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[2017] ZAGPPHC 448
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Novela v First and Others (54350/2014) [2017] ZAGPPHC 448 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 54350/2014
DATE
:
2017-03-28
Reportable:
NO
Of
interest to other judges: NO
Revised.
In
the matter between:
TINTSWALO
LIZZT
NOVELA
APPLICANT
AND
JOHANNA
HLONGWANE
FIRST
RESPONDENT
SOLOMON
MSANA MASHIANE
SECOND
RESPONDENT
THOLO
ITUMELENG
CONSTANCE
THIRD
RESPONDENT
REGISTRAR
OF DEEDA PRETORIA
FOURTH
RESPONDENT
HEARD:
25 AUGUST 2016
DELIVERED:
28 MARCH 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application in terms of which the applicant seeks an order
declaring that the second and third respondents (the respondents)
are
in breach of the deed of sale involving the sale of the immovable
property, ERF 196 Makhulo in Tembisa.
[2]
The applicant further seeks an order declaring her son to be the
beneficiary from the estate of the late, Mr Dion Hlongwnane
(the
deceased) by virtue of being his son.
[3]
The applicant seeks an order to have the registration of the above
property in the Deeds office to be declared fraudulent and
unlawful
for the reasons set out below.
[4]
The applicant instituted these proceedings on behalf of her son, as
guardian and herself in her capacity as surviving spouse
of the
deceased. She claims to have been married to the deceased in terms of
customary law.
Background
facts
[5]
The issue between the parties in this matter arose after the death of
the deceased on 3 November 2000. At the time of his death,
the
deceased's estate consisted of only one property which is the
subject-matter of the current dispute.
[6]
It is common cause that the first respondent was appointed executrix
of the deceased's estate.
[7]
The applicant instituted proceedings initially in the magistrate
court against the first respondent. She contended in those
proceedings that the first respondent was in breach of an oral
agreement in terms of which she (the first respondent) was supposed
to have paid her the amount of R22 000.00, apparently being part of
the inheritance.
[8]The
magistrate court found in her favour and ordered the first respondent
to pay the amount in question with interest and costs.
[9]The
applicant contended that before she could execute the magistrate's
court order, an oral agreement was reached between her
and the
respondents that she should not proceed with that process. The
agreement was based on the understanding that the respondents
would
buy the property for the amount of R50 000, 00 out of which the
judgment debt would be settled.
[10]The
applicant contends that despite the failure to pay the purchase price
the respondents proceeded to have the property register
in their
names. This is, as it would appear to be, the cause of action in
both' the present and the previous proceedings before
the High Court.
In the present proceedings, the applicant has added the allegation
that the respondents fraudulently registered
the property in their
names despite not having paid the full purchase price.
[11]
In the previous proceedings before the High Court the applicant
contended that:
"13.It
was agreed at this meeting that the 1st Respondent will sell the
property to the 2nd and 3rd Respondents for the amount
of R50 000,00
(sic) I will be entitled to payment of the amount of R22 000,00 plus
interest, plus costs, which amounted to R37
000,00.
14.The
1st respondent then signed the transfer documents in respect of the
property ERF 196 Makhulong Section, Tembisa transferring
the property
to the 2nd and 3rd Respondents.
15.The
2nd and 3rd Respondents, however, failed to pay the amount of R50
000, 00 as per the agreement despite the fact that
the property
was registered in the 2nd and 3rd Respondents by the 4th Respondent,
the Respondent of deeds.
16.The
conduct of 2nd and 3rd Respondents had resulted in severe prejudice
by me consequently in that I was unable to recover the
amount of
money owed to me by the 1st Respondent.
17
The 2nd and 3rd Respondents conducted breach of the sale agreement by
failing to pay the purchase price and with therefore not
entitled to
the transfer."
Preliminary
points
[12]
The respondents in opposing the applicant's application raised
preliminary points relating
res judicata,
misjoinder and
locus
standi.
The issue of
locu standi
relates to instituting
the proceedings in relation to her and her son. In relation to the
misjoinder point, the respondents contended
in this respect that the
applicant has failed to provide a basis why they were made part of
these proceedings. They contend in
this regard that the purchase
agreement of the property was with the first respondent, as the
executrix of the late estate of the
deceased. And as concerning
locus
standi
in relation to the son they contended that the applicant
failed to have a
curator ad litem
appointed to represent the
him.
