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[2016] ZAGPPHC 647
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Mafrika v Magongwa (28553/2016) [2016] ZAGPPHC 647 (29 July 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
GAUTENG
DIVISION, PRETORIA
REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED
DATE: 29 JULY 2016
CASE
NO:
28553/2016
In the matter between:
SIMON
MAFRIKA
1
st
APPLICANT
BETTIE
MAFRIKA
2
nd
APPLICANT
and
NTSOPILALANA JOHANNES MAGONGWA 1
st
RESPONDENT
NOMADLAZI BEAUTY
MAGONGWA
2
nd
RESPONDENT
THE REGISTRAR OF DEEDS
PRETORIA
3
rd
RESPONDENT
J U D G M E N T
MALI J
[1] The applicants who are married in community of
property instituted an application for the transfer of immovable
property by
the first and the second respondent. The first and the
second respondent are married in community of property. The
immovable property
is described in the deeds office as [ Erf 7..,
Rabie Ridge Township], registration division IR, Gauteng (measuring
315 square
metres and held in terms of title deed no T6…]/1995)
(" the property").
[2] The third respondent is a party to the action by
virtue of the relief sought by the applicants. The first respondent
does
not oppose the application.
[3] The applicants' case is that they purchased the
property from the first respondent during August 2005. It is not in
dispute
that on 16 August 2005 the first applicant made a payment of
R86000.00 to the first respondent and that on 25 August 2005 the
first applicant and the second respondent signed the affidavit. The
affidavit was intended to perfect the agreement of sale. The
applicants' further basis of the agreement of sale is the Power of
Attorney to pass transfer signed by the first and the second
respondent.
[4] The second respondent is opposing the
application and has raised a
point in limine.
She has also
filed a counterclaim for the eviction of the applicants and unlawful
occupiers of the property.
POINT IN LIMINE
[5] The complaint is that the agreement of sale
relied upon by the applicants does not comply with the conditions of
Alienation
of Land Act
No
68 of 1981 ("the Act").
Section 2 of the Act provides;
"No alienation of land after the commencement of
this section shall, subject to the provisions
of
section
28,
be of
any
force
or effect
unless
it
is
contained in
a
deed of alienation
signed by the parties thereto or by their agents acting on their
written authority."
[6] As alluded above the applicant's case is based
on the Power of Attorney to pass transfer. It is not in dispute that
the first
and second respondent signed a power of attorney to effect
transfer. The second respondent does not deny that it is indeed her
signature that is appended in the power of attorney. She however
states that she cannot remember signing the power of attorney.
It is
apposite to refer to following clause contained in the power of
attorney;
"We, the undersigned, Ntsopilana Johannes
Magongwa Identity Number.
.
.
.
.
. and
Nomadlazi Beauty Magongwa
Identity
Number.
.
.
.
.. Married in community of property to each
other ( the
Transferors) hereby nominate, constitute and
appoint:
CHRIS NORTHWELL
MATHEBULA
with power of substitution to be the true and
lawful Attorneys
and Agents of the Transferors in the
name
,
place and stead of
the Transferors to
appear before the REGISTRAR OF DEEDS at PRETORIA and then and there
to declare that the Transferors
did on 14 August 2007,
truly and lawfully sell to (own
emphasis):
SIMON MAFRIKA [
Identity Number
49…]"
[7] Although the Power of attorney authorises the
representative of the respondents to transfer the property sold by
the first
and the second respondent in the past tense, being 14
August 2007, the hurdle is that it is not signed by the purchaser
and the
seller.
[8] The second respondent's submission is that she
never signed the deed of sale albeit the first respondent signed
same. It is
further submitted that there is a dispute about the
signature in the Power of Attorney. It is not clearly stated what
the dispute
is about, neither it is stated that she is not the
bearer of the signature in the Power of Attorney.
[9 It is not in dispute that the second respondent
further signed an affidavit titled
"AFFIDAVIT Transfer
of- [ERF 7..] RABIE
RIDGE TOWNSHIP'
The
predicament pertaining to the affidavit is that it is not
commissioned and also not signed by the witnesses. Counsel for the
second respondent submitted that even if the signature in the
affidavit is hers because of it is non-compliant it should be
disregarded.
Again the second respondent is non-committal about her
signature, she does not state unequivocally that she did not append
her
signature.
[1O] In fact the second respondent's response to the
above 1s the following;
"I recall the First Respondent coming to my
house in Limpopo
several times. I did not however sign
a
deed of alienation and at all
times refused to
sell my property. I note Annexures "MAF16" to "MAF19",
I do not recall signing those documents.
Further as is clear from
these documents
is
that
there
are
no
witnesses
who
signed
the
document
and no commissioner of oaths that verified it was indeed
myself who signed
same".
[11] Furthermore there are glaring similarities in
the signature denied by the second respondent appended in the power
of attorney
with the signature appended to her two affidavits at page
88 and 108 of the paginated papers. Counsel for the second
respondent
could not take further the submissions regarding the
similarities of the signature alluded above. He only stated that the
second
respondent is a pensioner and not wealthy to employ the
services of a hand writing expert.
[12]
Counsel
for the applicant further submitted that the second respondent's
signature appended in the power of attorney supports the
submission
that there was intention and decision to sell the property. It is
opportunistic of her to dispute the sale of the property
relying on
non- commissioned affidavits bearing her signature.
