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2015
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[2015] ZAFSHC 15
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Rosey and Others v Semppe and Others (2193/2013) [2015] ZAFSHC 15 (29 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2193/2013
In
matter between:
SEBOTSA
KEDIBONE ROSEY
…..................................................................
1
st
Plaintiff
JOYCE
KELEBOGILE DAVIDS
…...............................................................
2
nd
Plaintiff
PULANE
ALINAH MATUTU
….....................................................................
3
rd
Plaintiff
SUSAN
NKAKI
…..............................................................................................
4
th
Plaintiff
And
TSHEPO
HUMPHREY
SEMPPE
...............................................................
1
st
Defendant
TUMELO
PATGAVIAN
COANGAE
.........................................................
2
nd
Defendant
KEDIBONE
ROSEY COANGAE
…........................................................
3
RD
Defendant
THE
REGISTRAR OF DEEDS
…..............................................................
4
th
Defendant
JUDGMENT
BY:
MOLEMELA, JP
DELIVERED
ON:
29 JANUARY 2015
[1]
This matter concerns a dispute between members of a family about the
ownership of a house that the second and third defendant
sold to the
first defendant. The relief sought by the plaintiff is an order
declaring the deed of sale entered into between
the first defendant,
as the purchaser, and the second and third defendants as sellers,
invalid and setting it aside. In addition
the plaintiffs seek
an order compelling the Registrar of Deeds (4
th
defendant) to register the immovable property in question in the
names of the plaintiffs. Only the first defendant is defending
the
matter.
[2]
It is common cause that the first plaintiff, who died before the
hearing of the matter, was the mother of the first, second
and third
plaintiffs. She was also the mother of the 2
nd
and 3
rd
defendant’s biological father, the late Mr Pule Coangae (“the
deceased”) who died on 2 June 2007. This means
that the 2
nd
,
3
rd
and 4
th
plaintiffs
are 2
nd
and 3
rd
defendants’ aunts. On the 17
th
August 2007, the Master of High Court issued letters of authority to
the 2
nd
defendant and identified both the 2
nd
and 3
rd
defendants as the intestate heirs in the deceased’s estate.
The assets identified as the property belonging to the
estate
was immovable property (the disputed property) and furniture.
Purportedly acting on the strength of the letters of authority,
the
2
nd
and 3
rd
defendant sold the disputed property to the 1
st
defendant on the 3
rd
September 2008. It is not disputed that the Master of the High Court
subsequently addressed letters to the 2
nd
defendant. In the first letter, dated 9 June 2008, the 2
nd
defendant was instructed to return the letters of authority to the
Master. In the second letter, dated 11 November 2008, he (the
second
defendant) was advised that the letters of authority issued on 17
August 2008 had been withdrawn.
[3]
The main issues that are to be decided in this matter are whether the
Master’s letter dated 9 June 2008 constituted a
withdrawal of
the letters of the authority as averred by the Assistant Master.
The second issue is whether the letter in
question had come to the
attention of the 2
nd
defendant before the date of signature of the deed of sale in terms
of which the disputed property was sold to the 1
st
defendant. The third issue is whether the 1
st
defendant knew that the second defendant was not entitled to sell the
property in question to him.
[4]
The 2
nd
plaintiff, namely Ms Joyce Davids testified that the disputed
property was a family home that had actually belonged to her parents
but was registered in the name of the late Pule Coangae (the
deceased) due to the custom of primogeniture as he was the male
child.
His brother late Pule Coangae passed away in June 2007.
The family assumed that the deceased had died intestate. In
accordance
with the customs practiced by her family, the deceased is
property was, after his death, not tampered with at all for a period
of a year. In June 2008 furniture that used to belong to the
deceased was moved outside so that his room could be cleaned.
While the cleaning was in progress, her sister, the third plaintiff
called her and told her that she had found a sealed envelope
under
the deceased’s mattress. She (i.e the second plaintiff)
opened the envelope and discovered that the envelope
contained a
Will. In terms of the Will the deceased had bequeathed all his
property to the plaintiffs.
[5]
After reading the Will, she and her sisters decided to go to ABSA
Bank since ABSA Trust Ltd was the nominated executor in terms
of the
Will. ABSA Bank referred them to the office of the Master. The
Master informed them that letters of authority had
already been
issued to the second defendant. The Master undertook to
withdraw the letters of authority.
[6]
She testified further that she knew the first defendant. During
June 2008 the first defendant had made, an attendance
at the disputed
home he was there to view the house as he, had learned that it was
for sale. She (2
nd
plaintiff) informed him that the property was not for sale and
offered to show him the contents of the will, which he declined.
During September 2007 the second defendant returned to the property
and informed her that he had purchased the property from the
second
and third defendant.
