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[2018] ZANCHC 7
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Fischer N.O and Others v Mahlabe (1817/2017) [2018] ZANCHC 7 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
( NORTHERN CAPE
PROVINCIAL DIVISION, KIMBERLEY )
Case number:
1817/2017
Date heard:
16/02/2018
Date delivered:
02/03/2018
In
the matter between:-
CHARLES
AREND FISCHER N.O.
FIRST APPLICANT
JENNIFER
ANNE FISCHER N.O.
SECOND APPLICANT
NEIL
CARLISLE CURRIE
N.O.
THIRD APPLICANT
AND
LEFIFI STEPHENS
MAHLABE
RESPONDENT
Coram:
Stanton AJ
JUDGMENT
STANTON AJ
INTRODUCTION:-
[1] The
applicants, CA Fischer, JA Fischer and NC Currie, the trustees of the
Charles Fischer
Farming Trust (IT 2014/1997) (''the Trust"),
filed an application, requesting that the respondent, Mr LS Mahlabe,
be ordered
to remove his cattle and/or livestock from the immovable
properties known as the farm Vaalboshoek, Windsorton and the farm
Vaalkop,
Barkly West District ("the immovable properties").
[2] The
respondent opposed the granting of the relief on the merits. In
addition, the respondent
raised a point
in limine,
namely that
a dispute of fact exists pertaining to the validity of the transfer
of the immovable properties into the name of the
Trust.
FACTS NOT IN DISPUTE:-
[3] It
is not in dispute that:-
3.1
the
Dirisanang Small Farmers Communal Property Association ("the
CPA'') was the registered owner of the immovable properties
until 14
December 2012 when it transferred the ownership thereof to Lerospot
(Pty) Ltd (“Lerospot") in terms of deed
of transfer
T3466/2012;
3.2
on
23 June 2014, Lerospot sold the immovable properties to the Trust in
terms of a written sale agreement ("the sale agreement'').
The
immovable properties were registered in the name of the Trust on 31
October 2014 in terms of deed of transfer T2110/2014;
3.3
during
September 2014, the Trust granted the respondent two years to remove
his cattle from the immovable properties; and
3.4
the
respondent, has to date, not vacated the immovable properties.
APPLICATION AND
ACTION:-
[4] Before
I deal with the merits of this application, it is appropriate to
briefly refer
to the preceding application and the pending action,
issued in this court.
[5] On
22 May 2013, under case number 767/2013, the CPA obtained an interim
order that
prohibited Lerospot and three others (not the Trust) from
transferring the immovable properties to Lerospot, pending the
finalisation
of an action to be instituted for the setting aside of
the transfer under deed of transfer T3466/2012. The action had to be
instituted
within thirty days of 09 August 2013, in the event of the
rule
nisi
being confirmed.
[6]
On
07 June 2013, the rule
nisi
was discharged by agreement. An
order was also granted that, pending the final determination of an
action to be instituted by the
CPA within thirty days for an order
setting aside the transfer of the immovable properties under deed of
transfer T3466/2012, the
parties were prohibited from withdrawing or
transferring the funds held in the CPA's name.
[7]
On
16 July 2013 and under case number 767/2013, the CPA instituted
action against Lerospot and seven other defendants, in terms
of which
it,
inter a/J'a,
claimed an order to declare the transfer of
the immovable properties to Lerospot on 14 December 2012 unlawful and
void
ab initio
C'the action'').
[8]
Lerospot
defended the action and filed its plea on 08 November 2013. In
addition, and also on 08 November 2013, Lerospot filed a
notice in
terms of Rule 7 of the Uniform Rules of Court, in terms of which it
placed the authority of the CPA's attorney to act
on behalf of the
CPA, in dispute. The CPA did not respond to the Rule 7 notice.
[9]
Since
08 November 2013, no further steps have been taken to finalise the
action.
[10]
Neither the Trust, nor the repondent, were cited as parties in the
application or the action.
[11] Mr
Ehrlich, on behalf of the respondent, submitted that the Trust should
have taken the necessary
steps to join the action and, thereafter, to
bring it to finality. In my view, this submission is without merit.
REI
VIND/CATIO:-
[12]
The
Trust relies on the
rei
vindicatio
as the
basis for the granting of the relief. It is trite that an owner of
immovable property who claims possession of his/her immovable
property with the
rei
vindicatio,
must
allege and prove:
[1]
-
12.1 ownership
of the land; and
12.2 that
the respondent is in possession of the land.
[13]
If
a respondent claims, as a defence to the claim for eviction, some or
other right to possession, the onus is on the respondent
to prove the
existence of that right.
