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[2017] ZAFSHC 33
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Tsukudu N.O. v Tlhopane and Another (2257/2016) [2017] ZAFSHC 33 (9 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2257/2016
In
the matter between:
KHANTSE
ANNA TSUKUDU N.O
and
THABO
JAPHTA TLHOPANE
1
st
Respondent
MATLALINYANE
LUCIA SEFALI
2
nd
Respondent
CORAM:
NICHOLSON, AJ
HEARD
ON:
2 MARCH 2017
JUDGMENT
BY:
NICHOLSON,
AJ
DELIVERED
ON:
9
MARCH 2017
[1]
This is an opposed application and counterclaim relating to competing
claims for transfer of an immovable property situated
within the
jurisdiction of this honorable court.
[2]
The applicant in this matter is the Executrix in the Estate Late Mary
Mamorolong Tsukudu. (The deceased) who died on 29 July
2014.
[3]
The deceased entered into a deed of sale with the 1
st
Respondent on 27 May 1994 in respect of the property situated at Erf
[....] Puthaditjhaba-A (the property). It is common cause
that this
deed of sale still subsists.
[4]
The Applicant resold the property to the second Respondent in terms
of a Deed of Sale dated 11 March 2015, a deed of sale she
has
attempted to substitute with a document dated 2 April 2015.
[5]
As a consequence of this second deed of sale, Applicant became aware
of the 1
st
Respondent’s claim to the property and this matter arose with
regards to the competing personal rights of the 1
st
and 2
nd
Respondents to claim transfer of the property.
[6]
There are some questions associated with the validity of the Deed of
Sale to the 2
nd
Respondent as the document initially submitted to the Court was not
signed by both parties and the court initially refused to allow
the
document to be substituted by the document dated 2 April 2015.
Despite this refusal, and after Respondent’s successful
request
for a postponement to submit a supplementary affidavit relating to
Applicant’s attempt to enter the Contract into
evidence, the
Applicant has slipped the document into the court papers as an
attachment to her response to the supplementary affidavit.
[7]
The property was sold to the 1
st
Respondent for a purchase price of R 38 000.00, which purchase
price Applicant alleges was never paid in full.
Transfer
of the property to the 1
st
Respondent was to take place on
payment of the full purchase price. Transfer costs to be borne by the
purchaser.
[8]
Applicant asserts that an amount of R 5 200.00 remains
outstanding on the purchase price and thus the property was never
transferred to the 1
st
Respondent. Applicant alleges that the failure of the 1
st
Respondent to pay the purchase price in full was communicated to her
and other family members by the deceased on numerous occasions
over a
period of approximately 15 years before her death.
[9]
The court was asked to accept the hearsay evidence on the basis that
the deceased is unable to testify, the evidence has probative
value
and cannot be viewed as prejudicial. Applicant therefore
asserts that the evidence should be admitted in the interests
of
justice.
[10]
Having considered the authority to which the Court was referred
by Applicant (the Law of Evidence Amendment Act (45 of
1988 s3(1);
McDonald’s
Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and another;
McDonald’s Corporation v Dax Prop CC
and another; McDonald’s
Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Dax Prop
CC
[1996]
ZASCA 82
;
1997 (1) SA 1
(A);
[1996] 4All Sa 1
(A)
;
Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting
2002
(3) SA 765
(T)), the court concluded that the probative value
of the information is questionable in that the Applicant’s
documentation
before the court brings her general reliability into
question. Had deceased made these statements to numerous family
members
it would have been a simple matter to obtain a supporting
affidavit from one or more family member to this effect.
