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[2015] ZAGPPHC 92
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Ndala and Another v Moleele and Others (69254/2011) [2015] ZAGPPHC 92 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE NO:
69254/2011
DATE:
13
FEBRUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
IN
CONVENTION
:
PHILEMON
NDALA
............................................................................................................
1
st
APPLICANT
NELLY
NDALA
....................................................................................................................
2
nd
APPLICANT
And
MICHAEL LESONYA
MOLEELE
.................................................................................
1
st
RESPONDENT
SHIRLEY SHUBI
ELSIE
MOLEELE
............................................................................
2
nd
RESPONDENT
JOHN SEBELANE
MABUA
............................................................................................
3
rd
RESPONDENT
RESHOKETSWE EMILY
MABUA
...............................................................................
4
th
RESPONDENT
CITY OF TSHWANE
MUNICIPALITY
........................................................................
5
th
RESPONDENT
IN
RECONVENTION
SHIRLEY SHUBI
ELSIE MOLEELE N.O
As Executrix in
Estate Late
MICHAEL
LESONYA MOLEELE
…................................................................................
1
st
APPLICANT
(In
reconvention)
SHIRLEY
SHUBI ELSIE
MOLEELE
................................................................................
2
nd
APPLICANT
(In
reconvention)
And
PHILEMON
NDALA
........................................................................................................
1
st
RESPONDENT
(In
reconvention)
NELLY
NDALA
................................................................................................................
2
nd
RESPONDENT
(In
reconvention)
JOHN
SEBELANE
MABUA
............................................................................................
3
rd
RESPONDENT
(In
reconvention)
RESHOKETSWE EMILY
MABUA
...............................................................................
4
TH
RESPONDENT
(In reconvention)
CITY OF TSHWANE
MUNICIPALITY
........................................................................
5
TH
RESPONDENT
(In reconvention)
REGISTRAR OF
DEEDS,
PRETORIA
..........................................................................
6
TH
RESPONDENT
(In reconvention)
CONVEYANCER
NAKKIE DU
TOIT
...........................................................................
7
th
RESPONDENT
(In
reconvention)
ATTORNEY AO
NDALA
.................................................................................................
8
TH
RESPONDENT
(In reconvention)
JUDGMENT
RAULINGA J,
[1] This application
concerns the eviction of the first and second respondents (in
convention) from a residential property known
as Erf 1426, Mabopane
Unit U, held by Deed of Grant No 1722/91 (hereinafter referred to as
the ("the property"). The
property was transferred into and
is registered in the names of the first and second applicants. It
also concerns contempt of court
order against the first applicant (in
convention) and the third and fourth respondents (in convention).
[2] The parties
herein are referred to as follows for purposes of clarity and ease of
reference:
(i) The first and
second applicants in convention, also being the first and second
respondents in reconvention, as the "Ndalas";
(ii) The first and
second respondents in convention, also being the first and second
applicants in reconvention as the Moleeles;
(iii) The third and
fourth respondents in convention, also being the third and fourth
respondents in reconvention, as the "Mabuas";
and
(iv) The eighth
respondent in reconvention as "Attorney Ndala".
[3] It can be
mentioned that Mrs Moleele N.O (the second respondent in convention,
also appears as the first respondent, in convention
in her capacity
as Executrix in the Estate of the late Michael Lesonya Moleele since
the demise of her husband.
[4] This matter is
more than 10 years old and has been repeatedly to court with numerous
court orders made by different judges.
[5] The chronology
of events in this matter is as follows:
On the 16 September
2001 the Moleeles and Mabuas concluded a Deed of Sale. It is prudent
to mention that the first Deed of Sale
for the purchase price in the
sum of R179 705.51 is incorrect because this was the amount that was
owed to Standard Bank by the
Mabuas. The correct amount of the
purchase price is to be found in the second Deed of Sale in the sum
of R300 000.00. In terms
of this Deed of Sale the payment of the
purchase price was to be made as follows:
“
3.1
An amount of R200 000.00 shall be paid to the bank being Standard
Bank as the full and final settlement of the bond plus water,
rates
and taxes and electricity expenses;
3.2 The remaining
balance (sic)of will be paid as follows: The house situated at 715
Block U Mabopane which is worth R80 000.00
will be used as a form of
payment;
3.3 The amount of
R20 000 shall be paid to the sellers in cash during the end of
November 2001.”
