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[2016] ZAECELLC 2
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Grouse v Mdyogolo and Another (EL365/16, ECD865/16) [2016] ZAECELLC 2 (25 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, EAST LONDON CIRCUIT DIVISION)
Case
no. EL 365/16
ECD
865/16
In
the matter between:
DAVID
THOMAS
GROUSE
Applicant
and
NOMAWETHU
BARBARA
MDYOGOLO
First
Respondent
THE
REGISTRAR OF
DEEDS
Second
Respondent
JUDGMENT
MBENENGE
J:
[1]
Not everything that begins well, ends well. The facts of this
case demonstrate just how true that is. The applicant
is an
Irish citizen who is currently staying in East London. The
first respondent is a citizen of South Africa. The
two met and
fell in love during the first respondent’s sojourn in Ireland,
where she had been working.
[2]
In the course of time, the applicant and the first respondent moved
to South Africa and settled in East London. They lived
together
in the house which is the subject of these proceedings
[1]
until their relationship was beset by acrimony which resulted in the
applicant moving out of the Property and staying with friends
in the
Property’s neighborhood.
[3]
The Property was purchased by the applicant for R1.1million, but is
registered in the name of the first respondent.
[4]
According to the applicant the only reason why the Property was
registered in the first respondent’s name was that the
first
respondent had told him that, because the first respondent was not a
South African Citizen and did not have permanent residence
in South
Africa, he was not legally able to purchase and register immovable
property in his own name in South Africa. The
Property, so goes
the applicant’s case, was purchased not as a gift, but rather
as a means to secure a roof over his head
in a strange country with
the full and honest belief that he would have entitlement thereto.
The applicant says he has found
this to have been false and callous
misrepresentation by the first respondent which he acted upon to his
detriment.
[5]
The first respondent has evinced a settled determination to sell the
Property and to utilize the proceeds of the sale for herself,
as she
has the sole rights to the Property. The applicant is not
opposed to the sale on condition that it is sold at a reasonable
market related price with him being allowed to make an input in the
selling price and involved therein, including but not limited
to the
disbursement of the funds realized.
[6]
The applicant is bent on launching an action with a view to securing
his alleged rights over the Property.
[2]
As safeguard thereto, the applicant has resorted to the instant
application and is in effect seeking an order restraining
the first
respondent from disposing of the Property, pending the launch of the
action. In the event of the Property having
already been sold,
the applicant seeks an order restraining the second respondent from
registering the Property in the name of
any other person, pending the
launch of the action.
[3]
[7]
The first respondent’s opposition to the application is
premised primarily on the contention that she is the registered
owner
of the Property which the applicant bought freely and voluntarily for
her; the applicant has no protected rights over the
Property.
She denies ever having misrepresented any facts to the applicant
prior to the purchase of the Property. The
first respondent has
summed up her basis for opposing the application as follows:
“…
the
lack of the protectable right in law does not afford the applicant
the relief he is seeking and the lack of his substantial
and direct
interest in the Property [deprives] him of any
locus
standi
to bring this application.”
[8]
The dispute of fact in relation to the circumstances in which the
Property was purchased and registered in the name of the first
respondent is a matter resoluble at the intended trial. All
that the applicant must establish in order to succeed in his
quest
for the grant of the subject interlocutory interdict is a
prima
facie
right, a well- grounded apprehension of irreparable harm and absence
of any other satisfactory remedy.
[4]
[9]
It is trite law that the
prima
facie
right that the applicant must establish is one that may even be “
open
to doubt
.”
[5]
It is trite law that parties have the freedom to contract.
[6]
There is thus nothing precluding two persons from agreeing that the
one will buy an immovable property to be registered in
the name of
the other, rendering the latter a mere nominee.
[10]
It is also available to one to challenge a sale giving rise to the
transfer of immovable property induced by fraudulent
misrepresentation
as being of no force.
[7]
Subject to his version being truthful, the applicant is not precluded
from asserting the contractual right he intends contending
for.
His case that the Property paid for by him and registered in the name
of the first respondent resulted from fraudulent
misrepresentation
accords him a direct and substantial interest in the Property and
what should eventually become thereof.
[11]
Purely at a
prima facie
level, the first respondent’s
version that the Property, worth R1.1million was a gift, is, in the
circumstances of this case,
hard to believe.
[12]
The first respondent has not come forth stating what she intends
doing with the proceeds of the contemplated sale of the Property.
She intends selling the Property and accessing the proceeds of the
sale without recourse to the applicant. Were that to the
happen, the applicant would surely be prejudiced. I am
satisfied, on the facts of this case, that the applicant has a
well-grounded
apprehension of irreparable harm if the interlocutory
interdict is not granted and he is eventually successful in his
action to
be founded on fraudulent misrepresentation.
[13]
In my view, the balance of convenience also favors the grant of the
order sought. The applicant stands to lose a substantial
amount
of money, were the intended sale to proceed. He paid no less
than R1.1million towards the purchase of the Property.
The
first respondent is on record as having paid nothing. She
stands to suffer nothing, were the interim relief to be granted.
[14]
There does not appear to be any other satisfactory remedy available
to the applicant, save the interdictory relief he is seeking.
The
first respondent has pointed to none.
[15]
The application must succeed. There is no reason why costs
should not follow the result.
[16]
The applicant has annexed particulars of the intended claim to show
his
bona fides
. The applicant is thus on record as being
ready to launch the action. There is nothing militating against
him launching
the action within 14 days from the date of the order
sought herein being granted.
