
s 2(3)
and
S 2A:
“
(3)
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (
Act
66 of 1965
),
as a will, although it does not comply with all the formalities for
the execution or amendment of wills referred to in subsection
(1).
2A
Power of court to declare a will to be revoked
If a court is
satisfied that a testator has-
(a)
made a written indication on his will or before his death caused such
indication to be made;
(b)
performed any other act with regard to his will or before his death
caused such act to be performed which is apparent from the
face of
the will; or
(c)
drafted another
document or before his death caused such document to be drafted,
by
which he intended to revoke his will or a part of his will, the court
shall declare the will or the part concerned, as the case
may be, to
be revoked.
[14]
In
Van
der Merwe v The Master
2010
(6) SA 544
(SCA), Navsa JA, writing for a unanimous court, stated the
following at para [14]:
“
By
enacting s 2(3) of the Act, the legislature was intent on ensuring
that failure to comply with the formalities prescribed by
the Act
should not frustrate or defeat the genuine intention of testators.
It has rightly and repeatedly been said, that,
once a court is
satisfied that the document concerned meets the requirements of the
subsection,
a
court has no discretion
whether or not to grant an order envisaged therein. In other
words,
the
provisions of s 2(3) are peremptory
once the jurisdictional requirements have been satisfied.”
(footnotes
omitted and emphasis added)
.
The
learned judge proceeded as followed in para [15]:
“
Turning
to the provisions of s 2 (3), the first question to be considered is
whether the document in question was drafted or executed
by the
deceased. Following on this is the question whether the
deceased intended it to be his will.”
See
also:
Van
Wetten and another v Bosch and others
2004 (1) SA 348
(SCA) at para [14].
In
para [16] of
Van
der Merwe supra
Navsa
JA said that the
“…
very
object of s 2(3) … is to ameliorate the situation where
formalities have not been complied with, but where the true
intention
of the drafter of a document is self-evident.”
[15]
Section 8
of the
Administration of Estates Act reads
as follows:
8
Transmission or
delivery of wills to Master and registration thereof
(1) Any person
who has any document being or purporting to be a will in his
possession at the time of or at any time after the death
of any
person who executed such document, shall, as soon as the death comes
to his knowledge, transmit or deliver such document
to the Master.
(2) …..
(3)
Any
such document which has been received by the Master, shall be
registered by him in a register of estates, and he shall
cause any
such document which is closed to be opened for the purpose of such
registration.
(4) If it
appears to the Master that any such document, being or purporting to
be a will, is for any reason invalid, he may, notwithstanding
registration thereof in terms of subsection (3), refuse to accept it
for the purposes of this Act until the validity thereof has
been
determined by the Court.
(4A) In taking a
decision concerning the acceptance of a will for the purposes of this
Act, the Master shall take into account the
revocation of a will by a
later will, but not the common law presumptions concerning the
revocation of a will.
(4B)
The
Master may
for the purposes of this Act also
accept
a duplicate original will
.
(emphasis
added)
[16]
In
Ex
parte Erasmus NO: in re Erasmus Estate
1994
(2) SA 751
(CPD) at 755 the court correctly found that a
“
duplicate
original will”
includes
a copy. This is the only reported authority on the subject and
there is no reason to doubt the correctness thereof.
[17]
Meyerowitz
on Administration of Estates and their Taxation
,
2010 ed at para 4.18 holds the view, under the heading “setting
aside of wills”, that
“
the
fact that the survivor adiated under the joint will, which effected a
massing, may render a later will made by him
ineffective
if he has not after the death of the first-dying acquired a separate
estate,
but
it does not invalidate it
.”
(emphasis
added)
[18]
Wille’s
Principles of South African Law,
9
th
ed at 726 sets the law clear and straight as follows:
“
Either
party to a mutual
(joint)
will may, while
both are alive, revoke his or her share of the mutual will with or
without communication to the other party. But
after the death
of one party the survivor may not revoke his or her share of the
mutual will where both the following further conditions
or
circumstances occur: (a) the mutual will effects a “massing”,
and (b) the survivor has accepted some benefit under
the will.”