Furthermore,
Applicant has had to substitute the Letters of
Executorship submitted as part of her papers as well as the contract
between herself
and the 2
nd
Respondent that is the basis for this application. Further, the other
evidence before the court does not support the alleged content
of the
hearsay evidence. In particular, the objective fact that the 1
st
Respondent is possessed of the Deed of Grant, which document was only
to pass to him on payment of the purchase price, flies directly
in
the face of the hearsay evidence being offered. For these reasons,
the court finds that it is not in the interests of justice
to admit
the hearsay evidence. The admission of the Hearsay would in any event
not have had an impact on the finding of the court
given that it’s
effect would in any event have been countered by the other evidence
before the court.(
Makhatini
v Road Accident Fund
(2002 (1) SA 511
(SCA) per Navsa J)
[11]
In terms of the Deed of Sale between the deceased and the1st
Respondent, the Deed of Grant to the property would be delivered
to
the 1
st
Respondent on payment of the full purchase price. The Deed of Grant
is in his possession and is
prima
facie
proof that the full purchase price was paid.
[12]
The Court thus accepts that on a balance of probabilities, the 1
st
Respondent did indeed pay the full purchase price and was thus
entitled to take transfer of the property.
[13]
The issue thus squarely before the court is that, if both Deeds of
Sale are valid, 1
st
and 2
nd
Respondent’s personal rights to transfer of the property
compete and it falls to the court to determine to which of the two
Respondents transfer should be effected. The Applicant asserts
that the 2
nd
Respondent should receive transfer. The basis for this
assertion is that this is the most just and equitable solution to
the
conundrum.
[14]
In making this assertion, the Applicant drew the court’s
attention to authority regarding the application of the maxim,
Qui
prior est tempore potior est jure
,
the first in time is first in law. (
Ingledew
v Theodosiou and another
[2006] JOL 18296
(W);
[2006] ZAGPHC 62
;
Bekker
v Schmidt Bou Ontwikkelings CC and others
[2007] 4 All SA 1231
(C);
2007 (1) SA 600
(C);
Vlok
v Silver Crest Trading 154 (Pty) Ltd and others
[2013] ZAFSHC 218
;
Standard
Bank of SA Ltd v Petrus Jacobus Koekemoer
case [2012] ZAGPPHC 300; and
Wahloo
Sand BK en andere v Trustees of the Hambly Parker Trust, en
andere
2[2001]
ZASCA 137;
2002 (2) SA 776
(SCA)) Applicant argued that these cases
are authority for the view that the maxim need not be applied in
every instance and that
it should only be applied where it is just
and equitable to do so.
[15]
The court was not convinced that it would be more equitable to
transfer the property to the 2nd Respondent than to the 1st.
The contention that the 1st Respondent does not deserve to take
transfer as his behavior in putting the Deed of Grant in his cupboard
for 20 years and not proceeding to take transfer of the property
disqualifies him is not sound in law. The Applicant’s argument
seems to be based on her outrage at this failure of the 1
st
Respondent to complete the formalities with regards to the property.
How it could be just or equitable to deny transfer to
a buyer who
paid the full purchase price many years ago and who has been using
the property as an owner without challenge for in
excess of twenty
years is a puzzle to the court.
[16]
Finally, the Applicant argues that the 1st Respondent’s claim
for transfer of the property has prescribed in terms of
the
Prescription Act (68 of 1969). Again, the Applicant offers extensive
cases authority in this regard. (
Leviton
and Son v De Klerk’s Trustees
1914 CPD 685
;
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A);
Oertel
en andere NNO v Direkteur van Plaaslike Bestuur en andere
1983 (1) SA 354
(A);
Desai
NO v Desai and others
[1995] ZASCA 113
;
1996 (1) SA 141
(A;)
Makate
v Vodacom (Pty) Ltd
2016 (4) SA 121
(CC);
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and others
(CCT
232/15)
[2016] ZACC 49)
This case law is authority for the contention
that an obligation to effect transfer of property constitutes a debt
that is capable
of extinction through prescription as envisaged by
the Prescription Act.
[17]
The 1
st
Respondent acknowledged in argument, the view that an obligation to
transfer immovable property constitutes a debt in accordance
with
Desai
(supra)
and offered further authority for this in the form of
eThekwini
Municipality v Mounthaven (Pty) Ltd
([2015]
ZAKZDHC 78)
.
