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[2017] ZAGPPHC 649
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Mampuru v Matsimela and Others (49982/12) [2017] ZAGPPHC 649 (24 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 49982112
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
SELBY
SEGOPOTSE
MAMPURU
Plaintiff
and
REFEDILE
TURNER
MATSIMELA
First
Defendant
ALL
·
UNLAWFUL
OCCUPIERS
OF
Second
Defendant
ERF
[…] MAHUBE VALLET EXT 3
MAMELODI
EAST
TSHWANE
LOCAL
MUNICIPALITY
Third
Defendant
Dates
of Hearing: 25 August 2016, 26 August 2016, 3 October 2016, 24
October 2016
·
Date
of Judgment: 24 February 2017
JUDGMENT
BARNES
AJ
Introduction
1.
In this action, the plaintiff and the
first defendant both claim title to erf […], Mahube Valley,
Ext 3, Mamelodi East ("the
property"). The property has
been registered In the plaintiff's name since May 2008. Priorto that
it was registered in the
name of the first defendant who still
occupies it.
2.
The plaintiff seeks the eviction of the
first defendant from the property In terms of the Prevention of
Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998 ("the
PIE Acf') and damages. The first defendant contends that the property
was transferred
into the plaintiff's name fraudulently. He opposes
the eviction action and counterclaims for the transfer of the
property back
into his name.
The
Evidence
3.
The plaintiff, Mr Mampuru, is a
practising attorney. He gave evidence and called Mr Collins Serepong,
an estate agent, to testify
on his behalf. The first defendant, Mr
Matsimela, is a police officer. He testified on his own behalf.
The
Plaintiffs Case
The
Evidence of the Plaintiff: Mr Mampuro
4.
The story begins in May 2005. Mr Mampuru
was looking to purchase a home In Mamelodi and engaged the services
of Mr Collins Serepong,
an estate agent operating under the name and
style of Timcol Properties In Mamelodi.
5.
In June 2005, Mr Serepong identified the
property as one which met Mr Mampuru•s requirements. It was
owned by the first defendant
In late June 2005, Mr Serepong took Mr
Mampuru to view the property. The first defendant was present during
the viewing and showed
the two around.
6.
Mr Mampuruwas keento purchase the
property and communicated this to Mr Serepong. On 28 June 2005, a day
or two after the viewing,
the two met in order to prepare a written
offer to purchase. The meeting was held at Mr Mampuru's home. Mr
Serepong arrived with
an agreement of sale printed on a Timcol
Properties letterhead. The agreement was a standard form one which
made provision for the insertion of the
specific details of
.
each
sale such as the
property
description, the purchase price, the personal details of the buyer
and seller and so forth. Mr Serepong had inserted the
proposed
purchase price of the property In the agreement by hand. This was
R185 000.00
7.
At the meeting on 28 June 2005, Mr
Serepong took Mr Mampuru through the agreement and, in his presence,
inserted the other applicable
details of the
proposed sale by hand. This included Mr
Mampuru's personal details, but excluded the personal details of the
first defendant. Mr
Mampuru then, in Mr Serepong's presence,
initialled every page of the sale agreement and signed and dated the
last page thereof.
8.
A few days latr, Mr Serepong informed Mr
Mampuru that the first defendant had accepted his offer to purchase
and delivered a copy
of the sale agreement signed by the first
defendant to Mr Mampuru at his home.
9.
The signed agreement contained the first
defendanfs personal details, inserted in Mr Serepong's
handwriting.These recorded,
Inter
alia,
that the first defendant was
unmarried. The signed agreement bore the first defendant's
initials and his signature on the last
page
.
The
signed agreement had however not been properly dated by the first
defendant In that while the day "2911 had been inserted
on the
signature page, the month and year had been left blank.
10.
In terms of clause 13.1 of the
agreement, the sale was conditional upon Mr Mampuru obtaining a bond
for the full amount of the purchase
pce within a month of signature.
Mr Serepong assisted Mr Mampuru with the bond application process
and, pursuant thereto, made
arrangements for Absa Bank
and Nedbank to value the property.
11.
