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[2016] ZAGPPHC 397
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Kotze and Others v Grobler and Others (38988.2015) [2016] ZAGPPHC 397 (27 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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and
SAFLII
Policy
REPUBLIC
OF SOUTH
AFRICA
IN
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 38988/2015
DATE:
27 MAY 2016
In the matter
between:
M.S KOTZE
[l.D. NO: …]
FIRST APPLICANT
J. A. KOTZE
[ID NO: …]
SECOND APPLICANT
S.J.M KOTZE
[ID NO: …]
THIRD APPLICANT
D. A. KOTZE
[ID NO: …]
FOURTH APPLICANT
A.
DE BEER
[ID NO: …..]
FIFTH APPICANT
A. M. BAUER
[ID NO: ]
SIXTH APPLICANT
and
BJ
GROBLER
[ID
NO:
..
]
FIRST RESPONDENT
THE UNLAWFUL OCUPIERS OF
PORTION
[…]
OF
THE FARM
BOSCHKRANS [..], REGISTRATION
DIVISION
l.S
MPUMALANGA
PROVINCE,
REMAINING
EXTENT
OF THE
FARM
ELANDSFONTEIN
[…
],
REGISTRATION
DIVISION 1.S MPUMALANGA
PROVINCE AND
PORTION 5 OF THE
FARM
CALLED
FLORIDA
OF THE
FARM
ELANDSFONTEIN75REGISTRATION
DIVISION
0.S.
MPUMALANGA
PROVINCE
SECOND
RESPONDENT
JJ
MALAN
THIRD
RESPONDENT
GOVAN
MBEKI
LOCAL
MUNICIPALITY
FOURTH
RESPONDENT
JUDGMENT
KOOVERJIE
AJ:
A.APPLICATI ON:
[1]
The applicants
seek the eviction
of the first respondent
(Mr Grabler) from the
property defined
as
Portion
11 of the farm
Boschkrans,
Remaining
Extent of
the
farm
Elandsfontein
75 and
Portion 5 of the farm
named
Florida
(referred
to
as
"
the
Property"
).
The
Property
includes
a
home
with
4
bedrooms,
a
bathroom and two
living rooms. The applicant seeks relief in terms of the PIE Act (the
Prevention of Illegal Eviction from and Unlawful
Occupiers of the
Act, 19 of 1998), alternatively eviction in terms of the common law
premised on the
rei vindicatio.
B.
COUNTER
APPLICATION
[2] The first
respondent had filed a counter application wherein he sought
inter
alia
the following relief:
that the applicants be ordered to forthwith sign all the documents
as submitted by Messrs Cronje
&
Van der Walt to effect transport of the properties;
(2) if any of the applicants fail to sign the aforesaid documents,
the Sheriff is ordered to do so in their stead;
(3)costs of the application.
[3] However at the hearing the first respondent requested that the
counter application be postponed
sine
die
on
the basis that the first respondent had not effected service on all
interested parties.
D. BACKGROUN
D
[4]The salient facts of this matter concern the sale of property. The
property had been sold twice, firstly in terms of the first
deed of
sale and shortly thereafter in terms of the second deed of sale.
First Deed of Sale
[5] On 9 July
2009 the applicants concluded a sale agreement with the third
respondent (Mr Malan) for a purchase consideration of
R3,5 million.
[6] The salient terms of the agreement
inter alia
were:
6.1 Mr Malan
would pay the purchase amounts in cash against the registration of
transfer of the premises into the name of Mr Malan,
with the purchase
considerations Mr Malan had to guarantee by virtue of an
acceptable bank guarantee by no later than 31
August 2010.
6.2 Mr Malan
could take occupation of the premises pursuant to an existing rental
agreement which would expire by 31 August 2010
and the parties would
endeavour to ensure that registration of transfer of the premises of
Mr Malan be effected before the expiration
of the lease agreement.
[8] At all times Cohen, Cronje and Van Der Walt, a firm of attorneys
in Betha! were appointed as the transfer attorneys.
Second Sale
[9] The registration did not materialise since Mr Malan had entered
into a written deed of sale with Mr Grabler in respect of the
Property on the
29th
of October
2009.
On the first respondent's version, the salient terms of this
agreement were premised on the following basis:
9.1
Mr Malan declared
that he was the owner of the property;
9.2
He sold the Property for an amount of R6 million;
9.3
Mr Malan was in occupation of the property in terms of the
lease agreement he had with the applicants (in respect of the first
sale)
and which would expire by
31
August
2010.
9.4 Mr Malan and Mr Grabler would endeavuor to ensure that the
registration of the Property would be in the name of Mr Grabler
by
or before the
31st
of August
2010.
[1
O]
At some point Mr Malan emigrated and left the
property in Mr Groblers hands and does not feature as a deponent in
this application.
[11] Between October 2009 to June 2014, Mr Grabler undertook to
have the property registered in his name. However, due to numerous
obstacles, the transfer could not be effected.
[12] Around June
2014, the applicant decided not to proceed with the sale by raising
prescription. Four and half years had
lapsed since the
applicants signed the first deed of sale; causing the first sale to
become prescribed in terms of S11 of the Prescription
Act. As a
result the second sale is a nullity. Hence, the essence of the
dispute between the parties concerns the enforceability
and validity
of the first deed of sale.
