About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 132
|
|
Mogoera v Bosaaletse and Others (3222/2013) [2015] ZAFSHC 132 (26 June 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3222/2013
In the Application of:
WILHELMINA
MADIKA MOGOERA
Applicant
and
THABO
DAVID BOSAALETSE
1st
Respondent
LAURENCE
NGOAFELA LEKOATSA N.O
2nd Respondent
MPHO
LORRAINE LEKOATSA N.O
3rd Respondent
TSHWEU
PETER TSOTETSI N.O
4th Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
5th Respondent
CORAM:
DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
26 JUNE 2015
[1]
This is an application for leave to appeal my judgement of 20
February 2015 in terms w
he
reof
I dismissed applicant’s application with costs.
[2] As
arranged with the legal representatives of the parties in accordance
with rule of practice 16(5) of this division I considered
the
application for leave to appeal in chambers after having received the
parties’ heads of argument.
[3] I
have reflected dispassionately upon my decision to dismiss
applicant’s application, but I am of the view that no
reasonable
prospects exist that a court of appeal may disagree with
my findings of fact or the law. I refer to my judgment and do
not
intend to unnecessary repeat any findings. I shall just
briefly deal with the aspects raised in the application for leave
to
appeal and applicant’s heads of argument. Most of these
arguments have been canvassed fully in my judgment.
[4]
The first issue is whether rectification as claimed by applicant
could be granted. I stated in paragraph [20] of my judgment
read with paragraphs [10] and [11] that no valid deed of sale was
concluded and therefore rectification was not possible as a nullity
cannot be revived by way of rectification. However I made it
clear that even if the document relied upon embodied a valid
agreement capable of rectification, two further aspects had to be
considered, i.e. both parties must have had an identical intention
as
to the terms to be embodied in their proposed written agreement and
innocent third parties shall not be unfairly affected thereby.
There was a serious dispute between applicant and first respondent,
the contracting parties, particularly pertaining to whether
or not
the full purchase price had been paid and whether such acknowledgment
of full payment should have been inserted as a term
of the agreement
to be amended. Applicant alleged that rectification should also
entail the insertion of an additional term
stipulating that the full
purchase price had been paid. First respondent denied this and
averred that an amount of R10 000.00
was outstanding at the
stage when the agreement was entered into and that this amount
remained outstanding.
[5] It
must also be remembered that rectification was sought after the
property had been registered in the names of 2
nd
to 4
th
respondents as trustees of the Lekoatsa Family Trust and that these
trustees where not immediate parties to the agreement.
I could
not find that the trustees were not innocent third parties and that
the proposed rectification would not unfairly affect
them. In
my view there is no reasonable possibility that a court of appeal
would find otherwise.
[6]
Applicant relies on 1
st
respondent’s alleged non-compliance with
s 19
of the
Alienation
of Land Act, 68 of 1981
in so far as he as seller was supposed to
strictly comply with the notice requirements contained in the
section, but failed to
do so.
Section 19
is contained in
chapter 2 of this Act, which chapter specifically deals with the sale
of land in instalments and contracts relating
thereto. A
contract for purposes of chapter 2 and
s 19
of the Act in particular
is defined as follows:
“
Contract
–
(a)
means
a deed of alienation under which land is sold against payment by the
purchaser to, or to any person on behalf of, the seller
of an amount
of money in more than two instalments over the period exceeding one
year;
(b)
includes
any agreement or agreements which together have the same
import, whatever form the
agreement or agreements may take.”
It is
thus clear that chapter 2 and
s 19
in particular do not deal with all
deeds of alienation. If it was the case, the parties thereto
should have complied with
s 6
of the Act which
inter
alia
provides for a recording of the contact by the Registrar of Deeds in
the Deeds Registry in terms of
s 20.
There is no merit in
applicant’s submissions in this regard.
[7]
The next aspect to be considered is the validity of the real
agreement between 1
st
respondent and 2
nd
to 4
th
respondents. The judgment of the Supreme Court of Appeal in
Lupacchini
NO and Another v Minister of Safety and Security
2010 (6) SA 457
(SCA) is distinguishable. The power of attorney
signed by 1
st
respondent as seller, instructing his conveyancer to register the
property in the name of the trustees, was signed prior to the
letters
of authorisation being issued to the trustees in terms of
s 6(1)
of
the Trust Property Control Act, 57 of 1988. It was signed on
the date when the deed of sale between these parties was
entered
into. I found that the deed of sale, the underlying agreement,
was invalid due to the trustees’ lack of authority.
However, registration of transfer was effected on 20 August 2012,
some eleven months after the deed of sale was entered into and
long
after compliance with s 6. It is accepted as stated in
Quartermark
Investments (Pty) Ltd v Mkhwanazi & another
2014 (3) SA 96
(SCA) at para [24], relying on the judgment of Brand
JA in
Legator
McKenna Inc
that passing of ownership in immovable property only takes place when
there has been delivery effected by registration of transfer,
coupled
with a real agreement; the essential elements of this real agreement
being an intention on the part of the transferor to
transfer
ownership and an intention by the transferee as purchaser (the
trustees
in
casu
)
to become the owner of the property. However the
Quartermark
Investments
judgment is totally distinguishable from the present matter
.
In
that case Mrs Mkhwanazi had no intention to pass transfer and she was
also fraudulently induced to sign the deed of sale, the
underlying
agreement. I found that the date on which the intention of the
parties had to be determined could only be the
date of transfer and
I’m of the view that another court may not reasonably come to a
different conclusion. It might
be argued that the intention was
formed a short while earlier, e.g. when the purchasers fully complied
with all their contractual
obligations such as payment of the
purchase price, the signing by the parties of all other transfer
documents whereupon the conveyancer
was instructed to lodge the
transfer documents for registration. Judicial notice is taken
of the fact that it takes a week
for transactions to be registered in
the Free State from date of lodgement of the relevant documents.
[8]
The last point taken on behalf of applicant is the issue of double
sales and the doctrine of notice. I found that in the
absence
of
mala
fides
the trustees as purchasers who had received transfer of ownership
were protected. Although there was communication between applicant
and 2
nd
respondent after the deed of sale had been entered into (the
underlying agreement which I found to be invalid), the respondents
did not have actual knowledge of the first transaction and were at
all times
bona
fide
.
In this regard I had no reason to reject 2
nd
respondent’s version of the events, as supported by 1
st
respondent.
[9] Consequently the
following order is made:
The
application is dismissed with costs.
________________
J.P.
DAFFUE, J
On behalf of applicant:
Adv. N. Snellenburg
Instructed
by:
Bahlekazi
Attorneys
BLOEMFONTEIN
On behalf of the 2
nd
,
3
rd
& 4
th
respondents: Adv. P.
Loubser
Instructed
by:
Fixane
Attorneys
BLOEMFONTEIN
/PC