On 23 August 2005, Mr Mampuru obtained a
bond for the full amount of the purchase price from Absa Bank.
Thereafter, Mr Mampuru attended
at the offices of the transferring
attorneys, Stopforth Swanepoel and Kruger Inc,
where
he signed the transfer documents.
12.
Some time passed and the first defendant
did not sign the transfer documents. When Mr Mampuru contacted the
transferring attorneys
and queried the delay, they informed him that
the first defendant had refused to sign the transfer documents.
13.
At no stage was Mr Mampuru Informed by
Mr Serepong or anyone else that the first defendant wished to cancel
the sale agreement.
14.
On 11 November 2005, Mr Mampuru sent a
letter to the first defendant by registered post. The letter demanded
that the first defendant
sign the transfer documents within ten days,
failing which Mr Mampuru would approach a court for an order
compelling him to do
so. No response was received to this letter.
15.
On 11 October 2006, Mr Mampuru brought
an application In this Court for an order declaring the first
defendant to be in breach of
the sale agreement and compelllng him to
sign the transfer documents. The first defendant did not oppose the
application. The order
was granted on 1 March 2007. The order was
served on the first defendant personally by the sheriff on 21May
2007. The first defendant
failed to comply with the order.
16.
On 18 September 2007, Mr Mampuru brought
an application in this Court for an order authorising the sheriff to
sign the transfer
documents In the first defendants stead. The first
defendant did not oppose the application. The
order was granted on 24 October 2007.
17.
Mr Mampuru testified that that court
order too was served on the first defendant by the sheriff. The
return of service in respect
of that court order does however, not
form part of the documentation before me.
18.
Pursuant to the aforesaid court order,
the transfer documents were signed by the sheriff and, on 6 May 2008,
the property was transferred
into Mr Mampuru's name.
19.
On 28 May 2008, the attorneys
representing Mr Mampuru sent a letter to the first defendant by
registered post. The letter attached
the court order of 24 October
2007 and recorded that, pursuant thereto, the sheriff had signed the
transfer documents and the property
had been transferred into Mr
Mampuru's name with effect from 6 May 2008. The letter gave the first
defendant 15 days
to
vacate the property falling which an application for his eviction
would be
brought.
20.
Prior to launching an eviction
application, Mr Mampuru had a mutual friend plead with the first
defendant to vacate the property.
When this was unsuccessful, Mr
Mampuru launched an application for the first defendants eviction on
14 July 2008.
21.
For reasons that were not explained in
evidence, a second application for the first defendant’s
eviction was launched simultaneously
with
.
the
first. As a
consequence,
the first eviction application was withdrawn. The second eviction
application was dismissed by Kollapen J for want
of compliance with
section 4(2) of the PIE Act.
22.
Thereafter,
on 29 August 2012, the current eviction action was launched.
[1]
The
Evidence of Mr Serepong
23.
In 2005, Mr Serepong ran his own estate
agency under the name and style of Timcol Properties in Mamelodi.
24.
Mr Serepong was friendly with the first
defendant who advised him, in June 2005, that he wished to sell his
property. Mr Serepong
valued the property and advised the first
defendant that It would fetch a market price of R185 000.00.
The first defendant was satisfied with
this and gave Mr Serepong the go-ahead to market the property.
25.
Mr Serepong identified the property as
one which met the requirements of one of his clients, Mr Mampuru. In
late June 20051 Mr Serepong
took Mr Mampuru to view the property. The
first defendant was present during the viewing and showed the two
around.
26.
lmediately after the viewing, Mr Mampuru
advised Mr Serepong that he
wished
to purchase the property. Mr Serepong advised Mr Mampuru, as was his
custom, to
.
"sleep
on It. On 28 June 2005, a day or two after the viewing Mr Serepong
met Mr Mampuru at his home in order to prepare a
written offer to
purchase. Mr Serepong arrived with his agency's standard form sale
agreement in which he had, in advance and by
hand, inserted the
applicable details of the proposed sale with the exception of the
personal details of the buyer and the seller.
27.
