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[2016] ZAGPPHC 14
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Mahlangu v Mahlangu and Others (19060/2015) [2016] ZAGPPHC 14 (15 January 2016)
SAFLII
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Certain
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
15/01/2016
CASE
NUMBER: 19060/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ELIAS
MAHLANGU APPLICANT
And
WINSTON
MANDLA
MAHLANGU FIRST
RESPONDENT
MOJUDA
JUDAS
MOHLALA SECOND
RESPONDENT
THE
REGISTRAR OF DEEDS,
NELSPRUIT THIRD
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND
REFORM FOURTH
RESPONDENT
NEDBANK FIFTH
RESPONDENT
JUDGMENT
MAVUNDLA
J
[1]
The applicant approached this Court seeking an order in terms
of which it be declared that the applicant
is the
rightful and sole registered owner of immovable
property
described as Erf […], Enkangala-B, Mpumalanga, held by Deed of
Grant No TG339
I
1995KD, in extent 321 (three two one) square
metres ("the property"); cancelation of the
registration of the said
property in the name of the first and
second respondent and directing the fourth respondent to amend its
Deed Registry to
give effect of the above order and reflect the
applicant as the sole registered owner of the property in terms of
Deed of Grant
No TG339 / 1995KD, with a costs on attorney and client
own scale only in the event of opposition.
[2]
It is common cause that certain immovable property known as site No
4536 "B" measuring 321 square meters situated
at
Kwa-Mhlanga in the erstwhile KwaNdebele Government Services
was registered in the names of three different
people and a
title
deeds in that regard were duly registered as follow:
[1]
2.1. Mahlangu Winston
Mandia title deed TG403/1991KD registration date 27/06 /1991 (the
first respondent) who did not opposed the
application;
2.2. Mohlala Mojuda Juda,
Title Deed TG554/1994KD registration date 07/04
I
1994, (the
second respondent who opposed the application;
2.3. Mahlangu Elias Title
Deed Office property: Erf Kungwini Title deed TG339/1995KD
registration date 25 / 05 / 1995, in the name
of Mahlangu Elias, the
applicant
in casu.
[3]
According to the applicant, he purchased the aforesaid property for
an amount of R1203.00. He subsequently obtained a loan in
the amount
of R92 000. 00 from the fifth respondent and caused a mortgage bond
to be registered for the said amount in favour of
the fifth
respondent on the 29 June 1995. He built a house on the said property
and upon its completion moved therein together
with his family at the
end of 1995 and still continues to reside therein. He has attached
copy of a photograph showing a brick
built house with tile roof and a
garage attached to the house. He and his family have been residing in
this house for over 20 years.
He further contended that he is 51
years old and would be severely prejudiced were he and his family to
be called to vacate the
property because he would have no means to
start de nova to build another property at his age.
[4]
According to the applicant the second respondent did inform him that
he is the owner of the property but suggested that he would
sell
stand to him on exchange of payment of money. The applicant refused
this overture by the second respondent because he had
a title deed in
respect of the stand and deemed it not necessary to pay for it for
the second time.
[5]
The second respondent filed his answering affidavit resisting the
grant of the orders sought by the applicant. He conceded that
he did
not take any legal steps to resolve the debacle of the registration
of the property in his names and the appellant. He further
averred
that the KwaNdebele Government had no right to have the property
registered in the name of the applicant because it was
already
registered in his name and he never sold the property to any person
after he purchased it. He alleged that the registration
of the
property in the names of the applicant was done fraudulently. I must
hasten to state that there was no foundation laid for
this statement.
Besides, this Court is not engaged with the underlying cause of the
double or triple transfer;
vide Prophitius
&
Another v
Campbell
&
Others,
2008 (3) SA 553
D&CLD at 558
paras [35]-[36]. The second respondent conceded that he approached
the applicant before the latter completed building
the house, but
averred that the latter ignored his advice that he was the owner of
the property. He further contended that the
applicant is the
architect of his misfortune because he improved the property against
advice that the property was registered in
the name of the second
respondent. The latter further contended in his papers that applicant
has an alternative relief which is
to seek from the third respondent
to rectify its documents by removing the names of the applicant who
can then seek damages. Needless
to state that the KwaNdebele
Government is no longer in existence and therefore there is no merit
in this proposition by the second
respondent. The second respondent
further contended that the principle of
"quo prior est
tempore potior est jure'
must be strictly applied against the
applicant.
[6]
Counsel for the second respondent in his heads of argument raised as
a
point in limine
that there was a dispute of fact which could
not be resolved on affidavit and that the application should
therefore be dismissed.
There is in my view, no real dispute of facts
and therefore I need not entertain this issue beyond stating that
there is no merit
in this contention.
[7]
The issue to be decided in this matter is the question of strict
application of the maxim
"quo prior est tempore potior est
jure"
(the priority rule).
[8]
The effect of the maxim
"quo prior est
tempore potior est jure"
would be that the
first respondent being the person in whose name the relevant
property was first registered, the property
would then have to go to
him, with the second and third respondents falling by the way side.
It needs to be borne in mind that
the first respondent decided not to
lock horns in this matter. It can be safely accepted that he would
abide by the Court's decision.