Wille
continues on the same page to explain “massing”. The
joint will
in
casu
is
a typical example in that the survivor inherited the first-dying’s
estate, subject to a
fideicommissum
in
favour of two of the children and on the basis that the property (the
stand) shall go to Zwelethu. In this scenario the
surviving
spouse became the
fiduciarus
and Zwelethu the
fideicommissarius
.
The survivor obtains a fiduciary interest only.
[19]
Wille continues at 727 – 728 to explain that the survivor
always has an election whether to accept the joint will
by way of
adiation, or to reject it. If the survivor abides by the will
and accepts benefits thereunder, he/she cannot later
on revoke such
joint will in a later will. He/she is under an obligation to
allow the property to devolve in terms of the
joint will.
VII
EVALUATION
OF THE AUTHORITIES AND SUBMISSIONS OF THE PARTIES
[20]
Section 2(3) requires the document in question to be intended by the
testator to be her will.
In
casu
we
have the evidence of the testator’s former attorney who not
only drafted the document on her instructions, but co-signed
as
witness. The document complies with all requirements of the
Wills Act. In
paragraph 2 of the document the testator revoked
all previous wills made by her alone or jointly with any other
person. In
principle DD Mochochoko declared the 1994 document
which must be accepted as a will, her last will and testament.
It is another
issue whether she could in law revoke the joint will
executed by her and her late husband, Lekhoana. That will be
considered
shortly.
[21]
As mentioned, this court has not been informed that any of the
estates, i.e. that of Lekhoana, DD Mochochoko or Zwelethu, have
been
registered by the Master in his register of estates held in terms of
s 8(3).
No Master’s reference number has been provided to
the court in respect of anyone of these three estates. It is
clear from
s 8(4A)
that the Master shall, concerning the acceptance
of a will, take into account the revocation of a will by a later
will. The
Master may also accept a duplicate original will.
[22]
It is repeated that the two page document dated 5 January 1994,
presented to the court as a copy of DD Mochochoko’s will,
complies with all the formalities of a valid will, except that it is
a copy and not the original will. There is no reason
to doubt
Mr Mosikili’s version that DD Mocchochoko executed the will.
A search for the original will was unsuccessful.
Section 2(3)
requires that the document in question must have been intended by the
testator to be his/her will. The provisions of
s 2(3)
are
intended to save a will that would otherwise be invalid due to a
formal defect it its attestation.
In
casu
there
are no formal defects in the attestation of the 1994 will as it
complies with
s 2
of the
Wills Act, the
only issue being the
unavailability of an original will. There is no evidence or
suggestion that DD Mochochoko ever revoked
this will by destroying
the original. In fact, as Mr Mosikili pointed out, the will was
still kept in the safe of his former
employer when he left their
services. It is common cause that the firm of attorneys closed
down offices and it is not surprising
that the original will could
not be located.
[23]
Mr Berry argued that the 1994 document should be accepted as a valid
will, and therefore initially argued that all prayers
contained in
the notice of motion should be granted. Mr Mphuloane did
not really have any argument in this regard,
save to state that
sections 2(3)
and
8
(1) do not refer to copies and that a copy cannot
be used to revoke a valid, accepted and original will. He also
relied on
the time that had expired and indications that applicant
abided in the decision of the Master not to accept the 1994 will as a
valid will. However, and although I accept that there must be
finality, not only in litigation, but also in the administration
of
estates, I am compelled, being subject to the
stare
decisis
principle, to follow the two SCA decisions in
Van
der Merwe
and
Van
Wetten supra to
grant
prayer 2 of the notice of motion by authorising the Master to accept
DD Mochochoko’
s 1994
will as a valid will. The fact that
the 1994 will may be ineffective based on what I stated in this
judgment and as mentioned
by Meyerowitz
supra
,
cannot stand in the way of granting the relief. The Master will
eventually have to deal with the matter and if a further
dispute
arises, the court might be approached again.
