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[2016] ZAKZPHC 13
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Ngubo N.O v Ndlovu and Another (3425/2012) [2016] ZAKZPHC 13 (19 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3425/2012
DATE:
19 FEBRUARY 2016
Not
Reportable
In
the matter between:
GLADYS
PHINDILE NGUBO
NO
.........................................................................................
Applicant
And
ALLISON
MUSA
NDLOVU
.................................................................................................
Respondent
ITHALA
DEVELOPMENT CORPORATION
LTD
...............................................
Intervening
Party
Coram:
Gorven J
Heard
:
15 February 2016
Delivered:
19 February 2016
ORDER
The
application is dismissed with costs on the scale as between attorney
and client.
JUDGMENT
Gorven
J:
[1]
This application relates to property
described as ‘Remainder Zwartkop Location 4669 situated in the
District of Vulindlela’
(the property). The property is a
trading allotment and is registered in the name of the Ingonyama
Trust (the Trust). The Trust
is established and empowered by the
KwaZulu-Natal Ingonyama Trust Act 3KZ of 1994 (the Act). It operates
through a Board. At least
some of the land registered in its name is
occupied by virtue of documents described as Permissions To Occupy
(PTOs).
[2]
It is common cause that the respondent was
granted a PTO in 1983 in respect of the property. The permission
given was to trade on
the allotment by way of a weaving factory and
shoe shop. It is the applicant’s case that this PTO has been
transferred to
the applicant. Based on this contention, the applicant
approached this court on 26 April 2012, by way of an urgent
application,
without notice to the respondent, and obtained the
following relief:
‘
1.
That a
rule nisi
do hereby issue calling upon the Respondent to show cause, if any,
before this Court on the 22
nd
day of May 2012 at 09h30 or so soon thereafter as Counsel may be
heard as to why an order should not be made in the following terms:
1.1
That the Respondent be interdicted and
restrained from entering and occupying the property . . .
1.2
That the Applicant is entitled to the
right, title and interest in and to the permission to occupy in
respect of the property.
1.3
That the order for eviction granted by the
Magistrates’ Court, Pietermaritzburg under case number 11902/11
be stayed until
final determination of this matter.
1.4
That the Respondent pay the costs of this
application on an Attorney and own client scale.
2
That paragraph 1.1, 1.2 and 1.3 hereof
shall serve as interim relief pending the finalisation of this
application.’
[3]
At that stage the applicant was Mikion
Thembatutu Ngubo. After this order was granted, the applicant died.
The present nominal applicant,
who is his executrix and widow to whom
he was married in community of property, was substituted as a result.
When reference is
made in this judgment to the applicant, that
reference is to Mikion Thembatutu Ngubo unless the context makes it
clear that the
nominal applicant is referred to. The respondent put
up an answering affidavit after the nominal applicant was
substituted. Approximately
a year thereafter, the intervening party
sought and was granted permission to intervene and supported the
applicant. The respondent
answered the intervening party’s
affidavit and neither the applicant nor the intervening party
delivered a replying affidavit.
[4]
The
applicant seeks confirmation of the
rule
nisi
granted in paragraphs 1.1, 1.2 and 1.4. Paragraph 1.1 relates to
interdictory relief. The other relief flows from that. It is trite
that an applicant for a final interdict must prove a ‘clear
right, injury actually committed or reasonably apprehended, and
the
absence of any other ordinary remedy’ available to the
applicant.
[1]
In the present
matter, it is the clear right which is in issue. The clear right
resolves itself into whether the applicant or the
respondent is the
present holder of a PTO in relation to the property.
[5]
The
case which the applicant seeks to make out in its founding affidavit
is extremely unclear. The notion of ownership of the property
and the
right to occupy at are used interchangeably. Put at its clearest, the
averments of the applicant can be summarised as follows.
The
intervening party lent and advanced money to the respondent. As
security for this indebtedness, the respondent ceded its right,
title
and interest in and to the PTO to the intervening party. The
intervening party obtained default judgment against the respondent
in
respect of the loan on 25 September 2001. The right, title and
interest in and to the PTO was attached and sold in execution
to the
intervening party on 3 March 2004. Pursuant to the sale in execution,
the right, title and interest in and to the PTO was
transferred to
the intervening party in March 2004. The intervening party sold the
right, title and interest in and to the PTO
to the joint estate of
the deceased and the applicant along with one Steven Thembinkosi
Ngubo by virtue of a written sale agreement
concluded on 1 September
2004.