At the meeting on 28 June 2005, Mr
Serepong took Mr Mampuru through the agreement and inserted Mr
Mampuru's personal details in
the agreement by hand. Mr Mampuru then
initialled each page of the agreement and signed and dated the last
page in Mr Serepong's
presence.
28.
Immediately after his meeting with Mr
Mampuru, Mr Serepong telephoned the first defendant and told him that
he had a signed offer
to purchase the property. The two met the
following day at the first defendant’s home. Mr Serepong took
the first defendant
though the sale agreement and the first defendant
indicated that he wished to accept the offer. Mr Serepong accordingly
inserted
the first defendant’s personal details in the
agreement by hand. He did so by reading out each item aloud and
inserting,
in his handwriting, the answer received from the first
defendant When, in the course of this exercise, Mr Serepong read out
"marital
status”, the first defendant
laughed and said "you have been to
my house many times, have you ever seen a woman here?” Mr
Serepong accordingly inserted
"N/A” alongside this item.
The first defendant then initialled every page of the agreement and
signed the last page thereof. Mr
Serepong did not notice that the first defendant had not properly
dated the signature page.
29.
A few days later, Mr Serepong met the
first defendant at the Shell garage ln Mamelodl East and handed him a
copy of the signed agreement
of sale.
30.
Mr Serepong assisted Mr Mampuru with the
bond application process and pursuant thereto arranged for Absa Bank
and Nedbank to value
the property. The first defendant was present at
the property when the valuations were conducted.
31.
Absa Bank made an offer of a bond for
the purchase price of the property which was accepted by Mr Mampuru.
Thereafter, Mr Serepong
gave the necessary instructions to the
conveyancing attorneys: Stopforth, Swanepoel and Kruger Inc to effect
transfer.
32.
At some stage, the conveyancing
attorneys informed Mr Serepong that the first defendant was stalling
in relation to the signing
of the transfer documents. Mr Serepong
went to see the first defendant to enquire what the problem was. The
first defendant told
Mr Serepong that he had made an appointment to
see the conveyancing attorneys and assured him that everything was on
track. That
marked the end of Mr Serepong's involvement In the
matter.
33.
At no stage did the first defendant
state that he wished to cancel the sale agreement.
The
Evidence of the First Defendant: Mr Matsimela
34.
Mr Matsimela is a
police officer and is studying a bachelor of laws degree through the
University of South Africa.
35.
Mr Matslmela testified that he married
Sonto Lydia Matsimela in community of property on 1 February 2002 and
Is still so married.
Mr Matsimela's marriage certificate has however
never been discovered. This despite his marital status being in issue
in this action
and despite the plaintiff, for this reason, having
repeatedly called for Its production. I
will return to this issue In due course
below.
36.
Before dealing with Mr Matsimela's
evidence-in-chief, it is instructive to consider his version of
events as pleaded. This Is the
following:
36.1.
On
29
June 2005,
Mr Matsimela met Mr
Serepong, who was unknown to him, at the Shell garage in Mamelodi
East
36.2.
Mr Serepong presented him with a blank
agreement of sale.
36.3.
Mr Matsimela said that he would consider
selling his property but was not certain that he would be able to
obtain the consent of
his estranged wife. Mr Serepong said that he
would obtain the consent of Mr Matsimela's wife.
36.4.
No further particulars of the intended
sale of the property were discussed or agreed.
36.5.
Mr Serepong asked Mr Matslmela to sign
the blank agreement of sale stating that this would be an indication
to his estranged wife
that he had agreed to consider selling the
property and that it would be used to convince his wife that the
property should be
sold.
36.6.
Mr Matsimela initialled and signed the
blank agreement of sale.
36.7.
A few days later, Mr Matsimela
instructed Mr Serepong that he no
longer
wished to continue with the sale of the property because the consent
of his wife could not be obtained.
36.8.
Mr Serepong accepted this and told Mr
Mampuruthat hewould advise the purchaser accordingly.
37.
In his evidence-in-chief, Mr Matsimela
gave the following version:
37.1.
In 2005, Mr Matsimela told Mr Serepong
that he and his wife had separated and that he wished to sell his
property. Mr Serepong undertook
to look for a buyer.
37.2.