[24]
I am not prepared to grant prayer 1 of the notice of motion. I
referred to the authorities in respect of joint wills
and massing of
estates
supra.
There
is insufficient information as to whether DD Mochochoko adiated or
repudiated the joint will prior to the execution of the
1994 will.
Her husband died in 1985. They were married out of community of
property. I accept that the two deceased
spouses merely had
rights of occupation to the property and the improvements thereon as
a consequence of the racially discriminating
laws applicable at the
time. Only their right, title and interest in the improvements
and occupation of the property could
have accrued to heirs. For
purposes of this judgment I deal with such right as property capable
of being bequeathed.
I indicate
infra,
that
by the time of the first-dying spouse’s death a process had
been started by the legislature to provide for ownership
to
previously disadvantaged persons.
[25]
My concern about revocation of the joint will is as follows. If DD
Mochochoko adiated the joint will, massing of their separated
estates
would have taken place and after her death as the surviving spouse,
effect should have been given to the joint will.
A
fideicommissum
was created in respect of the property in favour of Zwelethu.
Based on such proposition, the property would have accrued
to
Zwelethu and after his death to his heirs, testate or intestate.
If the surviving spouse repudiated the joint will, she
would have
received nothing from her deceased husband’s estate, but would
have retained her own assets with the right to
deal with that as she
wished. On the probabilities DD Mochochoko adiated as she
received some benefit insofar as she remained
in occupation of the
property for the next 25 years from Lekhoana’s death in 1985
till 2010. Mr Berry argued in the
same breath that the property
(stand 4390) was not an asset in the estate of any of the parties
when the 1978 joint will was executed,
but that it was an asset in DD
Mochochoko’s estate allowing her to bequeath it in terms of the
1994 will. I do not
agree. There is no proof that both
these parties could be regarded as joint owners of the right, title
and interest to occupation
and improvements of the property, either
as partners, or as if they were married in community of property
which was not the case,
or whether such right belonged exclusively to
one of them.
[26]
If DD Mochochoko adiated, she and her executor would be bound by the
terms of the joint will and she would not be capable to
execute a
later will in conflict with the terms of the joint will. If she
repudiated, she did not inherit anything from her
late husband.
It is not good enough to argue, as her counsel did, that she revoked
the joint will in the 1994 will.
Her earlier adiation, if that
was the case, would have prevented her in law to do so. In the
circumstances the court is left
in the dark as to what happened
in
casu.
There
is no justification, with the facts available, to declare that the
joint will is not
“…
the
last Will and Testament of the Testatrix”
as
contained in prayer 1.
[27]
Applicant seeks an order in terms whereof the court authorises the
Master to appoint the firm of attorneys, Stander and partners,
as
executor in the estate of DD Mochochoko. Firstly,
ex
facie
the documents before the court no such firm exists anymore and
secondly, an executor shall be appointed by the Master after
following
the prescribed procedure set out in
s 14
of the
Administration of Estates Act. This
court cannot interfere with
that statutory procedure.
[28]
Insofar as the court is not prepared to grant orders directing
respondent, alternatively the registrar, to sign documents for
the
transfer of the property – see prayers 1.5 and 1.6 of the
notice of motion – for the reasons advanced
infra
,
I am not prepared to grant an interdict as contained in prayer 1.4.
[29]
It is important to emphasise crucial aspects not dealt with fully or
at all by the parties in the affidavits. Mr Berry
decided to
mention the provisions of the Conversion of Certain Rights into
Leasehold or Ownership Act, 81 of 1988 (“the Conversion
Act”),
but failed to appreciate the consequences of registration of transfer
of the property in respondent’s name in
terms of this Act.