[13] It is upon the above submissions that it has
been submitted on behalf of the applicants that the provisions of
section
2(1) of the Act must be read with sections 15 (2)(a) and 15
(9) (a) of the Matrimonial Property Act, 88 of 1984 ("the
Matrimonial Property Act"
;)
[14] In terms of
section 15(2)(a)
of the
Matrimonial Property Act a
spouse who is married in community of
property shall not without the written consent of the other spouse
"alienate, mortgage,
burden with a servitude or confer any real
right in any immovable property forming part of the joint estate."
[15] However,
section 15(9(a)
of the
Matrimonial
Property Act provides
that:
"(9) When a spouse enters into a transaction with a
person contrary to the provisions of subsection (2) or (3) of this
section,
or an order under
section 16
(2), and-
(a)
that person does not know and cannot
reasonably know that the transaction is being entered into contrary
to those provisions or
that order, it is deemed that the transaction
concerned has been entered into with the consent required in terms of
the said subsection
(2) or (3), or while the power concerned of the
spouse has not been suspended, as the case may be;"
[16] These provisions seek to regulate marriages in
community of property after the abolition of marital power
[1]
.
They are intended to protect a bona fide third party who enters into
a transaction with a person who is married in community
of property
if the third party does not know, and cannot reasonably be expected
to know that the person's
spouse
had to consent to the transaction or that the necessary consent
was not obtained.
[17] For a purchaser, for his or her interest to
trump those of innocent spouse, must prove that he or she did not
know and could
not have reasonably know and could not have known that
the consent of the innocent spouse was lacking. If this is proved,
then
the innocent spouse is deemed to have consented and his or her
remedy for any loss suffered as a result is an adjustment in his
or
her favour when ( and if) the joint estate is divided.
[18] The question is whether in the present matter
the facts support the above provisions. The undisputed sequence of
events
is that the deed of sale was first signed by the applicants,
and by the first respondent who at the time was residing in
Gauteng.
He then took the deed of sale to the second respondent to
Limpopo in their other residence. Subsequent to that, the Power of
Attorney referred to above was signed by both respondents. From the
above the applicants could not have known that the first respondent
did not have the consent of the second respondent.
[19] Above, I have alluded to the second respondent's
unsatisfactory explanation which rather suggests her
opportunism.This is
because o at paragraph 28. 3 ,28.4 ,28.5 and 28.6
of the second respondent's answering affidavit she states the
following
"28.3
My husband and I are rural people and the Applicants are wealthy
urban people. I respectfully submit that the Applicants
unduly
influenced my husband to accept an amount of R86000. 00 having
him think that same
was fair value for the property.
28.4 I attach
hereto as Annexure
"NBM2"
a valuation conducted by
my attorney of record produced by Lightstone. I pause to mention
that this valuation report, is a comprehensive
report that helps
determine the fair market value of residential property in South
Africa.
28.5 In terms
of the report the estimated value of the property is R470
000.00 while
the expected high value of the property is R630 000.00.
28.6 I am advised that since the Applicants made
payment of R86000. 00 to my husband in terms of unenforceable,
invalid and void
contract, my husband is required to tender
repayments of the amount to the Applicant . . . .. ""
[20] Some of the above submissions made by the
second respondents are just brave and bald statements. The first
respondent, her
husband who is supposedly influenced by wealthy
urban people does not oppose the application. Secondly the issue of
the valuation
of the property disregards the undisputed fact that
the payment of the property was made on 16 August 2005, eleven years
ago.
The valuation which appears to be the trigger of opportunism
was made on 15 July 2015.
[21] Furthermore the second respondent did not
dispute the first applicant's submission at page 15 of the paginated
record, paragraph
10. The
submission is as follows:
"10.1 On or about, our attorney of record,
(sic) Mr
Ntewukeni contacted the 1st Respondent and he
informed him that as far as he was concerned
he signed
all
the documents
for
us
as he has
travelled
to Gauteng two times
to sign the transfer documents and further that we
have
been
to
his
homestead
and
his
wife
signed
the
documents
and therefore they
were not prepared to sign any further documents."
[22] From the above it is apparent that according to
the first respondent he and his wife had completed the process to
effect
the transfer of the property. Therefore the applicants could
not have reasonably known that the first respondent did not have
consent from the second respondent to alienate the property.
Furthermore the second respondent had at no time challenged the
validity of the deed of alienation.
[23] Having regard to the above it is deemed that
the second respondent have consented to the alienation of the
property. The
applicants who are bona fide third parties are entitled
to the protection afforded by
section 15
(9) (a) of the
Matrimonial
Property Act, therefore
the deed of alienation is accepted as valid.
The
point in limine
must fail.
[24] In the result I make the following order;
24.1
The agreement of sale between
the applicants and first and
the second respondents is
valid and enforceable;
24.2
The first and second
respondents are compelled to do all things necessary to comply with
the agreement and to sign all
the
documents necessary in order to give effect of the transfer of
the property in the names of
the first and second
applicant.
24.3
In the event that the first
and second respondents fail to take
the necessary steps referred
to in paragraph 23.2 above, the Sheriff of the above court is
authorized to sign any documents and
to take
such steps
on
behalf
of
the
applicants
as
may
be
necessary
to
give
effect to this
order.
24.4
The first and second
respondents are prohibited from alienating, disposing of and
transferring the property to any third
party.
24.5
The second respondent is
ordered to pay costs including costs of counsel.
N.P. MALI
JUDGE OF THE HIGH COURT
Counsel for the
Applicants: Adv. H.
H. Cowley
Instructed
by:N C NTEWUKENI
ATTORNEYS
Counsel for the second
respondent:
Adv. Y van
Aartsen
Instructed
by:N O A
KINSTLER
Date of Hearing:
20 April
2016
Date of
Judgment:29 July
2016
[1]
Matrimonial Property Act 88 of 1984
,
s 11.