Some time later Mr Serepong contacted Mr
Matsimela and said that he had found a potential buyer. Mr Serepong
sent Mr Mampuru to
view the property one Saturday morning.Mr
Matsimela was present Mr Mampuru was accompanied by a woman. Mr
Serepong did not attend
the viewing.
37.3.
After the viewing, Mr Serepong contacted
Mr Matsimela and said that Mr Mampuru was interested in buying the
property.
37.4.
On 29 May 2005, Mr Serepong telephoned
Mr Matslmela and asked to meet him at the Shell garage In Mamelodl
East. Mr Matslmela obliged.
Mr Serepongwas in a hurry and gave him a
"blank agreement of sale” which he asked him to sign. Mr
Serepong said that
he would fill in the details later.
37.5.
Mr Matsimela initialled and signed the
"blank agreement of sale.• Mr Matslmela confirmed in
his evidence that
this was the Timcol Properties standard form
agreement of sale. Mr Matsimela testified that when he initialled and
signed it, it
contained no handwiitten Insertions, nor had it been
initialled or signed by Mr Mampuru.
37.6.
A few days later, Mr Serepong contacted
Mr Matsimela and asked for his personal particulars, including his
identity number. Mr Matsimela
provide these and thereafter, as he put
it: "Mr Serepong carried on with the sale of the house."
37.7.
Mr Matsimela testified that Mr Serepong
said that he would try to
speak
to his wife because he knew that the couple were separated and not on
good terms.
37.8.
Mr Matsimela testified that after he had
signed the blank agreement of sale and given Mr Serepong his personal
particulars, Mr Serepong
told him that the market value of the
property was R185 000.00. Mr Matsimela was not happy with this, as
far as he was concerned
the property was worth R300 000.00. He did
not know where the figure of R185 000.00 came from as the property
had never been valued.
He testified that Mr Serepong had told him
that certain banks would value the property but that this had never
happened.
37.9.
At some stage Mr Serepong told Matsimela
that he had not seen his wife. Mr Matsimela asked how they could
continue with the sale,
whereupon Mr Serepong replied not to worry,
he would fix it.
37.10.
Mr Matsimela was surprised when the
conveyancing attorneys called
.
him
and asked him to sign the transfer documents. He testified that "I
told them that I had told Mr Serepong that I was no
longer interested
in selling the house."
38.
In my view, Mr Matsimela's version that
he signed a blank agreement to sell his home - without knowing what
the purchase price would
be -is inherently
implausible. Moreover, with each
contradiction that emerged between Mr Matsimela's pleaded version and
his version-in-chief the
cracks in his story
deepened. Thus:
38.1.
Mr Matslmela's pleaded that Mr Serepong
was unknown to him and for some unexplained reason requested him, at
a petrol station,to
sign a blank agreement to sell his home. However,
In his evidence-In-chief Mr Matslmela testified that he knew Mr
Serepong and
asked him to
find
a buyer for his property.
38.2.
In his pleaded version, Mr Matslmela
stated that he signed the blank agreement of sale on 29 June 2005.
That is the day after Mr
Mampuru signed the agreement and therefore,
to that extent, accords with the version of events presented by
Mr Mampuru and
Mr Serepong.
However,
in his evidence-in-chief Mr Matsimela was adamant that he
in fact signed the agreement on 29 May
2005.Mr Matsimela could not explain this contradiction. In
particular, he could not explain
how or when it was that he recalled
the correct date of 29 May 2005, how the date of 29 June 2005 had
found its way into his pleadings
and if this was an error, why his
pleadings had not been amended to correct it.
39.
There are further fundamental
contradictions between Mr Matsimela's pleaded version and his version
in chief.
39.1.
A central feature of Mr Matsimela's
pleaded version was the assertion that Mr Serepong undertook to
obtain his wife's consent for
the sale of the property. Whether
because Mr Serepong failed to fulfil this
undertaking
or because Mr Matsimela decided that It could not be fulfilled is not
clear, but Mr Matsimela pleaded that he Instructed
Mr Serepong not to
proceed with the sale because the consent of his wife could not be
obtained.
39.2.