[30]
I mentioned certain relevant conveyancing principles in
M.J. v M.V
Moloao,
case no 4027/2016
,
an unreported judgment of the
Free State High Court, delivered on 30 November 2017 and for ease of
reference I quote the relevant
passages:
“
[18]
There must be a causa for registration of immovable property into the
transferee’s name. It may inter alia
be a sale, a
donation, an exchange, an inheritance or in terms of legislation.
[19]
During the years of apartheid black people could not own immovable
property in the majority of areas in South Africa
which areas were
reserved for people of the so-called white group only. However,
urban black people were under certain conditions
given the right to
occupy land in areas allocated to them. They received so-called
site permits.
[20]
Since 1984 black people could receive leasehold rights in respect of
properties occupied by them in urban areas. Leasehold
rights were
granted to occupants in possession of site permits issued to them.
I refer to the Black Communities Development
Act, 62 of 1984.
This Act was amended by Act 4 of 1986 to provide for full ownership
rights. Applicant has not made
out a case as to which
legislation applies in casu and for that reason I have decided to
mention Acts which might be applicable.
[21]
On 1 January 1989 the Conversion of Certain Rights into Leasehold or
Ownership Act, 81 of 1988 (“the Conversion
Act”) was
promulgated to provide for the conversion of certain rights of
occupation into leasehold or ownership. I do not
intend to discuss
the Act in any detail, but wish to reiterate the following. The
legislature regarded the Black Communities
Development Act as the
principal Act for purposes of interpreting and applying the
Conversion Act. In terms of s 2(1) of
the Conversion Act the
Director-General of a particular province shall conduct inquiries in
respect of affected sites within that
province in order to determine
who shall be granted rights of leasehold, or where sites are situated
in formalised townships for
which township registers have been
opened, ownership with regard to such sites.
[22] In
terms of s 5, and in the event of a declaration having been made by
the Director-General, he/she shall lodge such
declaration and every
deed and other document necessary for registration of the right of
leasehold if s 4(1)(a) is applicable.
If s 4(1)(b) applies, the
Director-General shall lodge his/her declaration and a deed of
transfer with the registrar concerned.
It is interesting to
note that s 17(1) and (2) of the Deeds Registry Act, 47 of 1937 (“the
Deeds Act”) shall not apply
in respect of transfer of ownership
in terms of the Conversion Act. See: s 5(1A)(g). I shall
explain the effect of
s 17 of the Deeds Act infra. It also
appears as if s 14 of the Deeds Act mentioned infra may also not be
applicable if s
2(3) of the Conversion Act is correctly understood.
The provincial administrations must carry out the processes contained
in the Conversion Act. However, it is not necessary to decide
the issue in the light of the evidence and submissions presented
to
the court.
[23]
........
[24]
........
[25]
Registration of immovable property which would upon transfer thereof
form part of a joint estate shall be registered in the
name of the
husband and the wife, unless that transfer takes place only in the
name of a partnership and the husband or wife is
involved herein only
in the capacity of partner in that partnership. See s 17 of the
Deeds Act. Section 14 of the Deeds
Act provides for deeds to
follow the sequence of their relative causes. This means that
transfer of land shall follow the
sequence of the successive
transactions in pursuance of which they are made, save in certain
exceptional cases......... Sections
14 and 17 must be regarded
as the default position, but as mentioned supra, the Conversion Act
apparently provides for exceptions.”
[31]
Although applicant attached to her founding affidavit a copy of Deed
of Transfer no TE 9006/2013 in favour of respondent in
respect of the
property, she did not mention the Conversion Act and/or its aim and
ambit in her founding affidavit, but speculated
how respondent could
have obtained transfer of the property. She did this
notwithstanding the fact that the Deed of Transfer
specifically
stipulates that the transfer followed upon a declaration by the
Director-General granting ownership to respondent
in terms of s
4(1)(b). At the end of her replying affidavit applicant for the
first time referred to the authority of the
Department of Human
Settlement to transfer properties to
“
the
rightful occupants”.
