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[2016] ZAGPPHC 1009
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Ramoraswi and Others v Hlongwane and Others; Matlala and Another v Hlongwane and Others (37227/2011; 14614/2009) [2016] ZAGPPHC 1009 (2 December 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 37227/2011
2/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
JANE
RAMORASWI
FIRST
APPLICANT
SIPHO
RAMORASWI
SECOND
APPLICANT
EVA
RAMORASWI
THIRD
APPLICANT
and
SARAH
HLONGWANE
FIRST
RESPONDENT
ELMA
MATLALA
SECOND
RESPONDENT
SEMAKALENG
LUCIA BOIKANYO THIRD
RESPONDENT
THE
MASTER OF THE HIGH COURT, PRETORIA FOURTH
RESPONDENT
NEDBANK
LIMITED
FIFTH
RESPONDENT
THE
REGISTRAR OF DEEDS, PRETORIA
SIXTH
RESPONDENT
and
CASE
NO:
14614/2009
In
the matter between:
ELMA
MATLALA
FIRST
APPLICANT
SEMAKALENG
LUCIA BOIKANYO SECOND
APPLICANT
and
MAPULE
SARAH HLONGWANE
FIRST
RESPONDENT
MACY
RAMORASWI
SECOND
RESPONDENT
UNLAWFUL
OCCUPIERS OF 300 CHABANGU THIRD
RESPONDENT
STREET
MAMELODI WEST PRETORIA
JUDGMENT
MALI
J
[1]
On 15 May 2012 my sister the Honourable Judge Molopa-Sethosa J
made an order as to consolidate the two cases, being case numbers
14614/2009 and 37227/2011, under case number 37227/2011.
APPLICATION UNDER CASE
NUMBER 37227/2011
[2]
This is an application for an order compelling and directing
the fourth respondent to withdraw the certificate of appointment
issued
to the first respondent. The order is further sought that the
fourth respondent appoint the first applicant as
the executor in the estate of the late
Ramoraswi Moseapudi Ramoraswi, declaring and cancelling
the sale
agreement by the first respondent to the second and third respondents
as null and void
ab initio,
and finally directing the second
and third respondents to transfer the said immovable property to the
Ramoraswi Family Trust.
[3]
The issue for determination is whether the first respondent
was entitled to sell the immovable property, to be discussed below,
to the second and third respondent.
[4]
The first respondent appears to be the relative or at least
well known to the applicants. There is a disputed appointment of the
first respondent as the administrator of the deceased estate of the
late Moseapudi Ramoraswi who died intestate and left a certain
immovable property forming the subject matter of this application.
[5]
The second and the third respondent bought the property from
the first respondent. The first and the fourth respondent do not
oppose
the application. The fifth respondent will abide by the court
order.
[6]
The fourth respondent is the Master of the High Court who
amongst other is responsible for the supervision of the
administration
of deceased estates.
[7]
The fifth respondent is the holder of a mortgage bond
registered over the said immovable property.
APPLICANTS
CASE
[8]
It is submitted on behalf of the first to third applicants
that they are siblings, born from the marriage of the late Mantsho
Emily
Ramoraswi and Ngwako Ramoraswi. Ngwako Ramoraswi was the only
child and son of the late Moseapudi Melita Ramoraswi ("deceased")
Therefore the applicants are the grandchildren of the deceased.
[9]
The deceased died intestate on 14 November 1997. The deceased
left behind the immovable property known as Erf […] ,Mamelodi,
Registration Division JR, Gauteng situated at […], Mamelodi
West, Pretoria ("the property"). The applicants lived
in
the property with their parents.
[10]
According to the applicants the estate devolved to their
father because of the rules of intestate succession. Their father did
not
register the deceased estate. Their father died on 25th November
1998 and their mother, who passed away on 24 March 2004, also did
not
register the deceased estate and neither her late husband's estate.