[6] On the 2 March
2006 the Mabuas and the Ndalas concluded a Deed of Sale on the same
property for the purchase price in the sum
of R380 000.00. The sum of
R295 000.00 was paid on the same day as a deposit. This Deed of Sale
preceded a sale in Execution by
Standard Bank against the Mabuas
after the Moleeles had omitted to make a payment on the property.
[7] On the 7 July
2006, having learnt of the Deed of Sale between the Mabuas and the
Ndalas, the Moleeles launched an interim interdict
on the 7 July
2006, against the Mabuas. As a consequence, on the 19 June 2008 the
Moleeles and the Mabuas concluded a Deed of Settlement
still for the
purchase price in the sum of R300 000.00.
[8] The Deed of
Settlement of 19 June 2008 was made an order of Court. Clause 1 of
the Deed of Settlement provides as follows:
"1. The
parties shall perform afresh in terms of the second deed of sale
dated 16 September 2001 between the parties, for which
purposes the
parties confirm that defendant (the Mabuas respondents) shall be
regarded as having sold the property situated at
1426 U, Mabopane
('1426 U') currently occupied by the plaintiffs (the Moleeles
respondents) to the plaintiffs for an amount of
R300 000.00 (three
hundred thousand rand) payable by the plaintiff-
1.1 by means of
the property situated at 715 U Mabopane (715 U), currently occupied
by the defendants (Mabua respondents) at the
agreed price of R80
000.00 (eighty thousand rand), transferable into the name of the
defendants (Mabua respondents) or any possible
buyer from them as
provided for infra, plus
1.2 R220 000.00
(two hundred and twenty thousand rand) cash against transfer of 1426
U into the names of the plaintiffs (the cash
amount)
2. The plaintiffs
shall within 30 days(thirty days) from the date of this settlement
secure the payment of the said Cash Amount
with bank guarantee
payable against transfer of 1426 U into the name of the plaintiffs,
which bank guarantee shall be acceptable
on the face value thereof".
[9] Despite the
Court Order of the 19 June 2006, which interdicted the transfer of
the property and the Deed of Settlement of 30
July 2008, the Mabuas
and Attorney Ndala proceeded to transfer the property in terms of a
Deed of Sale dated 2 March 2006. One
must be mindful of the fact that
in terms of the Deed of Settlement, the attorneys for the Moleeles
were to handle the transfers
of both properties. It was not incumbent
upon Attorney Ndala to handle the transfers.
[10] As matters
stand, the Mabuas and Moleeles sold their houses to each other and
moved to and from both sides prior to transfer
having taken place.
The Mabuas occupy the Moleeles' house and in turn the Moleeles occupy
the Mabuas' house.
[11] The Ndalas
contend that the Moleeeles have failed to effect payment of the
balance of the purchase price in the sum of R220
000.00. That under
the circumstances the settlement agreement dated 19 June 2008 has
lapsed in terms of clause 8 of the deed of
settlement and the parties
are entitled to retake possession of their respective properties.
[12] I agree with
counsel for the Moleeles that the application in convention is
essentially and predominantly dependent-
(a) on three very
simple and basic factual questions, namely whether in fact there had
been proper performance in terms of the prevailing
deed of settlement
of 19 June 2008 which on 19 June 2008 was made an order of court; and
(b) the legal
question, namely -
(i) whether the
Moleeles in fact had paid R220 000.00 into the relevant transfer
attorney's trust account - attorney Nel still holds
the funds on
trust as the conveyancer for the two simultaneous transfers
concerned.
(ii) whether such
payment ( if found to have been made) complies with the said deed of
settlement;
(d) accordingly
whether the said deed of settlement and Court Order remained and are
still operative requiring Erf 1426, Mabopane
U - the "Mabua
Property" to be registered in the name of the Moleeles; and
(e)
whether the transfer of the property into the names of the Ndalas was
irregular, or not, and if so, had been void or voidable,
and if so,
the application in convention should be dismissed and the application
in
reconvert
tion
should be granted.
[13] A considered
view I have taken is to deal with the matter holistically and not
piecemeal in terms of Rule 33(4) as suggested
by Counsel for the
Moleeles. There is also no need to embark on a point of limine
concerning the question of fact.