That was not Mr Matsimela's
version-in-chief. There, his evidence regarding the role that Mr
Serepong undertook to play in relation
to his wife was far more
equivocal. It was that Mr Serepong asaid he would try to speak to his
wife because he knew that the couple
were separated and not on good
terms.”
39.3.
In his evidence in chief, Mr Matsimela's
main concern regarding the sale appeared to be the purchase price of
the property which
he claimed not to have been aware of and not to
have agreed to sell at. This however, formed no part of his pleaded
version.
39.4.
Moreover, and importantly, in his
evidence-In-chief, in contrast to his pleaded version, Mr Matsimela
did not say that he had, at
any point, instructed Mr Serepong that he
no longer wished to proceed with the sale of the property.
40.
The cracks in Mr Matsimela's version
were further revealed by what was and wasn't put to the plaintiffs
witnesses by his legal representative
under cross examination.
40.1.
Thus, the Important allegations that the
property had not been valued and that Mr Serepong had not, prior to
signature of the sale
agreement, Informed Mr Matsimela,
that the market value of the
property
was R185 000.00 were never put to Mr Serepong.
40.2.
On the other hand, some of what was put
to the plaintiff's witnesses under cross examination did not
materialise in Mr Matsimela's
testimony. Thus It was put to the
plaintiffs' witnesses that Mr Matmisela would say that he Instructed
Mr Serepong not to proceed
with the sale of the property because he
could not obtain the consent of his wife. While this was Mr
Matslmela's pleaded version,
he did not give this evidence in the
witness box.
41.
T
he aspects of Mr Matsimela's version
that were put to the plaintiff's witnesses were clearly and
convincingly denied.
41.1.
Both Mr Serepong and Mr Mampuru were
adamant that they had not known that Mr Matsimela was married,if
indeed he was.
41.2.
Mr Serepong was equally adamant that he
had not requested Mr Matsimela to sign a blank agreement of sale. He
testified that such
action would have been unlawful and unethical and
that he would have been expected not only to have been reported to
the Board
of Estate Agents but to have been criminally charged had he
done such a thing. Mr Serepong was consistent and convincing in his
testimony that he met Mr Matslmela at the Shell garage in Mamelodi
East In order to hand him a copy of the signed agreement of
sale.
42.
Mr Matsimela's credibility only becomes
worse when one has regard to his version of events post 2005.
42.1.
Mr Matsimela testified that he only
became aware that the property had been transferred Into Mr Mampuru's
name when he received
the first eviction application launched by Mr
Mampuru on 14 July 2008.
42.2.
There had however, in the inteNening
period, been two registered
letters
addressed to him and two court orders granted against him. Mr
Matsimela flatly denied having received any of these.
42.3.
Yet there is a sheriffs return which
records that the court order dated 1 March 2007 was served personally
on Mr Matsimela on 21
May 2007. Mr Matsimela could not explain this.
When asked under cross examination whether the sheriff must have
taken to printing
false returns, Mr Matsimela answered yes.
42.4.
Mr Matsimela's testimony that he only
became aware of the transfer when he received the eviction
application on 14 July 2008 is
also directly contradicted by an
affidavit filed in one of the earlier eviction applications in which
he admitted having received
Mr Mampuru's registered letter of 28 May
2008.
43.
A further feature of
this matter which strains at one's credulity is Mr Matsimela's
failure to take steps in relation to what he
contends was the
fraudulent transfer of his property to a third party.
43.1.
He took no action of any kind against Mr
Serepong whom he alleges to have masterminded the fraud by having him
sign a blank agreement
of sale.
43.2.
He laid no criminal charges against Mr
Serepong or Mr Mampuru.
43.3.
He did not oppose the applications
brought to enforce the sale agreement nor, if, as was belatedly
suggested In argument, he contended
that the court orders obtained by
Mr Mampuru were
obtained
improperly, did he take any steps to have them rescinded.
43.4.
Other than a counterclaim brought on the
back of this eviction action, and belatedly at that, he took no civil
steps to recover
what he contends to be his property.
44.
In response to an invitation from the
court to explain his failure to take steps in this regard, Mr
Matsimela simply stated that
he had left the matter in the hands of
his attorneys.