[2]
The applicant and his
family took occupation of the property in June 2004 pursuant to the
agreement. The respondent launched an
application for the applicant’s
eviction from the property on 2 September 2011. After delivering a
notice of intention to
oppose the application, the applicant did not
put up an answering affidavit and his attorney did not appear on the
adjourned date.
As a result, an order for his eviction was granted on
21 October 2011 in his absence. On 4 January 2012, the Magistrates’
Court stayed the order for eviction. He brought an application for
rescission of the order which application was pending before
the
Magistrates’ Court at the time this application was launched in
April 2012.
[6]
Much of this version is disputed by the
respondent. He admits having taken a loan from the intervening party,
not having met the
instalments due under it and that default judgment
was taken against him by the intervening party. In the first place,
however,
he contends that the purported cession of his right, title
and interest in and to the PTO is invalid.
The
schedule to the PTO was put up by the intervening party. This
contains conditions to which the PTO is subject. Paragraph 3 of
the
conditions reads as follows:
‘
The
rights of the holder in or to the allotment or any improvements
thereon shall not be transferred, mortgaged, ceded, leased,
sublet or
otherwise disposed of except in accordance with such prior approval,
in writing, and in such manner as is or may be lawfully
prescribed.’
It
is common cause that, at the time the cession was said to have been
executed, no prior written permission had been obtained.
The
respondent also submits that, at the time the application was
launched, no evidence was put up of the prior written consent
having
been given to the transfer of the PTO to the intervening party let
alone to the applicant.
[7]
Secondly, he contends that the intervening
party was not entitled to execute against his right, title and
interest in and to the
PTO. He relies for this submission on
paragraph 5 of the conditions to which the PTO is subject. This
provides:
‘
The
rights of the holder in or to an allotment shall not be liable to
execution for any debt other than a debt due under a duly
registered
mortgage bond or a debt due to the South African Development Trust or
other statutory body which has been granted administrative
control of
the land.’
It
is common cause that the intervening party is not ‘a statutory
body which has been granted administrative control of the
land’.
Nor does it claim to be one. I shall return to these points later.
[8]
Thirdly, the respondent contends that the
intervening party is not capable of possessing the right, title and
interest in and to
the PTO. He makes the point that the Act requires
the Trust to administer land registered in its name ‘for the
benefit, material
welfare and social well-being of the tribes and
communities . . . and the residents’
referred to in the
schedule to the Act. The intervening party, as a
juristic person, is not a member of any of those tribes or
communities and cannot
be said to be such a resident. I do not regard
it as necessary to decide this point.
[9]
What the applicant does not disclose in the
founding affidavit is that, after the order for his eviction was
granted, he concluded
what was termed a settlement agreement with the
respondent. This much is common cause. The respondent submits that
this was a material
non-disclosure warranting the dismissal of the
application on this ground alone.
[10]
The respondent’s version of how the
settlement agreement was concluded is uncontested. On 5 December
2011, the sheriff went
to the property to evict the occupants. As a
result, that day the applicant went to the offices of the
respondent’s attorney.
The attorney informed the applicant that
he was not able to discuss the matter with him since he was
represented by a firm of attorneys.
The applicant’s response
was that he had terminated the mandate of his attorney. He stated
that he wanted to settle the matter
himself. The respondent’s
attorney asked the applicant to accompany him to the High Court where
he had matters to attend
to. On their arrival, the respondent’s
attorney contacted the respondent and asked him to meet him at the
High Court. The
respondent’s attorney requested an advocate
from the Pietermaritzburg Justice Centre to join them so that the
applicant could
repeat his statement that he had dispensed with the
assistance of his attorney and wished to act for himself, which he
confirmed
in the presence of that advocate. The applicant said that
he agreed to vacate the property but just wished to be allowed time
in
which to arrange this because his wife (the present nominal
applicant) had recently given birth to a child. He also indicated
that
he had had enough as regards the property and wanted to settle
the matter directly with the respondent and intended taking action
against the intervening party. The attorney of the respondent then
reduced the settlement to writing after which both the applicant
and
the respondent signed it in the presence of other witnesses. The
agreement reads as follows:
‘
Agreement
between AM Ndlovu and T Ngubo
1
A meeting was held between the parties on 5
December 2011 at the High Court, Pietermaritzburg.