[2]
OWNERSHIP:-
[14] The
first issue that requires determination, is the ownership of the
immovable properties.
[15]
It
is trite that proper proof of ownership is effected by the production
of the relevant title deed.
[3]
[16] As
proof of its ownership of the immovable properties, the Trust,
initially relied on the
deeds search printouts. The respondent
disputed that the printouts are conclusive proof of ownership,
whereafter the Trust attached
a copy of the title deed to its
replying affidavit.
[17] On
14 February 2018, the respondent served a notice in terms of Rule 35
(12) on the Trust,
requesting it to produce for inspection, the
original, or a duly certified copy of the deed of transfer
T2110/2014. On 15 February
2018, the Trust provided the respondent
with a certified copy of the deed of transfer.
[18] At
the commencement of the proceedings, Mr Ehrlich conceded that the
Trust, by complying
with the Rule 35 (12) notice, has provided
sufficient proof that it is the registered owner of the immovable
properties.
[19] In
view of the concession made by Mr Ehrlich and the production of the
title deed, it is indisputable
that the Trust is the registered owner
of the immovable properties.
RIGHT
TO POSSESS:-
[20]
It is not denied that the respondent is in occupation of the
immovable properties. As I
understand the respondent's case, he has a
right to occupy the immovable properties, based on the following,
namely:-
20.1
Lerospot acquired the immovable properties in fraudulent
circumstances, of which the First Applicant
was aware;
20.2
the transfer of the immovable properties from the CPA to Lerospot was
consequently unlawful and
void;
20.3
as a result, the Trust could not obtain valid transfer of the
immovable properties from Lerospot;
20.4
the pending action prohibits the Trust from requesting the relief in
casu,
and
20.5
the respondent has a "historical right" to occupy the
immovable properties as he has,
over the past nineteen years, as a
member of the CPA, grazed his cattle on the immovable properties.
[21] Mr
Ehrlich contended, on behalf of the respondent, that Lerospot
acquired the immovable properties
from the CPA under "seemingly
fraudulent circumstances" and that this casts doubt over the
Trusts's ownership of the
immovable properties. He argued that, as a
result of the fraud, the ownership of the immovable properties was
not lawfully transferred
to Lerospot and consequently, the Trust
could not have acquired ownership thereof.
[22] In
support of his argument, Mr Ehrlich relied on paragraph 5.2.2 of the
deed of sale, attached
to the founding affidavit, as proof of the
fact that the Trust was aware of the alleged fraudulent transaction.
Paragraph 5.2.2
of the written deed of sale, however, provides as
follow:-
''Die Koper boekstaaf dat die
Koper daarvan bewus is dat die Verkoper tans in 'n regsgeding
betrokke is met die onregmatige okkupeerders
van die Dirisanang Small
Farmers Communal Property Association ter afsetting van die
onregmatige okkupeerders en die afwysing van
'n aksie deur die
Dirisanang Small Farmers Communal Property Association.
"
[23] Mr
van Niekerk, on behalf of the applicants, correctly submitted that
the answering affidavit
does not contain a single allegation that the
Trust acted fraudulently in acquiring the immovable properties from
Lerospot. He
added that any averments in the answering affidavit that
relates to fraud, are limited to the transaction between the CPA and
Lerospot.
In my opinion, paragraph 5.2.2 of the written deed of sale
confirms the absence of fraud by the Trust.
[24]
With
regard to the effect of fraud on the transfer of an immovable
property, Mr van Niekerk and Mr Ehrlich both relied on the judgment
in Nedbank Ltd v Mendelow NO and another,
[4]
where Lewis JA confirmed that:-
"Where
registration of a transfer of immovable property is affected pursuant
to fraud or a forged document, ownership of the
property does not
pass to the person in whose name the property is registered after the
purported transfer. Our system of deeds
registration is negative: it
does not guarantee the title that appears in the deeds register.
Registration is intended to protect
the real rights of those persons
in whose names such rights are registered in the Deeds Office. And it
is a source of information
about those rights. But registration does
not guarantee title, and if it is effected as a result of a forged
power of attorney
or of fraud, then the right apparently created, is
no right at all.
This Court has recently
reaffirmed the principle that where there is no real intention to
transfer ownership on the part of the
owner or one of the owners,
then a purported registration of transfer (and likewise the
registration of any other real right, such
as a mortgage bond) has no
effect
"
[25]
In Legator McKenna Inc. v
Shea,
[5]
Brand JA, with reference to the judgment in Commissioner of Customs
and Excise v Randles, Brothers and Hudson Ltd,
[6]
confirmed,
in the first instance, that the abstract theory of transfer of
ownership applies to immovable property, and, secondly,
that if there
is any defect in what he termed the "real agreement" - that
is, the intention on the part of the transferor
and the transferee to
transfer and to acquire ownership of a thing respectively - then
ownership will not pass, despite registration.