[9]
Generally, in a situation of double sale, such as
in casu,
the
maxim
"quo prior est tempore potior est jure",
also known as doctrine of notice, prevails. The
effect thereof is that the first person in whose name the property
was transferred, enjoys stronger rights to claim the property;
vide
Bowring NO v Vrededorp Properties CC and Another
2007 (5) SA 391
(SCA) at 395G-I.
This maxim is premised on logic and equity.
In casu,
the applicant must show
special circumstanced which militate against a
strict application of
the maxim. He must satisfy the Court that there
are special circumstances which sway the balance of equity and
reasonableness in
his favour warranting a departure from a strict
application of the maxim,
vide Wahloo Sand v Trustees, Hambly
Parker Trust
2002 (2) SA
776
(SCA) at 784 F-G.
[10]
In casu,
the first respondent, in whose name the
property was first transferred, chose not to lock horns
with the applicant.
Both the first and second respondents for the
past 20 (twenty) years, chose not to take any steps to assert their
respective rights
over the property. They both implicitly acquiesced
with the
status quo,
namely that the applicant is in
occupation of and a title holder of the property.
[11]
The improvements effected on the house by the applicant are
extensive. The applicant not only occupies the property alone
but with his family. The duration of the applicant's occupancy of the
property together with his family extends well over
a
period of twenty years. The applicant's right to housing is
constitutionally enshrined.
[2]
[12]
Within the right to housing, lies
inter
alia,
the
right to dignity, the right to security, and the
attenuation of these rightS
[3]
.
The dictate of justice and equity, which
demands the balancing of the competing rights of the applicant
and
those of the first and second respondents, when one considers the
factors mentioned in the preceding paragraph,
tilt
the scale in favour of the applicant and against the first and second
respondents. There would be more suffering and prejudice
caused to
the applicant was this Court to find, in the circumstances of this
case, for a strict application of the maxim
"quo
prior est tempore potior est jure".
I
also take into account the fact that the first respondent, so too the
second respondent, deliberately chose not to enforce their
respective
claims to the property over a long period.
[13]
In the result, I am of the view that the applicant has marshalled
enough facts which persuade this Court, in the exercise of
its
discretion, to order that the relevant property must resort with the
a pplicant and that he is entitled to the order sought.
[14]
It is trite that costs follow the event. The first respondent did not
oppose the application. He is the first person in whose
name the
property was registered in 27/06 /1991. On the principle of the maxim
"quo prior est tempore potior est ju re",
he would have
been the person to demand that the property should remain registered
in his name. He however decided not to oppose
the application and
therefore there is no need to mulct him with a costs order.
[15]
The second respondent was the second person in whose name the
property was registered in 07
I
04
I
1994, after it had
already been registered in the names of the first respondent. On the
maxim
"quo prior est tempore potior est jure",
the
second respondent was not better off than the applicant, in relation
to the first respondent who was the first to have the property
registered in his name. The second respondent's insistence that the
property should remain registered in his name was purely
opportunistic
and unreasonable. He was forewarned that an
attorney and client costs order will be sought against
whosoever opposes
the application. In my view, it was unreasonable of
him to oppose the application. In my view he should therefore be
mulcted with
costs on attorney and client scale as prayed for by the
applicant.
[16]
In the result the following order is made:
1. That, it is declared
that the applicant is the rightful owner of the immovable property
described as Erf […], Enkangala-B,
Mpumalanga, held by Deed of
Grant No TG339 / 1995KD, in extent 321 (three two one) square metres
("the property");
2. That, the registered
ownership of the first and second respondents in relation to the
property is hereby cancelled;
3. That, the fourth
respondent is directed to amend the records in the Deeds Registry to
give effect to the orders in order 1and
2 above, in particular, so
that the records reflect that the applicant is the sole registered
owner of the property in terms of
the Deed of Grant No TG339
I
1995KD, duly registered on 25 May 1995 and expunging from the
records of the Deeds Registry any reference to the first and second
respondents as the registered owners;
4. That, the second
respondent pays the applicant's costs on attorney and client scale.
__________________
N:M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 04/12 /2015
DATE
OF JUDGMENT: 15
I
01/2016
APPLICANTS'
ADV: ADV J. EASTES
INSTRUCTED
BY: GEO KILLIAN ATTORNEYS
SECOND
RESPONDENTS' ADV: ADV R.G. MASIPA
INSTRUCTED
BY: SHAPIRO & LEDWABA INC
[1]
Annexure "E2" reflects the registration of the relevant
title deeds of the relevant persons.
[2]
Section 26 of the Constitution of the Republic of South Africa, Act
108 of1996 which provides as follows: "Housing---(1)
Everyone
has the right to have access to adequate housing.
(2)
The State must take reasonable legislative and other measures,
within available resources, to achieve the progressive realisation
of this right.
(3)
No one may be evicted from their home, or have their home
demolished, without an order of court made
after
considering all the relevant circumstances. No legislation may
permit arbitrary evictions.
[3]
Vide Motswagae v Rustenburg Local Municipality
2013 (2) SA 613
(CC)
at 617 B-C.