[7]
The 3
rd
plaintiff also testified and corroborated the 2
nd
plaintiff in material respects. Ms du Pisanie, the Acting
Assistant Master of the High Court was also called as a witness.
She
testified that two different files had been opened at the Master’s
Office related to the estate of the deceased.
The first file
was opened on 17 August 2007 and letters of authority were issued to
2
nd
defendant on the same day. The second file was opened
at the Master’s Office on 20 November 2007. She testified
that
when the second file was opened, the Master’s Office had
been unaware that another file had already been opened. When
the Master’s Office discovered that two files had been opened
and that the deceased had apparently left a Will, they issued
a
letter dated 9 June 2008 to the 2
nd
defendant. The
letter read as follow:
“
I
refer to the above matter and would like to bring to your attention
that you have to furnish us with the Original letter of Authority
which was issued on 17 August 2007. The reason is that there is
a Will which was drawn by testator which determines the heirs.
Kindly provide us with that letter within a period of 14 days.
Should you not avail yourself the letter will be declared
invalid and
further use will be an offence.”
[8]
She testified that the Master’s Office received no response
from the 2
nd
defendant and proceeded to direct another
letter to him on 11 November 2008. This letter read as follows:
“
My
letter dated 8 June 2008 refers. See attached letter for your
reminder. Please be advised that since I have not received
any
response from yourselves the letters of Authority issued to you on 17
August 2008 have been withdrawn. Note that any
further use
thereof will be unlawful and that you and your sister are not the
lawful heirs (owners) of 2991 Mothibi Street, Phelindaba,
Bloemfontein and the furniture.”
[9]
Under cross-examination she testified that even though the first
letter did not expressly state that the letters of authority
were
witdrawn, this is what the letter implied. She could not explain why,
if that was the case, the Master had months later written
another
letter stating that the letters of authority were withdrawn on
account of the 2
nd
defendant’s failure to respond to the first letter.
[10]
The first defendant testified that during September 2008, his friend
informed him that the disputed property was for sale and
that an
attorney by the name of Thoabala was the agent in charge of the sale
of the property in question. He then went to Mr Thoabala’s
office, who duly furnished him with the address of the disputed
property so that he could go and view it. He went to the
disputed property and found that the main house was locked. There was
a shack on the premises and the occupant of the shack informed
him
that the owner of the house was not present. He could not access the
disputed property and thus only inspected its exterior.
He knew that
the house was a four-roomed house and was satisfied with its
condition as well as its location. He decided to buy
it.
[11]
He went back to Mr Thoabala and informed him of his decision. Mr
Thoabala drafted the necessary documents and then asked him
to
deposit the purchase price of R100 000.00 into his trust
account. He obliged. He met the 2
nd
and 3
rd
defendants for the first time at Mr Thoabala’s office on the
day he went to sign the deed of sale. The disputed property
was
subsequently transferred into his name. He received the
title-deed in October 2008. He subsequently went to the
disputed property to inform its occupants that he was the new owner.
The tenant that he found at the premises referred him to the
second
plaintiff. The second plaintiff was surprised when he showed
her the title-deed. That was the first time he
learnt that
there was a dispute about that property. He denied having had any
discussion with the 2
nd
plaintiff about the property in question in June 2008. He was adamant
that he only had a discussion with the second plaintiff after
the
property had already been registered in his name and that after
September 2008. He maintained that when he bought the
house he
did not know that the 2
nd
and 3
rd
defendant were not entitled to sell the house.
[12]
The second defendant, namely Tumelo Coangae testified that he had
lived with both his parents at the disputed property before
their
divorce. According to him, none of the plaintiffs had ever
resided at the disputed property. After his parents’
divorce, his mother and his sister left their home. He
continued living there with his father (the deceased) until his
father’s
death. After his late father’s funeral,
the 3
rd
plaintiff chased him out of the house. He went to the Municipality to
enquire about the ownership of the disputed property.
He was
told that it was registered in his father’s name.
After the deceased’s
estate had been reported at the Master’s
office, letters of authority were issued to him. He had
discussions with the
family and eventually had discussions with the
2
nd
defendant. He then sold the house to him.
[13]
He testified that after the letters of authority had been issued, did
not receive any correspondence from the Master. He pointed
out that
he could not have received such letters as he did not reside at the
disputed property since the third plaintiff had “chased
him
away” after his father’s funeral.
[14]
He testified that did not know that his father had left a valid
Will. He conceded that during July 2008 there was an
altercation between him and the plaintiffs and the police escorted
him to the disputed premises. He however denied having
been
shown any Will at that stage. He, however, conceded that the
police had told him that the disputed property belonged
to his
grandmother and not to his father. He subsequently went to make
enquiries at the Municipality’s office at hostel
no 1. The
officials confirmed to him that according to their records, his
father and mother;s names were reflected as the owners.