[11]
On 31 March 2004 the first applicant registered the estate of
their mother, Mantsho. The applicants submit that by virtue of the
deceased having died intestate, the property devolved to their
parents who also died intestate, therefore they are beneficiaries
in
the deceased's estate, to wit property.
[12]
On or about August 2010 the applicants were served with an
eviction order because they were in unlawful occupation of the
property.
The case for eviction has been instituted by the first and
second respondents, being the applicants under case 14614/09.
[13]
The applicants
learnt that letters of administration of the deceased estate
"to
represent the intestate of the late Ramoraswi Moseapudi Melita
[1]
”
was issued on 25 January
2007. The first respondent then sold the property to the second and
third respondents. The information
regarding the sale of the property
came to the first applicant's knowledge on or August 2008 when the
first respondent attended
to the property for viewing purposes. The
property was transferred to the second and third respondent on 18
July 2008.
[14]
According to the applicants the property was donated to the first
respondent by the deceased in terms of a deed of donation.
The copy
of the said deed of donation was annexed to the applicant's
supplementary affidavit filed on 25 July 2016, three days
before the
hearing of this application. The applicants by their own admission,
state that the first applicant was in possession
of the copy of the
deed of donation as early as 2007 and she provided same to her
attorneys. The first applicant did not provide
any explanation about
the absence of the original deed of donation.
[15]
The copy of deed of donation is allegedly signed by the deceased on
16 November 1997, whilst the deceased passed away on 14
November
1997. It is upon these grounds that the applicants submit that the
appointment of the first respondent as an administrator
of the estate
is invalid. The first respondent had no right to sell the property.
[16]
It is further submitted
that another factor causing the said deed of donation to be
suspicious is that the deceased was literate.
She was able to write
and could have been in a position to draw her signature rather than
to insert a thumb print as seen in the
said copy of the deed of
donation.
[2]
[17]
In the supplementary affidavit the applicants state that she informed
the first respondent about the invalid deed of donation
between 2007
and 2008.
RESPONDENTS CASE
[18]
Ms Erasmus, on behalf of the respondent submitted that the applicants
should have brought the case by way of action as there
is a factual
dispute. The counter argument proffered on behalf of the applicants
is that the application can still be decided on
papers. I fully agree
with the applicants' submission.
[19]
The respondents have raised a defence of estoppel against the
applicants. This is because the second and the third respondents are
bona
fide
purchasers
who bought the property on the strength of the representation by the
first respondent. The first respondent was in possession
of the
letters of administration of estates as alluded above.
[20]
In
Levi
and Others
v
Zalrut
Investments (Ply) Ltd
[3]
at 487 F - H where
van Zyl J stated:
"In any event,
even in the
case
of illegal or invalid acts, should there be
no considerations of public policy which militate against the
recognition of estoppel,
estoppel may still be raised.
See
Trust
Bank van Afrika Bpk v Eksteen
1964 (3)
SA
402
(A) at 415-416 A
(per HOEXTER A.JA
as
he then was):
"The doctrine of
estoppel is an equitable one, developed in the public interest, and
it
seems
to
me
that, whenever
a
representor
relies on
a
statutory illegality, it is the duty of the Court
to determine whether it is in the public interest that the
representee should
be allowed to plead estoppel. The Court will have
regard to the mischief of the statute on the one hand and the conduct
of the
parties and their relationship on the other hand.”
[26] The general
principle is that estoppel is not allowed to operate in circumstances
where it would have a result which is not
permitted by law. A defence
of estoppel cannot be upheld if its effect would be to render
enforceable what the law, be it the common
law or statute law, has in
the public interest declared to be illegal or invalid. See the
Chapter on Estoppel by P J Rabie in Lawsa
Volume 9 (2nd Edition)
paragraph 673. The principle finds firm and unequivocal articulation
by the Supreme Court of Appeal at various
passages in the case of
City of Tshwane Metropolitan
Municipality v RPM Bricks.