It was
argued for the 1
st
Respondent that,
Fegen
and Another v Mphkathi
([2013] ZASCA 100) is authority for the view tendered by the 1
st
Respondent that prescription can be interrupted by an express or
tacit acknowledgement of the indebtedness. It is asserted
that
the Applicant’s repeated offers to transfer the property to 1
st
Respondent on production of proof of payment of the purchase price
constitutes such an acknowledgement, alternatively, a renunciation
of
the benefits of Prescription.
[18]
The court was referred to
Brown
v Courier
(1963 (3) SA 325
(N)) and
Lindhorst
v Andersen
([2006] ZAECHC 70) as regards renunciation.
As
in
Lindhorst
, the 1
st
Respondent has been allowed
to believe and act as if he is the owner of the property. He
has leased the property out for
over 20 years without any challenge.
This is a tacit acknowledgement of the debt. Furthermore, the
Applicant’s persistent
assertions, including in her founding
affidavit, that she would transfer the property to the 1
st
Respondent on production of proof of payment amounts to a
renunciation of the benefits of prescription.
[19]
The facts of this case unequivocally support the assertion that the
Applicant renounced the benefits of prescription and 1
st
Respondent may seek transfer of the property.
[20]
Applicant has requested that should the court find for the 1
st
Respondent that the deceased estate should not be burdened with the
costs of the application or the counterclaim as it is a small
estate
with few resources. The Court can find no merit in this
argument and finds it somewhat disingenuous for the Applicant
to
assume that the 1
st
Respondent is better situated to absorb the costs of a legal process
that was initiated by the Applicant and persisted in by her
even
after proof of payment had been presented in the form of the Deed of
Grant being in 1
st
Respondent’s possession.
[21]
In conclusion, the Applicant also drew to the court’s attention
its obligation to infuse the law of contract with the
values and
principles of the Constitution (108 of 1996) as required in
Everfresh
Market Virginia (Pty) Limited v Shoprite Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(cc); 2012 (#) BCLR 219 (CC)).
[22]
First Respondent instituted a counterclaim for transfer of the
property to him and for facilitation of said transfer. He also
claimed legal costs. He presented argument for a punitive costs
order against the Applicant in her personal capacity as well
as in
her capacity as Executrix of the deceased estate, on the basis that
she had persisted in the matter in bad faith. The
Court
considered this argument but determined that the Applicant did not
act in bad faith in bringing this application. This
is a
complex legal situation that benefits from clarification by the
court.
[23]
After consideration of the papers submitted to the court and on
hearing of argument in this matter, the court makes the following
order:
1.
The
Applicant’s application is dismissed.
2.
The
Applicant is ordered to transfer the property (Erf [....]
Phuthadithaba-A) to the 1
st
Respondent within 90 days of this order.
3.
Should the
Applicant fail to sign the transfer documents for any reason, the
Sheriff of the High Court, Harrismith, is authorized
to sign the
transfer documents on behalf of the Applicant.
4.
A.V. Theron
and Swanepoel Attorneys are instructed to attend to the registration
of transfer of the property in the 1
st
Respondent’s name.
5.
1
st
Respondent is liable for all reasonable costs, including clearance
figures, transfer duty, transfer costs and other costs incidental
to
registration of transfer.
6.
As 1
st
Respondent is in possession of the property and has been for in
excess of 20 years, the Applicant is not required to supply him
with
a valid Electrical Certificate in terms of the schedule to the
Machinery and Occupational Safety Act.
7.
Applicant
to pay the costs of the application and counterclaim on a party and
party scale.
________________
C.
NICHOLSON, AJ
On
behalf of applicant:
Mr D Molepo
Instructed
by:
Edward Nathan Sonnenbergs
150
West Street
Sandton
Johannesburg
On
behalf of 1
st
& 2
nd
respondents:
Adv. Pienaar
Instructed
by:
Lovius Block Attorneys
31
First Avenue
Westdene
Bloemfontein