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[2017] ZAGPPHC 163
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Nano and Another v Mosima and Others (53521/15) [2017] ZAGPPHC 163 (8 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
CASE
NO: 53521/15
8/2/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SIPHO
JERRY
NANO 1
ST
APPLICANT
BONGILE
LINAH
KUMALO 2
ND
APPLICANT
And
TSHOKOLO
HERMAN
MOSIMA 1
ST
RESPONDENT
KEBOGILE
EURITU
SCOTT 2
ND
RESPONDENT
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY 3
RD
RESPONDENT
JUDGMENT
RAULINGA
J,
1.
In this application the applicants seek relief in the
following terms:
1.1.
Declaring
that the Deed of Sale entered by and between the applicants and the
respondents dated 4 September 2012 is
null and
void ab initio;
1.2.
Declaring
that the Memorandum of Agreement entered by and between the
applicants and the respondents dated 8 October 2012 is
null
and void ab initicr,
1.3.
That
the first and second respondents pay the amount of R233 000.00
together with interest calculated at the rate of 9% per annum
from 26
November 2014 until date of final payment, to the applicant;
1.4.
That
the first and second respondent or any other persons found to be
occupying the immovable property situated at Portion 2 of
Holding
119, President Park Agricultural Holdings, Registration Division J.R;
Province of Gauteng and known as Stand 2/119, Boshoff
Road, President
Park, Halfway House, Midrand, Gauteng (herein referred to as "the
immovable property'') by themselves or through
the said respondents
be ordered to vacate the immovable property within
fourteen(14)calendar days form the date upon which the
order is
granted, alternatively such other date as may be determined by this
Court;
1.5.
Should
the first and second respondents or any other such persons fail
and/or refuse to vacate the immovable property within 14
days or such
other period, the Sheriff of this Court or a Sheriff as authorized by
this Court,be authorized and directed to forthwith
enter the
immovable property and evict them forthwith;
1.6.
That
no order as to costs be made, except if any of the respondents oppose
the relief sought,in which event the respondent(s) so
opposing be
ordered to pay the applicants' costs on the scale as between attorney
and client, jointly and severally, the one paying
the other to be
absolved; and
1.7.
Such
further and/or alternative relief as may be required to be granted to
the applicants.
2.
The first and second applicants will be referred to as
the applicants and the first and second respondents as respondents.
3.
During August 2012 the respondents approached the
applicants with a proposal to buy a portion of the applicant's
immovable property.
During the same month of August 2012, the
respondents attended at the applicants' home and handed them a pro
forma Hortor's offer
to purchase (which would constitute a Deed of
Sale) which the applicants completed but unsigned by the respondents.
4.
The applicants signed the agreement on 13 August 2012.
The respondents only signed the agreement on 4 September 2012 after
the first
part of the purchase price, Rl00 000 00 had been paid into
the account of the applicants. The total purchase price agreed upon
was R200 000 00. No agreement was reached on how the outstanding
balance of Rl00 000 .00 would be paid, however the understanding
was
that it would be paid in monthly installments.
5.
During September 2012 the respondents commenced with the
construction of a house on the immovable property which was completed
by
end October 2012.
6.
In December 2012 and in accordance with the oral
agreement and understanding between the parties the respondents were
supposed to
pay the outstanding purchase price of Rl00 000.00 in
monthly installments. After numerous demands for payment, the
respondent attempted
to sell the house they built, during January
2013 to a third party. The applicants objected to such sale due to
the mortgage bond
with SA Home Loans which was not settled yet and
would therefore make transfer of the relevant part of the immovable
property to
another purchaser impossible.
7.
In March 2013, it was orally agreed between the parties
that the applicants would buy back the property from the respondents
and
that the applicants would pay R20 000.00 per month. From March
2013 until September 2014, the applicants had paid the respondents
the amount of R33 000.00 but due to financial constraints, the
applicants failed to continue further payments.
8.
As a consequence, another agreement was reached on 8
October 2014 on the instance of the respondents, as set out in the
memorandum
of understanding which is annexed as "SN3". It
was agreed between the parties that the applicants would pay a
purchase
price of R532 000.00 for the immovable property, payable
with a first installment of R300 000.00. The remainder of the
purchase
price was payable in unspecified installments but after the
amount of R33 000.00 would have been deducted.
9.
On 10 October 2014, pursuant to the agreement signed on
8 October 2014, the applicants paid the amount of R300 000.00 to the
respondents.
Proof of payment is annexed as "SN4".
10.
On
18 November 2014, the respondents through their attorneys addressed a
letter to the applicants demanding immediate payment of
the amount of
R219 000.00 in terms of the agreement. Subsequent to that, on 26
November 2014 the applicants through their attorneys
addressed a
letter to the respondents informing them that the agreements were
illegal and
void ab initio,
and
that the respondents were in unlawful occupation of the premises. The
respondents were also advised that the agreements did
not comply with
statutory provisions. The exchange of letters culminated in the
present application.
11.
It
is trite that any transaction that infringes on a statutory
prohibition is void ab initio. In casu, the sale transaction
infringes
on section 5 of the Agricultural Holdings (Transvaal)
Registration Act, 22 of 1919(as amended), which prohibits the sale
and/or
subdivisions of an agricultural holding (which prohibition is
also recorded in the title deed of the immovable property). n the
alternative, the purported deed of sale central to the transaction,
does not comply with section 2(1) of the Alienation of Land
Act, 68
of 1981 (as amended).
12.
