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[2015] ZAGPPHC 89
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Shibambo and Another v Pitje and Another (77700/2010) [2015] ZAGPPHC 89 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 77700/2010
DATE: 17 FEBRUARY
2015
IN THE MATTER
BETWEEN
JOSIAH OUPA
SHIBAMBO
................................................................................................
First
Applicant
ESTHER VELEMINAH
SHIBAMBO
.............................................................................
Second
Applicant
and
I R
PITJE
............................................................................................................................
First
Respondent
CITY OF TSHWANE
METROPOLITAN
....................................................................
Second
Respondent
MUNICIPALITY
JUDGMENT
LEGODI,J
[1] The dispute in
this matter was prompted by the sale of one and the same immovable
property to two different persons. The second
purchaser in whose
names transfer was registered seeks to evict the first purchaser from
the property in question. The first purchaser
happens to be a brother
to the seller. The first purchaser is in occupation of the property
used as primary residence.The seller
is not a party to the present
proceedings.
[2] The eviction is
resisted. The main grounds for resisting the eviction are that the
sale agreement between the first respondent
(the first purchaser) and
his brother (the seller) in respect of the property is valid and
enforceable. It is further contended
that the applicants (second
purchasers), are not bona fide purchasers and that they have no
better right over that of the first
purchaser. In other words, the
transfer of the property into the names of the applicants did not
confer unassailable right to them.
[3] I find it
necessary to deal with the latter aspect first, preceded of course,
by a brief background. On the 3 September 2001
a written sale
agreement was concluded between the first respondent and his brother
in respect of a property described in the pleadings
as ERF 4157
MAMELODI TOWNSHIP, REGISTRATION DIVISION JR, PROVINCE OF GAUTENG
(Physical address; HOUSE 4157 BLOCK M, MAMELODI, PRETORIA).
[4] The agreement
had one of the usual suspensive conditions. For example , the first
agreement was subject to a suspensive condition
that a loan of R63
000 secured by a Mortgage Bond to be registered over the property, is
obtained by the first purchaser within
a period of 14 days from the
last date of signature, being the 3 September 2001.
[5] Under SPECIAL
CONDITIONS written by hand in the agreement, is recorded as follows:
“
Should
the said loan not be secured, then the purchaser is irrevocably
authorised by the seller to make whatever arrangements with
NEDCOR
Bank Ltd. The current bond holders, to liquidate the outstanding
amount on the bond until the above purchase price is paid
in full,
whereupon the transfer shall be given to the purchaser as aforesaid”.
[6] The handwritten
addition to the agreement is disputed by the seller who had filed a
supporting affidavit to the applicant’s
replying affidavit. On
the 1 December 2009 an offer to purchase the said property was
concluded between the applicants and the
seller. On the 7 July 2010
transfer into the names of the applicants took place.
[7]
One is remanded of the ‘doctrine of notice’ and the
'doctrine of bona fide purchaser’. If A and B enter into
an
agreement which entitles A to have a servitude registered over the
land of B, A has a personal right to claim that B should
co-operate
in procuring registration of the servitude, as this is a requirement
for the creation of the real right that A has bargained
for. Once
registration has taken place, any subsequent purchaser of the land
will be bound by the servitude. If however, B should
sell his land
and transfer property to C before registration, C would normally not
be bound to give effect to the servitude. But,
if C had knowledge of
A’s unregistered servitude at the time the contract of sale was
entered into between B and C, C will
be bound not only to give effect
to the servitude, but also to co-operate in having the servitude
registered
1
.
That is,
‘
the
doctrine of notice’.
[8]
Similarly, if a seller A sells a thing, be it movable or immovable to
B and subsequently sells same thing to C, ownership is
acquired, not
by the earlier purchaser, but by the purchaser who first obtains
transfer of the thing sold. If the first purchaser,
B, is also the
first transferee, his or her right is unassailable. If the second
purchaser, C, is the first transferee, his or
her right of ownership
is equally unassailable,
if
he or she had
purchased
without knowledge of the prior sale to B
.
But,
if
C had purchased with such
prior
knowledge, B is entitled to claim that transfer to C be set aside
so
that
ownership
of
the
thing sold can be transferred to B
2
.
The underlining is my own emphasis.
[9] Now using the
same examples as above, two things must happen in the present case in
order to avert the eviction. The first respondent,
being the first
purchaser, must allege and prove that the applicants had prior
knowledge of the agreement concluded on the 21 September
2001 between
himself and his brother. Secondly, he must have the transfer of the
property into the names of the applicants set
aside.