[15]
He vehemently denied knowing that in terms of the Will the disputed
property was bequeathed to the plaintiffs. He was
adamant that
he did not receive any letters from the Master.
He
later admitted that by the time he was introduced to the1st
defendant, a police officer had already told him that
the
deceased had left a Will. He however did not know that he was not
entitled to sell the house.
[16]
During re-examination he was asked whether he knew what a Will was.
He answered in the affirmative and went on to explain
that his
understanding was that a Will was a document that sets out who the
registered owner of the property is.
[17]
The 3
rd
defendant was also called as a witness and corroborated the evidence
of the 2
nd
defendant in all material respect s. Like the 2
nd
defendant, she denied having received any correspondence from the
Master. She also testified that she was at no stage aware
that
her late father had left a valid Will. She also maintained that
she did not know that the 2
nd
defendant and she were not entitled to sell the disputed property. On
the contrary, she was under the impression that they were
entitled to
do so by virtue of the letters of authority. Neither was she
told that she and 2
nd
defendant were not the rightful heirs to the deceased estate. The 2
nd
and 3
rd
defendant’s mother, Sarah Kgabele was also called as a
witness. She testified that none of the plaintiffs had ever
lived at the disputed property and denied that the property was a
“family home”. She and the deceased were married
in
community of property. The disputed property was an asset
belonging to the joint estate. After their divorce she
never
received her half share of the joint estate.
[18]
Her evidence regarding the matrimonial property regime that governed
regime of her marriage to the deceased was not challenged.
Her
evidence that she was entitled to half of the deceased’s estate
and that she had not received her half share after the
divorce was
also not challenged.
[19]
The approach to be followed where two mutually exclusive versions
have been presented was eloquently set out in the case of
Stellenbosch Farmers Wineries v
Martell et Cie & Others
2003 (1) SA 11
where
the court stated as follows:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b) their reliability; and (c) the probabilities. As to
(a), the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the
witness’s candour and demeanour in the witness-box, (ii)
his bias, latent and blatant, (iii) internal contradictions in his
evidence, (iv) external contradictions with what was pleaded
or put
on his behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability
of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying
about
the same incident or events. As to (b), a witness’s
reliability will depend, apart from the factors mentioned
under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the
probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment
of (a), (b) and (c)
the court will then, as a final step, determine whether the party
burdened with the onus of proof has
succeeded in discharging it.”
[20]
There were no serious self-contradictions in the versions presented
by both parties. None of the witnesses left me with a clear
impression that they were not telling the truth. As the matter falls
to be decided mainly on the basis of the probabilities, an
analysis
and evaluation of the probability or improbability of each party’s
version on the disputed facts is necessary.
[21]
It is not disputed that at the time of the deceased’s death,
the disputed property was registered in his name.
Although the
plaintiffs assert that the disputed property was a “family
home”, it is evident from their testimony that
for a period of
a year before the discovery of the Will they did not assert their
entitlement to the property despite having been
informed that the
deceased’s assets, including the disputed property, would be
inherited by his children.
[22]
It is not disputed that the deceased lived with his son, i.e the 2
nd
defendant in the disputed property until his death. The
deceased apparently made a Will in terms of which he bequeathed all
his property to his mother and siblings and left nothing to his own
children. At the time of the deceased’s death the disputed
property was registered in the name of the deceased. It was on
the strength of this fact and the fact that the next of kin
affidavit
reflected that he had two children that the Master of the High Court,
not being aware of the existence of the will, identified
the
deceased’s children as his intestate heirs and went on to issue
the letters of authority to one of them. The plaintiffs’
own version is that at the time of issuance of that letter of
authority, no one knew that the deceased had left a valid will. The
letters of authority were thus not issued on the basis of fraud or
any mispresentation on the part of the defendants.
[23]
I now turn to the issue pertaining to the second defendant’s
knowledge about the Master’s letter dated the 9
th
June 2007. The probabilities are that he did not receive this letter
as he was no longer residing at the disputed property at the
time
that letter was sent. I am fortified in this view by the fact that
this aspect of the 2
nd
defendant’s evidence was not challenged.
[24]
Mrs du Pisanies evidence did not really take the plaintiffs case any
further. She was not the author of the letters in
question and
has no knowledge as to how the letters were dispatched, i.e. whether
by registered or ordinary mail. In the absence
of proof that the
letter was sent by registered post and came to the attention of the
1
st
defendant, the plaintiffs have thus failed to prove, on a balance of
probabilities, that the letter dated 9 June 2008 did come
to the 2
nd
defendant’s attention. The interpretation that the
Assistant Master sought to give the letter sent out by the
office on
9 June 2008 is therefore of no relevance. In my view, if the
2
nd
defendant did not receive the letter in question, it can then be
accepted that he did not know that he had to return the original
back
to Master or that he was no longer entitled to take charge of the
assets of his late father’s estate.