2
The parties AM Ndlovu and T Ngubo have
agreed that:
2.1
The ejectment of T Ngubo by the sheriff
under case No. 11902/11 is stayed.
2.2
T Ngubo agrees to vacate the immovable
property … on or before 5 January 2012.
2.3
T Ngubo agrees to pay the legal costs
incurred as taxed or agreed.
3
T Ngubo confirms that the mandate he gave
to his attorneys Ngcobo, Poyo has been withdrawn and he has entered
into this agreement
freely and voluntarily.’
[11]
An application to rescind the eviction
order was served on the respondent’s attorney the day the
settlement agreement was
concluded. Since this had been issued on
29 November 2011, the respondent and his attorney assumed that
this was being served
by the erstwhile attorneys of the applicant
without knowledge of the settlement agreement. The rescission
application was set down
for hearing on 4 January 2012 and the
respondent’s attorney undertook to attend court that day to
ensure that the matter
was struck off the roll, removed from the roll
or withdrawn. On that day, the respondent’s attorney went to
the Magistrates’
Court and encountered an attorney representing
the applicant. He brought the settlement agreement to the notice of
that attorney
but was told that he was instructed by the applicant
that the respondent’s attorney had forced him to sign the
settlement
agreement and that he had signed it under duress. The
facts concerning the settlement agreement were put up in an affidavit
opposing
the rescission application. The respondent was ultimately
advised to consent to the rescission application since the eviction
order
had been made in the absence of the applicant and it was felt
likely that the court would rescind the order. As I have said, none
of this version of events was contested by the applicant in the
papers before me.
[12]
Before
me, the applicant sought to argue that the settlement agreement had
fallen away as a result of the order rescinding the eviction
order.
This, it was submitted, is why no mention was made of it in the
papers of the applicant. This argument simply does not wash.
What the
applicant did is to repudiate the settlement agreement by refusing to
perform his part of the bargain. A spurious ground
of duress was
raised. It was not submitted before me that the settlement agreement
was vitiated by duress. Even if this was alleged
in the papers, the
test for setting aside an agreement on that basis is a stringent one
and was summarised by Corbett J, in
Arend
& another v Astra Furnishers (Pty) Ltd
,
[3]
as follows:
‘
Where
a person seeks to set aside a contract, or resist the enforcement of
a contract, on the ground of duress based upon fear,
the following
elements must be established:
(i) The
fear must be a reasonable one.
(ii) It
must be caused by the threat of some considerable evil to the
person concerned or his family.
(iii) It
must be the threat of an imminent or inevitable evil.
(iv) The
threat or intimidation must be unlawful or
contra
bonos mores
.
(v) The
moral pressure used must have caused damage.’
Even
taking what was communicated to the respondent’s attorney on 4
January 2012 at face value, this case is not made out.
However, this
version is not even before me because the applicant has not dealt at
all with the settlement agreement. The respondent
is clearly entitled
to rely on the undertaking in the settlement agreement to vacate the
propety, regardless of the outcome of
the eviction application or its
rescission.
[13]
The
consequence of the failure of the applicant to bring the existence of
the settlement agreement and the facts surrounding it
to the
attention of the Judge who heard the application for interim relief
must be evaluated. In the matter of
Estate
Logie v Priest
,
[4]
Solomon
JA said the following:
‘
It
cannot, I think, be too strongly insisted upon that in
ex
parte
applications it is the duty of
the applicant to lay all the relevant facts before the Court, so that
it may have full knowledge
of the circumstances of the case before
making its order.’
If
these facts might have influenced the decision of the Judge who made
the order, a court has a discretion to set the order aside
on the
ground of non-disclosure. This is so even if the non-disclosure was
not
mala
fide
or wilful but only negligent.
[5]
I have little doubt that if the applicant had disclosed the
settlement agreement, no interim relief would have been granted. This
is because, in the settlement agreement, the applicant relinquished
any right to occupy that he might have had at the time, barely
four
months before approaching this court by way of this application.
Further, it is clear that the applicant instructed his attorney
to
apply on 4 January 2012 for the rescission of the eviction order.