The
title deed conditions pertaining to Agricultural Holdings provides as
follows:
"Subject to the
following further conditions:
(a)
The
holding is held as an agricultural holding and it may be used only
for the purpose contemplated by the definition of that term
contained
in the Agricultural Holdings (Transvaal) Registration Act 1914.
That definition reads as
follows:
'Agricultural Holdings
shall mean a portion of land not less than 8565 square metres in
extent used solely or mainly for the purpose
of agricultural or
horticulture or for breeding or keeping of domestic animals, poultry
or bees'.
(b)
(i)
The holding may not be subdivided nor may any portion of it be sold,
leased or disposed of in any way without the written approval
of the
Board first had and (sic)obtained".
13.
"5.
Restrictions on giving out or sub-dividing lots –
(1)
While a certificate granted under this Act remains in
force as regards any area of land, it shall not be lawful for the
owner thereof
to, lease or dispose of any lot or portion othetwise
than in accordance with the general plan submitted to the Board
without the
written approval of the Board nor shall the owner of any
part of his lot or portion without the written approval of the Board
and
that approval shall not be granted if in the opinion of the Board
the proposed sub-division of the lot or portion would render it
unsuitable for occupation as an agricultural holding or if after the
proposed sub-division or any part of such lot or portion would
be
less in extent than one morgart'.
14.
It
is important to highlight the definition of "agricultural land"
for purposes of the Sub division of Agricultural
Land Act, 70 of
1970 (as amended, excludes "land which forms part of any
subdivided in terms of the Agricultural Holdings(Transvaal)
Registration Act, 1919(Act No.22 of 1919). The said Act is not
applicable to the transaction.
15.
The
contention by the respondents that the applicants were aware of the
prohibition and that any defect was "cured and substituted"
by the "memorandum of understanding" dated 8 October 2014,
cannot be sustained on the basis the sale transaction in respect
of a
portion of the immovable property was entered into without approval
by the Board. The said sale transaction and any sub-division
of the
immovable property was prohibited by the statute.
16.
On
perusal of the papers, it is evident that the purported deed of sale
is a pro-forma contract obtained from Hortors Stationary.
The said
deed of sale does not comply with statutory formalities in that:
16.1
The
particulars of the applicants (the sellers) are specified under the
"purchasers" section;
16.2
The
identities and particulars of the respondents (as purchasers) are not
recorded on the contract;
16.3
The
description of the land sold is vague, not identifiable and is not
ascertainable from the wording of the contract eg "selling
portion of our 25 X 20 Square metres in our property".
17.
Section
2(1) of the Alienation of Land Act, 68 of 1981(as amended) provides:
"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 deed of alienation signed by the parties thereto or by
their agents acting on their written
authority".
18.
I
agree with the submission of the applicants that the section cannot
be waived by a seller or a buyer and that it must be strictly
interpreted. See in this regard
Wilken v
Kohler
1913 AD 135
- 142.
19.
The
effect of non-compliance with the requirements of section 2(1) of the
above Act is that the contract shall "not be of any
force or
effect." Any transaction which has no force or effect is
necessarily
void ab initio,
and
can under no circumstances confer any right of action, -
Wilken
V Kohler 1913AD
supra at 143. Such is the
case in the instant matter. Further to that, the position in law is
that a rights holder cannot transfer
more rights than the rights he
or she holds. Consequently, the sale transaction between the parties
is illegal and unenforceable.
This is despite the submission by the
respondents that the applicants as well as the respondents were not
aware of the conditions
in the Deed of Transfer.
20.
It
is now trite law that the identity of the parties is as essential a
term of the contract as is the subject matter. Parol evidence
is not
admissible to vary the provisions of a written alienation of land in
so far as they identify parties -Christie's Law of
Contract in South
Africa page 127.
21.
The
evidential consequence in this matter is that subject to
section 2(2)
of the
Alienation of Land Act, any
party who has performed partially
or in full in terms of alienation of land which is of no force or
effect in terms of
section 2(1)
or contract which has been declared
void in terms of the provisions of
section 24(1)(c)
, or has been
cancelled under this Act, is entitled to recover from the other party
that which he has performed under the alienation
or contract.
Therefore any of the parties may still have a remedy to recover any
money that might have been lost.
22.
It
is not disputed that the respondents paid the applicants the amount
of R100 000.00 during October 2012 pursuant to the purported
deed of
sale. By 10 October 2014, the applicants had paid the total amount of
R333.000.00 pursuant to the "memorandum of understanding".
23.
Since
the respondents have raised no defence against the applicants' claim
in the amount of R233.000.00, therefore the applicants
are entitled
to payment of R233.000.00 being the net difference between their
performance of R333,333.00 and the performance by
the respondents in
the amount of Rl00 000.00.
24.
It
is not in dispute that the applicants are the registered owners of
the immovable property. t is my considered view that the respondents
are in unlawful possession of a portion of the property. The
applicants have already notified the respondents that the agreements
are void. The respondents should therefore vacate the immovable
property within sixty (60) days of the order being granted. Moreover
the applicants have since complied with the provisions of section 4
of the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act, 19 of 1998(as amended).
25.
Accordingly
I make the following order:
25.1
The
two agreements concluded between the parties are declared null and
void for infringing statutory prohibitions and for lack of
statutory
compliance.
25.2
The
respondents are ordered to pay to the applicants an amount of
R233.000.00 on or before the 30 March 2017.
25.3
The
respondents are ordered to restore possession of the immovable
property to the applicants within 30 days of this order.
25.4
The
respondents are ordered to pay the costs of this application on party
and party scale.
JUDGE
OF THE GAUTENG HIGH COURT