[14] However, again,
I agree with Counsel for the Moleeles that, the Mabuas' court
settlement did not and could not have prescribed
payment of R220
000.00 prior to registration of transfer, but required the delivery
of a bank guarantee for R220 000.00 payable
against transfer of the
property in the name of the Moleeles. The claim that such non-payment
caused the settlement with its court
order to have lapsed is thus
unfounded, irrational and irrelevant in the application in
convention. The letter of 30 July 2008
from Mr Dibakoane to Nel
&Claassen Attorneys who were the Moleeles' attorneys confirms
that timeous in terms of clause 2.2(a)
meant on or before 14H00 on 30
July 2008:
"You are
further notified that, since your clients have failed to meet their
obligations in terms of the settlement agreement,
more specifically
clause 8 (eight) thereof, the order shall lapse 14H00 pm the 30
th
July 2008.
In the event your
clients fail to provide us with a bank guarantee by 12HOO pm on the
30 July 2008, your clients should vacate our
clients' property with
immediate effect before 14H00 pm 31 of July 2008 since our clients
would like to retake possession and occupy
their property being 1426
Unit U Mabopane".
[15] The fact that
the payment was made timeously is attested to by a letter from Nel
&Claassen to Dibakoane Attorneys c/o Ndala
Attorneys dated 31
July 2008 in which Mr Nel states that the Moleeles deposited a Bank
Guarantee cheque in the amount of R220 00.00
into their Trust Account
on 28 July 2008, and also attached their Trust receipt. It is
immaterial whether the Moleeles provide
a Bank Guarantee or a Bank
Guarantee Cheque. In fact a Bank Guarantee cheque is equivalent to a
cash payment. It is also irrelevant
whether the cheque was issued by
the Bank or the Trust. The issue is that the bank had originally
issued a Bank Guarantee Cheque
to the Conveyancer.
[16] It must also be
noted that at the time the Mabuas raised this issue, a Deed of Sale
was already concluded between them and
the Ndalas on the 2 March
2006. Further there existed a Deed of Settlement which was made an
order of court on the 19 June 2008.
The interim interdict of 7 July
2006 was still in force. Since the payment was made timeously, the
interim interdict and the Deed
of Settlement never lapsed. The Ndalas
were therefore not entitled to have proceeded with any transaction to
acquire the property
against the said Deed of Settlement that was
made an order of court. The Mabuas - Ndalas' Deed of Sale and
subsequent transfer
thus violated the Mabuas - Moleeles Deed of
Settlement and is irregular which must be set aside. It is therefore
not just and equitable
for the Ndalas to obtain an eviction order
against the Moleeles.
[17] I now turn to
deal with the application in reconvention. Since some of the
substantial issues in the application in reconvention
have been dealt
with in the application in convention above, in this part I will
concentrate only on issues that I think were not
considered in the
application in convention.
[18] In their
affidavit, dubbed "Replying and Answering Affidavit", the
Ndalas state (sic) 'the reason for this is that
the respondent has
launched a counter -application and this affidavit will serve both as
an answering affidavit to the counter-application
and as a replying
affidavit to those aspects that bear a reply to my application'.
However,
this constitutes an irregularity because they conveniently sneak new
evidence into the application in convention, which
they are not
entitled to do - See paragraph 3 page 123-132 of the record- Volume
1. New aspects intended to apply as answer to
the counter application
cannot be argued in favour or in respect of the application in
convention if and when they were not raised
in the founding
affidavit. The new matters raised in this affidavit are rejected. In
the same vein, the triplicating affidavit
cannot be allowed because
it does not comply with Rule (6)(5)(e) which provides that a Court
may in its discretion permit the filing
of further affidavits. The
Registrar is not empowered to exercise discretion and a party cannot
take it upon himself to simply
file further affidavits without first
having obtained the leave of the Court to do so. It has been held
that where further affidavits
are filed without leave of the court,
the court can regard such affidavits as
pro
non scripto.
See
Erasmus et al "Superior Court Practice" at B 147. The
triplicating affidavit is accordingly disallowed.
[19]
The argument by the Ndalas that the Moleeles were unable to pass
transfer of their property to the Mabuas because it was registered
in
the City of Tshwane Municipality names, has been overtaken by events.
The Moleeles obtained transfer of erf 715 Mabopane Unit
U on the 17
February 2012. They are now able to transfer that property to the
Mabuas. I agree with Counsel for the Moleeles that
the previous onus
where an owner had to prove his ownership with proof of occupation of
his property by a respondent upon which
the respondent carried a
severe onus that his occupation was lawful, no longer prevails. It is
the defendant and not the owner
-plaintiff who relies on the lease,
and if the lease itself is denied by the defendant, as in the present
case, the allegation
of the lease is surplusage -
Letty
v Naidoo 1947(3) SA13 (A).
