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[2018] ZAECMHC 9
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Congregation Service Committee of the Jehovah's Witness Church Congregation-eNgcobo v eNgcobo Municipality and Others (4028/16) [2018] ZAECMHC 9 (20 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 4028/16
Heard
on: 08/02/18
Delivered
on: 20/02/18
In
the matter between:
CONGREGATION
SERVICE COMMITTEE
OF
THE JEHOVA’S WITNESS CHURCH
CONGREGATION-ENGCOBO
Applicant
and
ENGCOBO
MUNICIPALITY
1
st
Respondent
OLD
APOSTOLIC CHURCH OF
AFRICA
2
nd
Respondent
REGISTRAR
OF
DEEDS
3
rd
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
The Applicant seeks a relief that the registration of erf 2216,
Engcobo that took place on 19 June 2001 into the name of the
Second
Respondent be declared null and void
ab initio
; that the Third
Respondent be ordered to cancel such registration; and that the First
and Second Respondent be ordered to cause
such property to be
transferred into the name of the Applicant.
[2]
The relief sought is based on the contentions made on the founding
affidavit that the First Respondent perpetrated fraudulent
acts
manipulated the transfer and deliberately altered and/or swapped
around erven 2216 and 2215 to benefit the Second Respondent
unduly.
Those assertions are premised on the documents, attached to the
founding affidavit, described as annexures “B”,
“I”,
“J” and “K”.
[3]
Annexure “B” is an agreement of sale of erf 2216 by the
First Respondent in favour of the Applicant. It was
signed by
the “Purchaser” on 24 July 2003 and only one of two
witnesses. The representative of the Seller, the
Municipal
Manager appended his/her signature but without an indication being
made as to the date when signing could have taken
place.
Therefore it cannot be said that the document was properly signed.
But for present purposes the Court will proceed
on the premise that
the Applicant and First Respondent did sign the agreement of sale in
2003.
[4]
Annexure “I” is a letter written by one Mr M. Giqo on 21
May 2012, and addressed it to the Presiding Elder of the
Applicant.
What the letter says is that on 21 January 1994 erf 578, the property
of the First Respondent, was sold to one
Mr S.M. Mase at R880.00.
However, following upon a survey that was sanctioned by the
government in 2000, that property was
changed to erf 2216. Then
on 24 July 2003 the Applicant did not only become the buyer but the
First Respondent executed a
Power of Attorney to transfer erf 2216 in
favour of the Applicant. A Clearance Certificate was also
executed on the same
date as a preparatory step towards transfer of
the property to the Applicant.
[5]
Annexure “K” is a letter written on 13 January 1999 by
the Acting Town Clerk of the First Respondent to the Third
Respondent
requesting an advice concerning the legal steps that the Applicant
may take to obtain a title deed.
[6]
The allegation that the Applicant and First Respondent signed the
documents as aforesaid with a purpose of achieving transfer
of erf
2216,
albeit
that had already been transferred and
registered into the name of the Second Respondent in 2001, serves to
trigger a conundrum that
the Applicant had to explain convincingly.
[7]
Based on annexures “B”, “I”, “J”
and “K” it was contended on behalf of the Applicant
that
on the causal theory of transfer of an immovable property the
underlying cause for the transfer of erf 2216 was marred by
fraud,
manipulation, wrongful swapping/confusion of erf 2216 and 2215 and
irregularities. It was also argued on behalf of
the Applicant
that the First Respondent did not have the intention to sell erf 2216
to the Second Respondent because a written
agreement of sale and the
Power of Attorney were not made. In support of these
submissions the case of
Mvusi v Mvusi N.O. and Others
1995 (4)
SA 994
(Tk S) at 999 B─H was referred to the Court. The
following appears at 999 B─H:
“
What was, in
principle, necessary in order that
dominium
should
pass? Carey Miller, in his work
The
Acquisition and Protection of Ownership,
deals with the matter at 118 onwards. The first requirement, he
says, is that the parties must be in a position to pass and
acquire
ownership, which means normally that the transferor must be the owner
or authorised by the owner. I would add that
in regard to
property in a deceased estate the transferor must clearly be the
executor or representative or a person authorised
by him. There
are exceptions to the rule that the transferor must be the owner (or
authorised by him) but they are irrelevant
in the present case.
The second requirement listed by the learned author – that the
parties must be legally competent
to give and receive ownership –
does not call for consideration here. And the third requirement
is that the parties
must intend the passing of ownership. In
this regard the learned author deals with the difference between the
‘abstract’
and the ‘causal’ approach to the
transfer of dominium. He states at 123 para 9.2.2.3 (
a
)
that:
‘
An
abstract approach to the transfer of dominium is concerned with the
parties’ intention to pass and receive ownership, in
the
abstract, regardless of whether this is supported by an underlying
causa or basis. On the other hand, the causal approach
requires
a linking
causa
or basis – typically, an underlying contract – which can
be seen as the
raison
d’ȇtre
for
delivery.’