This principle was
unanimously approved and has been followed consistently since
then.
[7]
APPLICATION OF THE LAW:-
[26] In
the absence of any allegation that the transaction between Lerospot
and the Trust was tainted
by fraud, I can arrive at no other
conclusion that it was the intention of Lerospot to the sell the
immovable properties to the
Trust and that the Trust intended to
obtain ownership thereof. I accordingly find that the underlying
agreement and the registration
of the transfer of the immovable
properties to the Trust, are valid.
[27] With
regard to the defence of an "historical right", I find that
any right the
respondent may have had to occupy the immovable
properties, seized to exist when the CPA divested of its ownership of
the immovable
properties.
[28] Based
on the aforegoing, I find that the respondent failed to establish
that he was vested with
some enforceable right that entitles him to
remain in occupation of the immovable properties.
DISPUTE
OF FACT:-
[29]
According to the
respondent, the Trust ought to have foreseen an intractable dispute
of fact relating to the validity of the sale
of the immovable
properties by Lerospot to the Trust, which dispute cannot be resolved
on the papers. Mr Ehrlich submitted that
the application should be
dismissed on the basis that the Trust failed to seek a referral to
oral evidence or a trial to determine
the alleged underlying
impropriety.
[i]
[30]
In
view of my findings in respect of the merits, I am not persuaded that
the respondent raised a real, genuine or
bona
fide
dispute of facts
that cannot be resolved on the papers, as envisaged by the
Plascon-Evans rule.
[8]
COSTS:-
[31] Neither
party requested a cost order on a punitive scale. There is no reason
why the costs
of this application, should not follow the result.
IN THE CIRCUMSTANCES, I MAKE THE
FOLLOWING ORDERS:-
1.
The
respondent, Mr LS Mahlabe, is ordered to remove his cattle and/or
livestock from the immovable property known as the farm Vaalboshoek,
Windsorton, within 10 (ten) calendar days of the grating of this
order;
2.
The
respondent, is ordered to remove his cattle and/or livestock from the
immovable property known as the farm Vaalkop, Barkly West
District,
within 10 (ten) calendar days of the grating of this order;
3.
The
applicants, CA Fischer, JA Fischer and NC Currie, in their capacities
as trustees of the Charles Fischer Farming Trust (IT2014/1997),
are
authorised to remove the cattle and/or other livestock from the farm
Vaalboshoek, Windsorton and the farm Vaalkop, Barkly West.
District,
and to take the animals to a shelter, should the respondent fail to
adhere to the orders set out in paragraph 1 and 2
hereof;
4.
The
applicants are authorised to approach the Court, on the same papers,
as amended, if necessary, to claim payment of the costs
incurred in
terms of paragraph 3 hereof; and
5.
The
respondent is ordered to pay the costs on a party and party scale.
A STANTON
ACTING JUDGE
Northern
Cape Division, Kimberley
On
behalf of the applicant
:
Adv J.G Van Niekerk ( Haarhoffs Inc.)
On
behalf of the Respondent
:
Adv D Ehrlich (Engelsman Magabane
Attorneys)
[1]
GOUDINI CHROME (PTY) LTD V MCC CONTRACTS (PTY) LTD
[1993] 1 ALL SA
259
(A) AT 261.
[2]
CHETTY VS NAIDOO
[1974] ALL SA 304
(A) AT 309.
[3]
GOUDINI CHROME (SUPRA) AT 261.
[4]
[2013] JOL 30797
(SCA) PAGE 6
[5]
LEGATOR MCKENNA INC V SHEA
2010 (1) SA 35
(SCA) PARAS [21] AND [22]
[6]
1941 AD 369
[7]
KNYSA HOTEL CCV COETZEE NO
[1997] ZASCA 114
;
1998 (2) SA 743
(SCA) AT PAGE 753
[8]
PLASCON-EVANS PAINTS LTD V VAN RIEBEECK PAINTS (P"TY) LTD 1984
(3) 623 (A) AT 634E - 635C
MEINJIES N.O. V COETZER
2010 (5) SA
186
(SCA) PARA [9]; GAINSFORD AND OTHERS NNO V TIFFSKI PRPPERTY
INVESTMENTS (PTY) LTD
2012 (3) SA 35
(SCA) PARAS [38] AND [39].
[i]