She
then alleged that as respondent was not residing on the property
since 1991, it should never have been registered in her name.
[32]
It is evident that his was not the usual transfer between private
persons or between corporate bodies or the State and a private
person. The transfer was effected in terms of a particular Act,
the Conversion Act, and it followed not upon a sale, exchange,
donation or inheritance (in the usual sense) which would have
triggered for example s 14 of the Deeds Registry Act, 47 of 1937
(“the Deeds Act”), but a declaration by the
Director-General in terms of s 4(1)(b) of the Conversion Act.
This
is clear from the wording of Deed of Transfer TE 9006/2013.
Respondent was
“
declared
… to have been granted ownership in respect of the property”
by the Director-General
of the Free State Province in accordance with s 4(1)(b) of the
Conversion Act.
[33]
I stated the following at para [16] in
Vermeulen
NO v Rammile and others
(A260/2017)
[2018] ZAFSHC 59
(10 May 2018), a full bench decision, where a
similar factual situation occurred:
“
We
are not dealing with transfer of ownership in immovable property in
the general sense of the word.
In
casu
there is no underlying
agreement, but a declaration by a senior official in the Free State
Province – its Director-General
– granting ownership to
1
st
respondent. The Conversion Act cannot be sidestepped in the
process of adjudicating the appellant’s alleged right to
cancellation of the Deed of Transfer. The signing of the Deed
of Transfer was done by Mr Van Niekerk, an employee in the
office of
the particular Departments following a declaration by the
Director-General. A process was followed in accordance
with the
Conversion Act and to name one aspect, the documents were not and did
not have to be prepared by a conveyancer as is the
case with other
documents filed for registration in the Deeds Registry. See
also:
Kuzwayo v Estate
late Masilela
(28/10)
[2010] ZASCA 167
(1 December 2010) at paragraph [28].”
[34]
The
Director-General did not file an affidavit and as applicant elected
not to launch a review application, I do not know what were
the
reasons for the declaration in terms of s 4(1)(b) of the Conversion
Act. See
Kuzwayo
v Estate late Masilela (
28/10)
[2010]
ZASCA 167
(1
December 2010) at para [30], also referred to in
Vermeulen
supra
.
Mr Van Niekerk, who signed the Deed of Transfer on behalf of the
transferor, apparently duly authorised in terms of a Delegation
of
Ministerial Powers as recorded in the first preamble of the Deed of
Transfer, did not attest to an affidavit to enlighten the
court and
the same applies to responsible public servants in the employ of the
Department of Human Settlement and/or the Department
of Rural
Development and Land Reform, the 12
th
respondent.
[35]
Mr Berry’s submission that there is no evidence of compliance
with the Conversion Act and that if the 1994 document was
accepted by
the Master as a valid will, the property would have been transferred
to applicant, does not hold any water for purposes
of adjudicating
the present application for the reason set out in the next paragraph.
[36]
We are in the dark as to what information was considered in deciding
to grant ownership to respondent. Her now
deceased husband
(applicant’s brother) was taking care of their deceased
mother’s estate. Respondent cannot be
accused of improper
conduct in order to obtain transfer. In all probabilities, as
applicant and her counsel also believe,
a decision was taken by the
Director-General based on the 1978 joint will and respondent’s
inheritance of her late husband’s
estate. As pointed out
earlier a
fideicommissum
was created by the testators of the joint will in favour of Zwelethu,
respondent’s husband, in respect of the property.
Zwelethu, as
fideicommissarius
,
was entitled to ownership in terms of the joint will, also bearing in
mind the provisions of the Conversion Act, but his death
made
transfer to his estate unnecessary and consequently a direct transfer
to his heir, the respondent, was in principle authorised
in
accordance with s 2(3)(b) of the Conversion Act. I reiterate
that as a result of s 5(1A)(g) of the Conversion Act, ss
17(1) and
(2) of the Deeds Act do not apply as mentioned in the quotation
supra;
therefore
an initial transfer to the Zwelethu’s estate was not required,
unlike what the case would be in the default position.