This was a day before he had agreed to vacate. He did not
inform that
court of the settlement agreement either. On the probabilities he
sought that order so as to avoid his obligation to
vacate the
following day. When the rescission application was not finalised on
that date, he repudiated the agreement by refusing
to vacate the
property on 5 January 2012. In the absence of any explanation by the
applicant for this conduct, it seems to me that
the most probable
inference to draw is that he signed the settlement agreement so as to
buy time to remain in occupation, knowing
(and not disclosing to the
respondent or his attorney) that he had launched an application for
rescission. In my view, the failure
to disclose these facts or,
indeed, to deal with them when raised in this application, warrants
the dismissal of the application.
It also warrants a punitive costs
order against him.
[14]
In
case I am wrong in this, it is as well to deal with the merits of the
case advanced by the applicant. It is first necessary to
dispose of a
further basis for the relief sought which was raised only in
argument. It was submitted that the respondent left the
property in
1990 and thus abandoned his right, title and interest in and to the
PTO. No factual foundation was laid for this submission.
Nor was even
an assertion made in his affidavit to this effect. It is trite law
that an applicant’s case must be made out
in the founding
papers. The affidavit of the intervening party was also silent in
this regard and no facts were set out in it which
could lead to such
an inference. In any event, the respondent gave clear evidence as to
why he ceased occupying the property. He
feared for his life during
civil unrest. The applicant subsequently told him that Inkosi Zondi
had allocated the property to him.
He feared confronting a
traditional leader who purported to deal with the property without
any lawful basis until he launched the
eviction application mentioned
above. This evidence of the respondent is not so untenable that it
can be rejected out of hand.
Even if there were a factual dispute in
this regard, and there is not, it could not be resolved in favour of
the applicant or intervening
party except by way of oral evidence.
Since the applicant and the intervening party sought to argue the
matter on the papers, the
version of the respondent would in any
event prevail.
[6]
There is
therefore no basis on which to uphold this submission.
[15]
The affidavit of the intervening party sets
out to support the relief sought by the applicant. In other words, it
seeks to show
that the applicant has a clear right to occupy the
property. It is important to note that there is no prayer
accompanying the affidavit
of the intervening party. It does not
itself seek relief. It contents itself with submitting that the
respondent has failed to
raise a valid defence to the relief sought
by the applicant and to submit that the application should be
granted. This is important
in that there is no contention on the part
of the intervening party that the respondent should be interdicted by
virtue of any
right vesting in the intervening party.
[16]
But its affidavit in fact undermines the
right contended for by the applicant. The intervening party makes it
clear that, because
the applicant has not paid the full purchase
price under the written sale agreement, the right, title and interest
in and to the
PTO has not, even now, been transferred to the
applicant. Neither could the applicant demand that it be so
transferred. The applicant,
on this version, does not have any rights
to the PTO and has therefore not shown a clear right. This supports
the contentions referred
to above of the respondent. It also
undermines the declaratory relief sought by the applicant that he is
entitled to the right,
title and interest in and to the PTO.
[17]
It remains to determine whether the case
made out by the intervening party supports the application in any
other way. The intervening
party claims to hold the right title and
interest in and to the PTO. A concomitant of this is that the
respondent no longer has
any right, title and interest in and to the
PTO. The intervening party puts up a document headed ‘Consent
to transfer’.
This is dated 26 March 2012 and purports to
transfer the right, title and interest to the PTO from the
intervening party to the
applicant on that date. However, it also
puts up what it says are two endorsements to the PTO. These are both
dated 16 May 2012
and are framed in the present tense. The
first records that the right, title and interest is ‘hereby
ceded’ by the
respondent to the intervening party in terms of
the deed of cession dated 29 October 1990. The second records that
the right, title
and interest of the respondent are ‘hereby
transferred’ to the intervening party. It is clear that
paragraph 3 of the
conditions to which the PTO is subject requires
prior written consent for any cession or transfer. Neither could
therefore have
taken place prior to 16 May 2012. At best for the
applicant, the earliest possible date that it could be contended that
either
the cession or the transfer of the right, title and interest
in and to the PTO from the respondent to the intervening party could
have taken place is 16 May 2012. On any version, accordingly, this
means that, since the intervening party was not the holder of
any
right, title and interest to the PTO on 26 March 2012, no transfer to
the applicant took place then.
[18]
As was pointed out by the respondent, no
case is made out that either a cession or transfer of the right,
title and interest in
and to the PTO had taken place on the date the
eviction application or the rescission application were launched. Nor
does the applicant
show that he had a lawful right to occupy the
property since 2004 as he contends. Even on the date the applicant
approached this
court and obtained interim relief, neither he nor the
intervening party was the holder of the right, title and interest in
and
to the PTO.