[13]
In as far as the points raised by the respondents are concerned, I am
of the view that the key point upon which this matter
turns on is
res
judicata.
In this respect, the respondent contended that the
issues raised in these proceedings were adjudicated by Nkosi AJ under
case number
55459/2011. The applicant's application in those
proceedings was dismissed with costs.
Principles
governing res judicata
[14]
It is trite that the doctrine of
res judicata
is founded on
the public policy that requires finality on issues in dispute in
litigation. It is a defence for a litigant faced
with continued
litigation of the same matter, concerning same issues and involving
the same parties. The enquiry into whether the
defence of
res
judicata
is sustainable is not whether the judgment is right or
wrong but whether there is a previous judgment which concerned the
same parties
and whether the issues raised in the current litigation
were resolved in the judgment.
[15]
In my view, the applicant in the present matter in seeking to
circumvent the defence of
res judicata,
specifically as
concerning the issue of whether she qualified to inherit from the
deceased estate. She now, in what appears to be
an afterthought,
following what was raised by the respondents in their heads of
argument in the previous matter, alleges that she
was married to the
deceased in terms of customary law.
[16]
The allegation that the applicant was married to the deceased in
terms of customary marriage is not substantiated. This is
raised to
found
locus standi
of the applicant in as far as her claim to
inherit from the late estate of the deceased is concerned. The
allegation is however
not substantiated in that there is no
confirmatory affidavit nor any other documentary prove in that
regard. In any case, if indeed
the applicant was married to the
deceased as alleged, then naturally that would have been raised in
the papers in the first proceedings.
She raised those allegations in
light of the arguments which were raised by the respondents in their
heads of argument. In the
previous case, the respondents contended in
their heads of argument that although she claimed to be the
beneficiary of the late
estate of the deceased she attached the death
certificate which indicated that the deceased was not married at the
time of his
death.
[17]
It is common cause that the parties under case number 55459/2011 are
the same as those cited in the present matter. The subject
matter and
the nature of the applicant's claim in both matters are in·substance
the same. In both matters, the central issue
has to do with the same
property of the deceased. In the previous matter, the case of the
applicant was based on the alleged breach
of contract by the first
respondent.
[18[In
the present matter the applicant in her notice of motion seeks to
have the registration of the property into the names of
the
respondents declared to be fraudulent because it was registered in
their names before the full purchase price was paid.
[19]
In my view, regard being had to the totality of the facts in both
matters there is no doubt that the current matter is
res judicata.
For this reason, alone applicant's application stands to fail.
The
merits
[20]
In my view, the case of the applicant would stand to fail even if the
above conclusion was, for whatever reason, to be found
to be wrong.
The case of the applicant stands to fail also on the basis of the
dispute of facts. In this respect, as alluded to
earlier, the case of
the applicant is that the respondents were not entitled to have the
property register in their names because
they,at the time it was
registered in their names failed to pay the purchase price in full.
[21]The
respondents, on the other hand, contended that they had paid the
purchase price in full at the time they took ownership
of the
property in the form of having registered in their names.
[22]
It is thus clear from the above that there is a dispute of fact,
which in my view, is genuine and ought to have been foreseen
by the
applicant. Considering the facts contained in the applicant's
affidavit which are admitted by the respondent, and in applying
the
rule in Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[1]
I am bound to accept the version of the respondents which means
applicant's case stands to fail. In fact, the version of the
respondents
that, they had already paid the full purchase price at
the time the property was registered in their names. is supported by
what
is stated by the applicant in her founding affidavit in the
earlier case which was heard under case number 55459/2011. In the
present
matter, she stated in her founding affidavit that she
obtained the information about the sale of the property in the amount
of
R50 000, 00 from the first respondent's daughter. In the same
breath, she stated that she was aware of the sale property.
[23]
As alluded to earlier the applicant's application stands to fail. I
agree with the respondents that on the facts and circumstances
of
this case costs should be awarded on a punitive scale.
Order
[24]
In the premises the applicant's application is dismissed with costs
on attorney and own client scale.
E
Molahlehi
Judge
of the High Court:
Johannesburg.
APPEARANCE:
APPLICANT:
Botha Massyn & Thobejane Associated Attorneys.
RESPONDENT:
Maile & Associates Attorneys.
1984(3) SA 623
(AD)[1]