45.
Finally, a note on demeanour. Mr
Matsimela's demeanour in the witness box was unimpressive. He was
noticeably tense and uncomfortable
during much
of his testimony. When faced with
difficult questions, he struggled to make eye contact and tended to
lapse into long silences.
46.
For all of the above reasons, the
evidence of Mr Matsimela was wholly unsatisfactory.
47.
The evidence of the plaintiff's
witnesses was, by contrast, impressive. They gave their evidence In a
clear and forthright manner
and their demeanour was positive. They
corroborated each other in all material respects and their evidence
was not impugned under
cross examination.
48.
During argument, Mr Molele, who appeared
for the first defendant, submitted
.
that
the plaintiff's witnesses contradicted each other In relation
to the
Insertions
that appeared in the agreement of sale at the commencement of the
meeting between Mr Mampuru and Mr Serepong on 28 June
2005.
49.
In this regard, it will be recalled that
Mr Mmpuru testified that only the purchase price had been inserted
while Mr Serepong testified
that all the applicable details of the
sale barring the personal details of the buyer and seller had been
inserted. In my view,
it is unsurprising that after the lapse of
11years, Mr Mampuru and Mr Serepong would have different
recollections of some of the
finer details. What both witnesses were
clear about was that at the commencement of that meeting the personal
details of the buyer
and seller did not appear in the agreement and
the agreement had not been signed.
50.
Further, both witnesses gave clear
testimony that at the meeting Mr Serepong took Mr Mampuru through the
agreement and Inserted
Mr Mampuru's personal details by hand and that
Mr Mampuru then Initialled and signed the agreement in Mr Serepong's
presence.
51.
I am therefore of the view that this
contradiction (the only one that Mr Molele was able to point to) is
not material and does not
detract from the quality and credibility of
the evidence led on behalf of the plaintiff.
52.
I therefore accept the version of events
presented on behalf of the plaintiff and consequently find that:
52.1.
Mr Matsimela requested Mr Serepong to
find a buyer for his property having been Informed by him that it
would fetch a market value
of R185 000.00.
52.2.
Mr Matsimela accepted Mr Mampuru's
·
written offer to purchase his property
for R185 000.00 by signing the sale agreement at his home on 29 June
2005 in Mr Serepong's
presence.
52.3.
At no stage thereafter did Mr Matsimela
cancel or purport to cancel the sale agreement. Nor did Mr Matslmela,
at any stage, inform
Mr Mampuru or Mr Serepong that he wished to
cancel the sale agreement.
53.
What remains unclear on the evidence
before me is whether Mr Matsimela was married in community of
property during 2005. If he was,
then his wife's consent was required
for the sale of the property. Such consent was, on the evidence
before me, not obtained.
54.
What remains to be determined are the
legal consequences that flow from these facts.
The
Law
55.
It Is clear, at least since the Supreme
Court of Appeal judgment in
Legator
McKenna and Another v Shea and Others
2010
(1) SA 35
(SCA), that the abstract theory of transfer applies to
immovable as well as movable property in our law.
56.
In
Legator
McKenna,
the SCA explained the
requirements for the passing of ownership in terms of the abstract
theory of transfer as follows:
"In
accordance with the abstract theory the requirements for the passing
of ownership are twofold, namely delivery - which
in the case of
Immovable property is effected by registration of transfer in the
deeds office - coupled with a so-called real agreement
or 'saaklike
ooreenkoms.' The essential elements of the real agreement are an
intention on the part of the transferor to transfer
ownership and an
i
ntention
on the part of the transferee to become the owner of the property.
Broadly stated the principles applicable to agreements
In general
also apply to real agreements. Although the abstract theory does not
require a valid underlying contract, eg sale, ownership
will not pass
-
despite registration of transfer - if there is a defect in the real
agreement.”
[2]
(references omitted)
57.
In this case, both these requirements
are in my view clearly met. There was delivery of the property in the
form of registration
of transfer in the deeds office on 6 May 2008.
There was also, on the evidence before me, an intention on the part
of Mr Matsimela
to transfer ownership of the property and an
intention on the part of Mr Mampuru to become the owner of the
property. There was
therefore a real agreement between the parties.