[17]
In the result, it is ordered that:
(a)
The first respondent is interdicted and retrained from selling or in
any manner whatsoever
disposing of Erf [2.....], Buffalo City
Metropolitan Municipality, Division of East London, Province of the
Eastern Cape presently
held under titled deed T2286/2014, first
transferred by Deed of Transfer number T1267/1964 with diagram number
9502/1961 relating
thereto and held under Deed of Transfer number
T6247/2005 convoly known as [... K. S.], Amalinda, East London (the
Property), pending
the launch and finalization of action
proceedings by the applicant against the first respondent in relation
to the Property.
(b)
In the event that the Property has been sold to a third party, the
second respondent is
restrained and interdicted from allowing
registration of the Property in the name of the third party, pending
the launch and finalization
of the proceeds referred to in paragraph
1 above.
(c)
Should the action not be launched within 14 days from the date of
service of this order
on the applicant, sub-paragraphs (a) and (b) of
this order shall immediately have no force or effect
.
(d)
The first respondent shall pay the costs of this application.
________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the applicant
: Mr J J
Bester
Instructed
by
Andre Schoombie Attorneys
EAST LONDON
Counsel
for the 1
st
respondent
:
Mr S Y
Malunga
Instructed
by
Godongwana Ngonyama Phakade Attorneys
EAST LONDON
Date
heard
: 12 May
2016
Date
delivered
: 25 May
2016
[1]
House no 7 Koch Street,
Amalinda, East London, located on Erf 2193, Buffalo City
Metropolitan Municipality, Division of East London,
Province of the
Eastern Cape (the Property
).
[2]
A copy of the unsigned version
of the relevant particulars of claim annexed to the applicant’s
founding papers sums up the
applicant’s case in the relevant
part as follows:
“
3.
During or about the period November 2013 to April 2014 and at East
London and the [R]epublic of Ireland, the Defendant
represented to
the Plaintiff that due to the plaintiff not being a South African
citizen, he is unable to register movable and
immovable property in
his own name.
4.
When making the representations, the Defendant knew it to be false
in that she knew that the Plaintiff was
in fact entitled to register
movable and immovable property in his own name.
5.
When the Defendant made the representations, she intended the
Plaintiff to act thereon and accordingly the
Plaintiff and Defendant
entered into the following agreement:
5.1
the Plaintiff would purchases immovable property [the Property]…
.2
the Plaintiff would pay the purchase price of the immovable property
and related costs;
5.3
the Plaintiff would cause the immovable property to be registered
in
the name of the Defendant;
…
5.4
the Plaintiff and the Defendant would reside together in the
immovable
property;
6.
The plaintiff was induced by the representations to purchase the
immovable property … in the name
of the Defendant
7.
Had the Plaintiff known the true facts, he would not have purchased
and registered the immovable property
… into the Defendant’s
name.
8.
At the time of entering into the agreement, the representations made
by the Defendant were, to the knowledge
of the Defendant false.
9.
The Defendant was aware that the Plaintiff did not know of the
falsity of the representations and the Defendant
had a duty to
inform the Plaintiff that the representations made by her were
false.
10.
Despite this duty, the Defendant intentionally failed to inform the
Plaintiff of the falsity of her representations.
11.
As a result of the Defendant’s misrepresentations, the
Plaintiff cancelled the agreement between the parties alternatively
cancels it herewith.
12.
In the premises, the Defendant was enriched at the Plaintiff’s
expense.”
[3]
In the
intended action the plaintiff seeks the following prayers:
“
1.
Cancellation of the oral agreement;
2.
That the Defendant does all things necessary and sign all documents
to effect transfer of the immovable property
into the name of the
Plaintiff within 30 days of date of judgment;
…
4.
In the event of the Defendant failing to comply with prayers (2) and
(3) above, authorising the Sheriff of the
High Court to do all
things necessary and to sign all documents to effect transfer of the
immovable property … into the
name of the Plaintiff;
5.
Alternatively to prayers (2) and (3) above, payment in the sum of R
(purchase price of immovable property).”
[4]
Setlogelo
v Setlogelo
1914 AD 221
;
Maccsand
CC v Macassar Land Claims Committee and Others
[2005] 2 All SA 469
(SCA);
South
African Informal Traders Forum and others v City of Johannesburg and
others; South African National Traders Retail Association
v City of
Johannesburg and others
2014
(6) BCLR 726 (CC).
[5]
Webster v
Mitchele
1948(1) SA 1186 (W) at 1189; See also
Pinzone
Traders 8 (Pty) Ltd v Clublink
(Pty)
Ltd
2010 (1) SA 506
at 513A-C.
[6]
In
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) at para
[57]
Ngcobo J, writing for the majority,
held:
“
On
the one hand public policy, as informed by the Constitution,
requires in general that parties should comply with contractual
obligations freely and voluntarily undertaken. This consideration is
expressed in the maxim
pacta
sunt servanda
,
which, as the Supreme Court of Appeal has repeatedly noted, gives
effect to the central constitutional values of freedom and
dignity.
Self-autonomy, or the ability to regulate one’s own affairs,
even to one’s own detriment, is the very essence
of freedom
and a vital part of dignity. The extent to which the contract was
freely and voluntarily concluded is clearly a vital
factor as it
will determine the weight that should be afforded to the values of
freedom and dignity.”
[7]
Absa v
Moore
2016 (3) SA 97
(SCA).