In
casu, ownership, if any, was obtained irregularly and such ownership
is artificial. The transaction between the Mabuas and Moleeles
is
res iudicota
and
unassailable. It is governed by a Court Order which prevails over any
other dealings.
[20]
The Ndalas contend that the agreement concluded between the Moleeles
and the Mabuas on 19 June 2008 is not a bona fide agreement.
They
rely on the maxim qui prior est tempore, which they aver has not been
elevated to the status of a rule of law. However, the
Moleeles submit
that the law in terms of the choice of preference between double
contracts of sale in the respect of the same property
has become well
developed. I agree with this submission. The deciding question is
whether transfer of the property has taken place
or not. Prior to
transfer the
maxim
qui priori est tempore potior estiure
normally
prevails. See
Wahloo
Sand Bk en Andere
v
Trustees, Humbly
Parker Trust, en Andere 2002(2)
S/A
776(SCA).
The
principle was not applicable only to double sales but also to
conflicting personal rights in general. The law construes fraud
by
the transferee that obtained transfer of the property with the
knowledge of another prevailing deed of sale, yet only mere knowledge
of such prevailing deed of sale is all that is required to be proven
for the setting aside of the transfer. If a seller concludes
a
contract of sale with a third party contrary to a preemptive right
the purchaser can step into the shoes of the third party by
a
unilateral declaration of intent. A Contract of Sale will then be
deemed to have been concluded between the seller and the holder
of
the pre-emptive right. Should delivery already have taken place, the
holder of the right would not be able to pursue the merx
in the hands
of the third party with his personal right, unless the latter was
aware of the existence of the pre-emptive right
-
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte
Backeiselen (Pty) Ltd en Andere 1983(3)893 SA (AA).
I
am minded to mention that the
qui
priori est maxim
is
not inflexible as it is subject to fairness between the parties. The
maxim should not be applied unfairly.
[21] In the present
scenario, the Ndalas, the Mabuas and the Attorney Ndala were aware of
the transactions that had been concluded
between the Moleeles and the
Mabuas. They were aware that the Deed of Settlement of the 19 June
2008 was made an order of court.
They were also offaire with the
existence of the interim interdict of the 7 July 2006. Therefore the
Mabuas -Ndalas' transfer was
conducted irregularly and is void.
[22]
For the civil contempt of court order to survive constitutional
scrutiny in a form of a motion court application, the applicant
must
prove the requisites of contempt (the order, service or notice;
non-compliance; and wilfulness and mala fides) beyond reasonable
doubt. Once the applicant has proved the order, service or notice and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides.
Fakie
NO v CC11 Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42.
[23] My observation
in this matter is that both the Mabuas and Ndalas might have seen the
woods for the trees. They misinterpreted
the Deed Settlement and
Court Order of 30 July 2008 and misunderstood the implications of the
interim interdict of 19 June 2006.
I am not convinced that the
Moleeles, as applicants in this instance, have proved beyond
reasonable doubt the presence of wilfulness
and mala fides. I am
however convinced that the Mabuas and Ndalas committed a serious
irregularity but that may not amount to contempt
of court.
[24] In the premises
I make the following order:
(a) The application
in convention is dismissed as a whole.
(b) Prayer (a) in
the notice of motion in reconvention is granted in the following
terms:
That the Deed of
Transfer number 00167211 dated January 2011 in respect of Erf 1426
Mabopane -U township herein "the Property")
in favour of
the 1
st
and 2
nd
Respondents( in reconvention)
be cancelled;
(c) Prayers (b), (c)
(d and (e) in the notice of motion in reconvention are granted.
(d) Prayers
(f)(g)(h)(i)(j)(k)(l)(m) and (n) are dismissed.
(e) The costs of the
application in convention are to be paid by Attorney Ndala in the
firm Ndala Attorneys, de bonis propiis, including
the reserved costs.
(f) The 1
st
,
2
nd
,3
rd
, 4
th
and 8
th
respondents (in reconvention) shall bear the costs of the application
in reconvention, jointly and severally the one paying the
other to be
absolved in respect of the paid portion, on an attorney and own
client scale.
TJ RAULINGA
JUDGE OF THE
NORTH GAUTENG HIGH COURT