58.
Ms Nortje, who appeared on behalf of the
plaintiff, submitted that the requirements for the passing of
ownership in terms of the
abstract theory of transfer having been
met, ownership of the property transferred to the plaintiff on 6 May
2008 regardless of
whether there may have been any defects attaching
to the underlying agreement of sale. That submission Is well founded.
Nevertheless,
Iwillfor the purposes of this judgment assume that Mr
Matsimela was married in community of property during 2005. In this
event,
section 15(9)
of the
Matrimonial Property Act 88 of 1984
becomes relevant. This section provides as follows:
"When a
spouse enters into a transaction with a person contrary to the
provisions of subsection (2)
[3]
or (3) of this section or an order under
section 16(2)
and -
(a) That person
does not know and cannot reasonably know that the transaction is
being entered Into contrary to those provisions
or that order it is
deemed that the transaction concerned has been entered into with the
consent required In terms of the said
subsection (2) or
(3)
or while the power concerned of the spouse has not been suspended as
the case may be."
59.
In this case, the evidence clearly
demonstrates that neither Mr Mampuru nor Mr Serepong was aware that
Mr Matsimela was married
at the time that the agreement of sale was
concluded, if indeed he was.
60.
Therefore, assuming that Mr Matsimela
was married In community of property in 2005, this is a case in which
the consent of his wife
for the sale of the property would be deemed
to have been obtained in terms of
section 15(9)
of the
Matrimonial
Property Act. I
am therefore satisfied that even If Mr Matsimela
was married, ownership of the property
was validly transferred to Mr Mampuru on 6 May 2008.
61.
It
follows that the first defendant’s counter-claim is without
merit. In any event, it has prescribed.
[4]
The first defendant’s claim ought to have been brought within
three years of the registration of transfer of the property
which
took place on 6 May 2008. It was only brought on 6 December 2012,
four and a half years thereafter.
62.
The first defendant's counter-claim is
therefore dismissed.
63.
The plaintiff claims damages in the
amount of R154 803.68 which comprises the market rental in respect of
the property over the
period for which it has
been unlawfully occupied by the first
defendant as well as an amount due in respect of rates and taxes on
the property. Mr Mampuru
produced documentary poof in support of the
latter. In relation to the former, Mr Serepong confirmed that the
amount claimed constituted
the reasonable market rental In respect of
the property over the relevant period. Neither the plaintiff's
entitlement to these
amounts, nor the figures themselves were
seriously disputed by the first defendant
.
64.
In the circumstances, the plaintiff is
entitled to an eviction order and to the damages claimed. A
s
far as the eviction order is
concerned, I am required to determine a date for the eviction which
will be just and equitable in the
circumstances. The first defendant’s
occupation of the property has been unlawful since 2008 and he has
been unjustifiably
enriched by occupying the property at no cost.
Nevertheless, the first defendant's occupation has been a lengthy one
and he will
need time to find alternative accommodation for himself
,
and possibly his dependants. In the
circumstances, I am of the view
that
two months would constitute a fair notice period.
65.
I accordingly make the following order:
1.
The first and second defendants are
ordered to vacate the property being erf […], Mahube Valley,
Ext 3, Mamelodi East, within
60 days from the date of this judgment,
failing which the sheriff is authorised to carry out their eviction.
2.
The first defendant is ordered to pay to
the plaintiff the amount of R154 803.68 plus interest thereon at
15.5% per annum from the
date of this judgment to date
-
of
payment.
3.
The first defendant is ordered to pay
the plaintiff's costs.
________________________
BARNES
AJ
Appearances:
For
the Plaintiff: Adv N Nortje Instructed by Molema Mampuru Inc
For
the First Defendant: Mr S Molele of Malefo Attorneys
[1]
In respect of this action there has been compliance with section
4(2) of the PIE Act
[2]
At para 22.
[3]
Subsection (2) provides that consent is required for the alienation
of any right in immobile property forming part of the joint
estate.
[4]
A special plea of prescription was introduced by way of an amendment
which was not opposed.