He thereafter
reviews the authorities and cases and comes to the conclusion, in
para 9.2.2.3 (
c
) at 128 onwards, that in modern law the
abstract approach and not the causal approach has now to be
accepted. This is clear
from the cases cited by him,
particularly
Commissioner of Customs and Excise v Randles,
Brothers and Hudson Ltd
1941 AD 369
and
Trust Bank van Africa
Bpk v Western Bank Bpk en Andere NNO
1978 (4) SA 281
(A).
In Transkei the same conclusion was reached in the case of
Centane
Distribution and Wholesalers (Pty) Ltd and Others v Bontsi,
a
decision of the Full Bench of this Court delivered on 18 March 1982
and which is – somewhat surprisingly – not yet
reported.”
[8]
The complaints raised by the Applicant against the First Respondent
are quite evidently not directed to the intention governing
the
registration of transfer of erf 2216. It is directed to
the underlying cause of ownership from the First to Second
Respondent.
[9]
In the
Randles Brothers
case,
supra
, Centlivres JA made
profound statements which read as follows at 411:
“
The legal
transaction preceding the
tradition
may
be evidence of an intention to pass and acquire ownership, but there
may also be direct evidence of an intention to pass and
acquire
ownership
and,
if there is, there is no need to rely of a preceding legal
transaction
...
To put it more briefly it seems to me that the question whether
ownership passed depends on the intention of the parties and
such
intention may be proved in various ways.”
[10]
What the
Randles Brothers
case means is that for the Applicant
to succeed it must show that the registration of transfer of erf 2216
itself, as a separate
transaction from the underlying causa for the
sale, is vitiated by fraud and/or irregularities from which an
intention to pass
ownership would not arise.
[11]
There is paucity of facts that support the contentions made by the
Applicant to impugn the title deed on erf 2216 or for that
matter the
underlying cause (s) that preceded the registration of transfer in
2001. For this reason the Second Respondent
resists the
Applicant’s case on facts and law. It states on affidavit
that it bought erf 2216 from the First Respondent
at a fair market
price, without fraud or any irregularities and the requisite
intention of being a legal owner as is confirmed
in the title deed.
It states that the current manager of the First Respondent has not
filed an affidavit supporting the Applicant’s
case.
[12]
On law, the starting point must be that the Applicant has not
disclosed its right in erf 2216 for which a declaratory may be
decided in its favour. The whole issue of the conversion of erf
578 to erf 2216 is so remotely connected to the contractual
arrangements between the First and Second Respondents that it can be
safely regarded as irrelevant. I find re-inforcement
for the
correctness of this conclusion from the fact that erf 2216, a
separate property from erf 578, was sold and registered in
2001, some
two years prior to the conclusion of the agreement of sale between
the Applicant and the First Respondent. In
my view such a
belated step, assuming it to be correct, cannot impact on the causa
for the sale and the registration of erf 2216
that followed.
The allegations of fraud, manipulation and irregularities against the
registration of erf 2216 have not been
substantiated in the evidence
and as matters stand one cannot phantom the
essence
of such allegations. The allegations based in annexures “B”,
“I”, “J” and “K”
are disconnected
from the events preceding the registration of erf 2216 on 19 June
2001. Such documents have no bearing on
the intention of the
First Respondent at the time when it sold erf 2216 to the Second
Respondent. The allegation that there
was swapping/deliberate
confusion and alteration of erf 2215 for 2216 that resulted in the
Applicant obtaining registration of
erf 2215 is equally preposterous.
[13]
The minutes of the First Respondent dated 6 January 2002 referred to
in annexure “G” a letter by the Applicant’s
attorneys addressed to the First Respondent, have not been made
available. Thereupon the allegation that the Council and
First
Respondent had resolved to sell erf 2215, not erf 2216, to the Second
Respondent cannot be true and correct.
[14]
In a nutshell, the Applicant has failed to make out a case of either
a defective underlying cause or defective intention of
transfer of
erf 2216 from the First to Second Respondent. An issue of
disputed rights has not arisen in this case.
A declaratory is,
therefore, an incompetent relief here. The same goes about the
relief for cancellation of the title deed
on erf 2216. In the
circumstances the Third Respondent cannot be directed to transfer erf
2216 to the Applicant.
[15]
The costs shall follow the result.
[16]
In the result the following order shall issue:
The application
is dismissed with costs.
_______________
___________________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Attorney
for the Applicant : Mr S. Mgxaji
c/o Mgxaji & Co
Inc
MTHATHA.
Counsel
the 2
nd
Respondent : Adv. D.C. Botma
Instructed
by
: Nelson Attorneys
c/o Keightley
Sigadla & Nonkonyana Inc
MTHATHA.