[25]
I now turn to deal with the question whether the 2
nd
and 3
rd
defendant knew that the plaintiffs had any rights to the disputed
property in terms of the Will. The evidence does not suggest
that he
knew that the plaintiffs had existing rights by virtue of the Will.
The 2
nd
defendant came across as an unsophisticated person. During
cross-examination it became was clear to me that he struggled to
understand
the whole concept of a Will and its implications. When
pressed further on this matter his response was that a document that
was
shown to him at the munipal offices reflecting his parents’
names as owners of the property was a Will.
[26]
He was steadfast in his belief that he was entitled to take charge of
the property for two reasons, firstly because the documents
at the
Municipal offices reflected his father and mother as the owners of
the property, and secondly because the Master had, subsequent
to the
plaintiffs’ assertions, identified him and his sister as the
deceased’s heirs, simultaneously issuing letters
of authority
to him.
[27]
It must be borne in mind that the letters of authority were issued to
him after the 2
nd
plaintiff had allegedly chased him out of the house on the ground
that the house did not belong to his father. The issuance
of
the letters of authority, notwithstanding the 2
nd
plaintiff’s assertions, evidently led him to believe that such
assertions were baseless. Considering that he had not received
anything from the Master to suggest that the plaintiffs were the
rightful heirs in repect of the disputed property, the 2
nd
defendant’s belief was reasonable. This reasonable belief
negates any form of fraud on the part of the 2
nd
defendant.
[28]
Mr Mopeli, on behalf of the plaintiffs, argued that it could be
inferred from the second defendant’s concession (to the
effect
that the police had mentioned to him that the disputed property did
not belong to his father but to his grandmother) that
he knew that he
was not entitled to sell the property, hence his decision not defend
the matter. I disagree with this contention
as the drawing of such an
inference is not supported by the facts of the case. It is trite that
an inference sought to be drawn
is drawn if it is consistent with the
proven facts and if such proven facts exclude every reasonable
inference. No plausible evidence
suggesting knowledge of the
existence of third partys’s rights was adduced against the
third defendant. I find that she too
did not act fraudulently in any
manner.
[29]
In as far as the seller is concerned, I am of the view that the
plaintiffs failed to show that the first defendant knew about
the
existence of any dispute pertaining to the ownership of the house or
pertaining to the plaintiffs’ rights thereto before
the date of
signature of the deed of sale is plausible. Logic dictates that if he
did not know of the existence of any dispute,
he would probably not
have known about their alleged lack of authority to sell. The
involvement of a conveyancer in the transaction
seemingly also gave
the first defendant the impression that the transaction was above
board and that there were no legal impediments.
[30]
The property was transferred into the 2
nd
defendant’s name on 23 October 2008. By the time the
Master issued a letter dated 11 November 2008 advising about the
withdrawal of the letters of authority, the deed of sale had already
been entered into and the property had already been transferred
into
the 1
st
defendant’s name. Even if I was wrong in finding that the 2
nd
and 3
rd
defendant did not know of any legal impediments disentitling them to
sell the house to the 2
nd
defendant, the plaintiffs have still failed to show that the 1
st
defendant, as the purchaser, knew about the existence of such a
dispute. There is therefore no basis for finding that the first
defendant is deemed to have been complicit in the 2
nd
and 3
rd
defendant’s alleged fraud. I am satisfied that the first
defendant falls into the category of an “innocent transferee”.
I would therefore not be inclined to set the transfer aside.
See
Kazazis v Georghuades & Others
1979 (3) SA 886
at 893(T)
;
Cussons
& Another v Kroon 2001(4) SA 833 (SCA) para 9
.
[31]
I find that the plaintiffs have not proven their case against the 1
st
defendant on a balance of probabilities. They are therefore not
entitled to any of the relief they are seeking. There is
no
reason to deviate from the ordinary rule that costs should follow the
result.
[32]
I therefore grant the following order:
1.
The plaintiffs’ action is dismissed.
2. The plaintiffs
are directed to jointly and severally pay the costs of the first
defendant, the one paying the other to be absolved.
________________
M.B.MOLEMELA,
JP
On
behalf of the Plaintiffs: Mr M F Mopeli
Instructed
by: Honey and Partners
On
behalf of the First Defendant: Mr M Moholo
Mpobole
Ismail Attorneys
Bloemfontein