[4]
At
paragraph 16, it was stated by Ponnan JA:
"It is settled
law that
a state
of affairs prohibited by law in the public
interest cannot be perpetuated by reliance upon the doctrine of
estoppel (Trust Bank
van Afrika Dpk v Eksteen
1964 (3) SA 402
(A) at
411H-4 HR), for to do
so
would
be
to compel the
defendant to do something that the statute does not allow it to do.
In
effect
therefore it would
be
compelled to commit an
illegality (Hoisain v Town Cleric. Wynbe,y
1916 AD 236).
"
At paragraph 23 D-F:
"Estoppel cannot,
as I have already staled, be used in such
a
way as to give
effect
to what is not permitted or recognised by law.
Invalidity must therefore follow uniformly as the consequence.
That consequence
cannot vary from
case
to case. "Such
transactions are either all invalid or all valid. Their validity
cannot depend upon whether or not harshness
is discernible in
a
particular case" (per Marais JA in
Eastern
Cape
Provincial Government
&
others v Contractprops
25 (Fly) Ltd20U1 (4) SA 142 (SCA) paragraph [9])... "
And further at paragraph
(24] H-J:
"The approach
advocated by the teamed Judge, if endorsed, would have the effect of
exempting courts from showing due deference
to broad legislative
authority, permitting illegality to trump legality and rendering the
ultra vires doctrine nugatory. None of
that would be in the interests
of justice. Nor. can it be said, would any of that be sanctioned by
the Constitution, which is based
on the rule of law, and at the heart
of which lies the principle of legality."
[21]
The applicants counter argument to the respondents' defence is that
the owner of the property is the deceased estate which
was not
represented, therefore estoppel cannot be raised in the
circumstances. The applicants' argument does not take the case
further because the respondents never bought the property from the
deceased estate. In fact the property was never registered as
the
property of the estate; even the applicants, by their own admission,
never registered the property in their mother's estate
in 2004 whom
they claim was once a beneficiary because of the laws of intestate
succession.
[22]
There was a reasonable and lawful representation made by first
respondent who appears to be the applicants relative and or
family
member. This is inferred from the applicant's averment that they once
instituted a case of domestic
violence
against the first respondent's sons. By applicants own
admission they knew that she had a claim to the property
as early as
2007 and they did not take any action.
[23]
It was further submitted on behalf of the respondent that annexing
of the copy of the deed of donation almost 7
(seven)
years later post reference is suspicious. The explanation submitted
on behalf of the applicants regarding the huge gap
for production of
the deed of donation is that the said copy of the deed of donation
was provided to their attoneys before the
drafting of the founding
affidavit. There is no explanation by the attorneys or any
confirmation regarding the applicants' averments.
This is rather
strange as it appears that the applicants rely on the invalidity of
the deed of donation for their claim.
[24]
I take note of the suspicious copy of the deed of donation, because
of the discrepancy of dates between the date of death of
the deceased
and the date of signature. The failure by the applicants to explain
the whereabouts of the original deed of donation
and the failure by
their attorney to file a confirmatory affidavit or explanation as to
why this important document to the applicants'
case only surfaces at
the eleventh hour cannot assist matters.
[25]
The second respondent disputes that the first applicant informed her
about the deed of donation on her two visits to the property.
Instead on the first visit of the second respondent in company
of one Shadrack an estate agent, the first applicant
was
glad to show them the property and never
appeared surprised about the sale
of
the property. She went to the extent of showing the first respondent
and Shadrack the outside rooms where the tenants
resided. There is no
counter argument submitted on behalf of the applicants in this
regard.
[26]
According to the second respondent she never met the first
respondent as the sale of property was concluded through Shadrack,
the
estate agent. As a result the second respondent's inability to
contact the first respondent has hindered the second respondent to
obtain a confirmatory affidavit.
[27]
The conduct of the applicants is not acceptable. The
applicants could not explain their inaction for almost 12 years, as
the applicants
state that the first applicant was appointed as the
administrator of her mother's estate in 2004. In 2007 the first
applicant was
harassed by the sons of Mrs Hlongwane who claimed the
property as their mother's house and in 2008 she got to know about
the intended
sale of the property and failed to act until the
property was transferred. Despite all the above knowledge the
applicants did not
take action.