It must
be emphasised that this is not a review application and that we were
not provided with reasons for the Director-General’s
declaration.
[37]
Mr Berry did not and could not argue with conviction that the Deed of
Transfer should be cancelled. No case has
been made out for
such relief in the papers and no such relief is sought in the notice
of motion. A court is entitled, if
a proper case has been made
out for relief, to cancel a Deed of Transfer as provided for in s
6(1) of the Deeds Act – see
also
Kuzwayo
supra -
but
s 6(2) provides that upon such cancellation
“
the
deed under which the land …. was held immediately prior to the
registration of the deed which is cancelled, shall be
revived to the
extent of such cancellation, and the registrar shall cancel the
relevant endorsement thereon evidencing the registration
of the
cancelled deed.”
No
transfer or retransfer is ordered by the court in such instance.
The property can also not
be transferred to applicant or a third party or parties as applicant
seeks the court to order in paragraphs
1.5 and 1.6 of the notice of
motion. It is not indicated in the notice of motion to whom the
transfer of property should
be effected, but Mr Berry argued that the
transferees would be applicant and the children of her deceased
siblings. I do
not agree that this would be the end result
insofar as it cannot be accepted that the joint will could be
revoked.
Mr
Berry has eventually conceded during argument that this court cannot
order respondent to sign any transfer documents and thereby
effectively causing an expropriation without compensation, and as
already found, no case has been made out for cancellation of
the Deed
of Transfer in accordance with s 6 of the Deeds Act.
[38]
Mr Berry relied on paras [28] and [29] of
Kuzwayo
for his submission that a review application was not called for.
He is wrong. The SCA emphasised that neither party
to the
dispute was aware of any inquiry that might have been conducted in
terms of s 2 of the Conversion Act and therefore the
court could not
assume that a decision was made. I am convinced that it must be
clear to any reader of the Deed of Transfer
that a decision was made
by the Director-General in terms of s 4(1)(b) of the Conversion Act
and that respondent was granted ownership
in terms thereof.
That decision stands and whether or not it is the result of
“
bureaucratic
bungling”
as
Lewis JA said in
Kuzwayo
supra
is not for this court to consider at this stage. Applicant
would be entitled to seek reasons for the decision and if
dissatisfied,
to approach the High Court for review and setting aside
of the decision and to apply for cancellation of the Deed of Transfer
in
terms of s 6 of the Deeds Act.
XIII
CONCLUSION
[39]
In conclusion, applicant is only entitled to relief in terms of
prayer 2 of the notice of motion. It is recorded that
the 1994
will is in my view ineffective insofar as it is in direct conflict
with the joint will of 1978. No case has been
made out for the
remainder of the relief and the application regarding prayers 1.1,
1.3, 1.4, 1.5, 1.6 and 1.7 shall be dismissed.
Applicant has
achieved some success, but in my view failed in achieving what she
really wants,
i.e.
to order respondent to sign documents to
transfer the property out of her name to at this stage unknown
persons and thereby relinquishing
her ownership in the property.
Consequently, and in fairness to both parties, they should be ordered
to pay their own costs.
XIV
ORDERS
[40]
1)
The
Master of the High Court is authorised to accept a copy of the will
of Dintsejang Dinah Mochochoko executed on 5 January 1994
as her last
will and testament.
2)
Save
for the relief granted in paragraph 1, the application is dismissed.
3)
Each
party shall be liable for her own legal costs.
____________
J P
DAFFUE, J
On
behalf of applicant: Adv A P Berry
Instructed
by: Stander and Green
BLOEMFONTEIN
On
behalf of the 1
st
respondent: Adv P S Mphuloane
Instructed
by: Tshangana Attorneys
BLOEMFONTEIN