[10] In paragraph 12
of the answering affidavit, the relevant averments are made as
follows:
“
12.6
The applicants have known or alternatively, sought to have known in
detail of my claim to the right to own my residence flowing
from the
said Deed of Sale I have duly concluded with my brother M H Pitje”.
[11] These averments
without more, in my view, do not come closer to establishing as a
fact that the applicants had a prior knowledge
of the sale thereof.
But, clearly, the first respondent is uncertain whether or not
applicants had such a prior knowledge. ‘Alternatively
ought to
have known in detail of my claim...,’ in my view, points to
such uncertainty. He should therefore be found not to
have discharged
the onus in this regard. The applicants are found to be bona fide
purchasers.
[12] Now, coming
back to the other issue referred to in paragraph [9] above, the first
respondent knew as way back as 2010 that
the property has been
transferred into the names of other people. On his own version, he
knew in July 2010 that the property had
been sold. He received a
letter from the applicants’ attorneys to this effect. The first
respondent contacted his lawyers
on the 6 August 2010, but, to date
no application to set aside both the first agreement and the
transfer. I am not satisfied that
the first respondent seriously
wanted to pursue such an application.
[13] Initially, the
first respondent wanted to suggest that the applicants were not
entitled to the relief sought because there
was no compliance with
section 4 of Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act NO 19 of 1998.. It
is not correct. Such a
notice was given and the order in this regard was granted. In any
event, counsel for the first respondent
did not pursue the point.
[13] There is of
course another application. This is an application in terms of Rule
30A launched by the first respondent. He wants
certain portion of the
replying affidavit to be struck out. The allegations are that the
applicants introduced new facts in their
replying affidavit to which
they are not entitled to do. Paragraphs 11,12 and 14.6 of the
replying affidavit were cited as the
cause of the complaint.
[14] In paragraph 11
of the replying affidavit the first applicant as a deponent thereto
attached a confirmatory affidavit of the
second applicant, his wife.
In it, the second applicant confirms that she is the second applicant
and that she was supporting her
husband in the application for
eviction. This was prompted by the suggestion in the answering
affidavit that there was no basis
to cite her as an applicant. I am
unable to see how this can be a new fact. The same applies to
paragraph [12] of the replying
affidavit. Here the applicants
attached the tittle deed. In the founding affidavit, the applicants
averred that they were the registered
owners of the property in
question. The first respondent in the answering affidavit sought to
question this as being inadequate
because no proof of ownership was
annexed to the founding affidavit. This cannot be a new fact
introduced in the replying affidavit.
[15] The last
complaint is about paragraph 14.6 of the replying affidavit. In this
paragraph, for the first time the applicants
alleged that the first
respondent has alternative accommodation in that he has been granted
an approval in his application for
a government house. The first
respondent’s application for the house is said to have been
approved in March 2008 and that
one of the requirements for such
housing is that one may not be an owner of another house. The
suggestion was that the first defendant
is therefore having an
alternative accommodation.
[16] I do not find
it necessary to deal with the merits or otherwise of the point taken
in this regard, seen in the light of my
finding regarding the
doctrine of notice and bona fide purchaser and failure to set aside
the second sale agreement and transfer
of the property into the
applicants’ names. Had it not have been for the finding, one
would have been inclined to grant the
first respondent opportunity to
file the fourth affidavit.
[17] Consequently,
an order is hereby made as follows:
17.1 The first
respondent and all those holding under him, are hereby ejected from
the property ERF 4157 MAMELODI TOWNSHIP, REGISTRATION
DIVISION JR,
PROVINCE OF GAUTENG; (Physical address: HOUSE 4157, BLOCK M MAMELODI,
PRETORIA);
17.2 The first
respondent to pay the costs of the application.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR THE APPLICANTS:
ADV. N van NIEKERK
INSTRUCTED BY:
MACROBERT INC.
MacRobert Building
Cnr. Charles
& Duncan Street
BROOKLYN, PRETORIA
Ref: R
Suliman/FC/1012214
TEL: 012 425 3400
FOR THE RESPONDENT:
F S KABINI & ASSOCIATES INC.
Suite 200, 2
nd
Floor,
JSL Towers Building
259 Pretorius Street
PRETORIA
TEL: 012 756 5339
Ref:
KAB/PIT/363/12/2011
HEARD ON: 03
FEBRUARY 2015
JUDGEMENT
HANDED DOWN: 17/02/2015
1
Bowring
v Vrededorp Properties cc and Another
2007
[5] SA 391 ( SC A) at 394 paras [7] and [8].
2
Bowring
supra
at
395 para 11