D.
POINT
IN
LIM/NE
[13] Before this
court attempts to proceed on the merits, it is obliged to deal with a
point of non-joinder raised on the part of
the first respondent (Mr
Grabler). This aspect had been dealt with in the respondent's
affidavit.
[14] Counsel for
the first respondent emphasized that the non-joinder of the two
owners of the property is a fatal irregularity
and on this basis
alone, this application should be dismissed.
[15] In terms of
the Will and Testament of Mr and Mrs Malan (the mutual owners of the
property), the property was bequeathed to
their three daughters Anna,
Maria Elizabeth Du Toit, Mona Sara Kotze and Cecila Johanna Bauer and
their offsprings, upon their
death, The daughter were the recipients
of a fideicommisissum in terms of the will.
[16] Stephanus Jacobus Van der Westhuizen
("
Van
der Westhuizen")
was an offspring of one of
the daughters. As
a
fiduciary heir, he received his ownership right
from the fudiciary heir.
[17] In respect of the first deed of sale Van der Westhuizen was a
signatory to such deed of sale and did so in his capacity as
joint
owner. However in this application he was not cited as aapplicant.
[18] Furthermore,
Anna Elizabeth Bauer also a fiduciary heir was cited as the sixth
respondent in this application, however her
confirmatory affidavit
was lacking in this application.
[19] The
applicants submitted the following argument in respect of the
non-joinder namely:
19.1In respect of
Van der Westhuizen; he had "disappeared" and most his
family members have had no contact with him for
over three decades;
19.2 In respect of Anna Maria Elizabeth Bauer; their argument
essentially was she could neither read nor write and she wouldnot
have have been in a position to make a contribution to this
application.
[20] It was
brought to this court's attention that Mr Malan's brother had managed
to locate and obtain Van der Westhuizen's signature
when it was
required for the transfer process in respect of the sale between
Malan and Grobler. Therefore their excuse was a lame
one.
[21] Counsel for
the respondents argued that no satisfactory explanation was presented
by the applicants indicating if any attempts
have been made to locate
Van der Westhuizen.
[22] It is trite
law that all parties who have substantial legal interest in the
litigation must be before the Court. The objection
of non-joinder may
be raised where the point is taken that a party who should be before
the court has not been joined or given
judicial notice of the
proceedings
[23]The substantial test is whether the party that
is alleged to be a necessary party for purposes of joinder has a
legal interest
in the subject matter of the litigation which may be
affected prejudicially by the judgment of the court.
[1]
[24] Moreover it
is settled law that the right of the defendant (in the case of the
respondent) to demand joinder of another party
is specifically
entertained by
our court in instances where the parties are joint
owners or parties and in instances where such party has a direct and
substantial
interest in the litigation.
[24] In such instances joinder is necessary.
[2]
5] Having considered the papers and the argument of Counsel for both
parties I am of the view that it would be highly irregular
to proceed
with the merits of this matter if all interested parties are not
before the Court and are not aware of the litigation
between the
parties and the effect that a court order would have on them
[26] Both parties
have a substantial and legal interest as co-owners of the said
property. They should be made aware of the litigation
and at least
file confirmatory affidavits, alternatively a comprehensive affidavit
indicating their portion in this matter.
[27] The two
aforesaid joint owners have no knowledge that a fatal irregularity is
before court and the submissions of the applicants
are inexcusable.
[28] During
argument counsel for the applicant requested that this matter should
be postponed and be heard with simultaneously with
the counter
applicationwhich the court was requested to postpone, in light of the
non-joinder being persisted upon by the respondent.
However the Court
cannot come to the assistance of the applicants at the last hour.
Consequently this application cannot proceed
on the merits as the
non-joinder of the two co-owners constitutes a fatal irregularity.
[28] It must be
emphasised that the applicants were aware of the fatal non-joinder
from respondents answering papers. At that time
they should have been
cautioned and appreciate that all co-owners are required to be before
court. This principle has become settled
law. Their substantial
financial and legal interest can be compromised in litigation and
they have the right to have knowledge
thereof.
[30] In the premises the following order is made:
(1)The application is dismissed with costs.
(2) The
counter-application is postponed
sine die
with costs to be in
the cause.
H Kooverjie
Acting Judge of the High Court
Counsel for the applicants: Adv. J De Beer Attorney for Attorney of
applicants: Wiekus Du Toit Attorneys Counsel for the First
Respondent: CFJ Brand SC
Attorney for the First Respondent: Christo Smith Attorneys
[1]
Bowri
ng
NO
v
Vredcdorp
Properties
CC
2007
(5)
SA 391
SCA
at
pa
ra
21.ma
lga
mated
E
n
gineerin
g U n
ion
v
M
in
ister
of La
bou
r
1949 (3) SA 637
A.
..
[2]
BHT Water Treatment (Pty) Ltd v
Leslie
1993 1 SA 47
W at 50 -
60 [See also Herbstein
and
van Winsen, Civil
Procedure of the High Court of South Africa, Fifth Edition. Juta at
p238-240]