[19]
The applicant and intervening party have
even further difficulties. They claim the right to the PTO by virtue
of a sale in execution
of the right, interest and title in and to the
PTO of the respondent for the debt owed by him to the intervening
party. But the
intervening party is barred by paragraph 5 of the
conditions governing PTOs from executing against the PTO. This much
is clear
and, what is more, was not even contradicted by legal
argument, let alone in a replying affidavit. No basis is therefore
set out
on which the intervening party obtained the right, title and
interest in and to the PTO. Since this is a necessary substratum for
the case of the applicant, the edifice erected on it collapses. Even
the purported endorsements can have no legal basis since the
only one
relied on by the applicant and the intervening party is the
acquisition by way of the sale in execution.
[20]
Further, in answer to the founding
affidavit of the applicant, the respondent stated that his attorney
had approached the Sheriff
whose signature is said by the applicant
to appear on a certificate confirming that the intervening party
purchased the right,
title and interest in and to the PTO of the
respondent at a sale in execution held on 3 March 2004 and a document
purporting to
give consent to transfer it to the intervening party.
He asked the Sheriff to produce for him the documents and records
relating
to the alleged sale. The Sheriff in question indicated to
the respondent’s attorney that she had no records. Despite this
having been set out in this affidavit, the intervening party did not
deal with these averments in its affidavit or produce any
such
documents. The very fact of such sale having taken place has
therefore not been established.
[21]
Finally, even further doubt is cast on the
validity of the case of the applicant and the intervening party by
correspondence entered
into between the respondent’s attorney
and the Trust. By letter dated 8 May 2012, the attorney referred to
the dispute concerning
the PTO. He also referred to a document
purporting consent on the part of the Mpumuza Traditional Council to
an application by
the applicant to acquire rights to the property. He
also referred to the disputes between the parties and indicated that
the respondent
had not been notified of any application by the
applicant, was entitled to notice of any such application and
objected to it. The
Trust responded by letter dated 24 January 2013.
It said that the application by the applicant had been withdrawn on
the basis
that he had presented to the Trust ‘the unendorsed
Permission to Occupy over the land. To the Board of Ingonyama Trust
this
indicated that the Traditional Council was doubly allocating the
site as the Permission to Occupy has not been withdrawn’.
The
letter concluded with an indication that the Trust recognised the PTO
of the respondent. Once again, none of these averments
was replied to
by the applicant or the intervening party. This correspondence took
place after the interim order had been granted
and, indeed, after the
supposed endorsement had been made on the PTO. Once again, since the
application is to be decided on the
papers, the respondent’s
version, not being clearly untenable, must prevail.
[22]
In the result, on the date on which the
application was brought and the interim relief granted, the applicant
was guilty of the
material nondisclosure of the settlement agreement
which, in my view, must result in the application being dismissed
with costs
on a punitive scale. In any event, the applicant has not
shown on these papers that he has obtained and now possesses the
right,
title and interest in and to the PTO. This means that, on the
present papers, no case has been made out by the applicant or the
intervening party that the applicant has a clear right to occupy the
property.
In
the result the application is dismissed with costs on the scale as
between attorney and client.
GORVEN
J
DATE
OF HEARING 15 February 2016
DATE
OF JUDGMENT: 19 February 2016
FOR
THE APPLICANT
and
INTERVENING PARTY: VG Sibeko, instructed by:
Ngcobo
Poyo and Diedericks Inc, Pietermaritzburg, KwaZulu-Natal (for the
applicant) and
Ndwandwe
& Associates, c/o Lowe & Wills, Pietermaritzburg (for the
intervening party).
FOR
THE RESPONDENT: PJ Blomkamp, instructed by Compton Attorneys,
Pietermaritzburg, KwaZulu-Natal.
[1]
Per
Innes JA in
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[2]
It
bears mention that no issue was made of the fact that three persons
signed as purchaser. I therefore do not propose to deal
with this.
[3]
Arend
& another v Astra Furnishers (Pty) Ltd
1974
(1) SA 298
(C) at 306A-C.
[4]
Estate
Logie v Priest
1926 AD 312
at 323.
[5]
Bankorp
Ltd v Ridl & another
1993 (4) SA 276
(D) at 277B-C;
Schlesinger
v Schlesinger
1979
(4) SA 342
(W) at 348F-349B.
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634G-H.