[28]
Having regard to the above I find that the respondents are
bona fide purchasers. There is no reason why the defence of estoppel
cannot be upheld, because the success of the defence of estoppel in
the present matter will not result to what is legally impermissible.
In fact it is the second and the third respondent's legally founded
right to have the property registered in their own names. In
passing,
my view is that the applicants have a recourse against Mrs Hlongwane.
As alluded above it seems as if the applicants know
her better.
[29]
In the result the application is dismissed with costs.
APPLICATION
UNDER CASE NUMBER 14614/2009
[30]
Section 4(1) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act of 1998 ("PIE") provides:
"Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.
[31]
Section 4 (7) of PIE provides:
"If an unlawful
occupier has occupied the land in question for more than six
months at the time when the proceedings
are
initiated,
a
court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering all the relevant
circumstances, including, except where the land is sold in
a
sale of execution pursuant to
a
mortgage,
whether land has been made available or can reasonably be made
available by
a
municipality or other organ of state or another
land owner for the relocation of the unlawful occupier, and including
the rights
and needs of the elderly, children, disabled
persons and households headed by women."
[32]
The first respondent in the eviction case is Sarah Hlongwane who does
not stay in the property. The second respondent, Ms Macy
Ramoraswi
made submissions in respect of her and other unlawful occupiers
'personal circumstances. The only concern raised by the
unlawful
occupants is that their respective minor children stays with them.
She does not state why they cannot find alternative
accommodation,
rather states that she is a single parent looking after her child
although he is a major. It's common cause the
unlawful occupiers knew
about the sale of the property in 2008
[33]
The applicants in the eviction case are
bona fide
purchasers,
who have been paying the bond instalments since 2008. The first
applicant also has a minor child. The applicants bear
heavy financial
burden because they have been carrying cost of their current
accommodation and have to pay bond instalment to the
fifth respondent
since 2008. The personal circumstances of the applicants far outweigh
those of the respondents (who are unlawful
occupiers).
[34]
Having regard to the above I find that it is just and equitable for
the respondents in the case of eviction to vacate the property.
[35]
In the result it is ordered that:
[35.1] The first and/or
second and/or third respondents and all other persons
occupying the premises through the first
and/or second and/or third
respondents is to vacate the property situated at […],
Mamelodi West, Gauteng within 30 days
of this order;
[35.2] In the event
that the first and/or second and/or third respondents and all other
persons occupying the premises through
the first and/or second and/or
third respondents fail to vacate the property, above, as per
paragraph [35.1] the Sherrif of the
High Court, Wonderboom is
authorized and ordered to evict the first and/or second and/or third
respondents and all other persons
occupying the premises through the
first and/or second and/or third respondents from the said property;
[35.3] The first and
second respondents to pay the costs of this application, jointly and
severally, the one paying the other to
be absolved.
N.P.
MALI
JUDGE
OF THE HIGH COURT
Case
number:
37227/2011
Counsel
for the Applicants:
Adv J Jooste
Instructed
by:
DYSON INC
Counsel
for 2•d respondent:
Adv N Erasmus
Instructed
by:
SHAPIRO & SHAPIRO INC
Counsel
for 5th respondent:
Adv H Smit
Instructed
by:
CLIFFE DEKKER HOFMEYER
Case
number:
14614/2009
Counsel
for the Applicants:
Adv N Erasmus
Instructed
by:
SHAPIRO & SHAPIRO INC
Counsel
for 2nd respondent:
Adv J Jooste
Instructed
by:
DYSON INC
MATTER
HEARD ON:
28 July 2016
DATE
OF JUDGMENT:
2 December 2016
[1]
See J8 page 73 of the paginated papers
[2]
See Paragraph 6.2 of the supplementary affidavit
[3]
1986(4) SA 479 (W)
[4]
2008 (3) SA (1) SCA