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[2015] ZAFSHC 209
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Molatseli v Occupier of ERF, Mangaung Bloemfontein, Free State and Another (661/2015) [2015] ZAFSHC 209 (5 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 661/2015
In the
matter between:
PETRUS
THEMBA
MOLATSELI
Applicant
and
OCCUPIER
OF ERF [.....], MANGAUNG
BLOEMFONTEIN,
FREE STATE
1
st
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
2
nd
Respondent
HEARD
ON:
20
AUGUST 2015
JUDGMENT
BY:
N.M.
MBHELE, AJ
DELIVERED
ON:
5
NOVEMBER 2015
DRAFT JUDGEMENT
[1]
This is an application for eviction in terms of section 4 of the
Prevention of Illegal Eviction
from an Unlawful Occupation of Land
Act 14 of 1998 (PIE Act) from Erf [.....] Mangaung (Extension 23,
District Bloemfontein, Free
State Province the property).
[2]
The application hinges on a deed of sale alleged to have been signed
between the Applicant
and Meiki Agnes Thulo (Thulo) on 26 November
2009.
[3]
Seipone Ruth Lentanta (1
st
Respondent) is the current occupier of the property.
[4]
The property is currently registered in the name of the applicant.
The applicant could not
take occupation of the property upon
registration, due to the first respondent’s refusal to vacate
the same.
[5]
The first respondent claims ownership of the property and alleges
that it was fraudulently
registered in the applicant’s name.
[6]
Prior to the commencement of the hearing the applicant consented to
condonation of the late
filing of the first respondent’s
opposing affidavit and I granted condonation.
ISSUES
IN DISPUTE
[7]
Parties are in dispute as to who is the rightful owner of the
property, insofar as the first
respondent alleges that she purchased
the same property from Thulo in 2009.
CONTENTIONS
BY THE PARTIES
[8]
Mr Mene, for the Applicant, submits that title deed is the only proof
of ownership. He submits
further that the contract of Sale of Land is
not complete until a transfer has been registered with the deeds
office, which is
what makes the respondent’s claim to ownership
of the property invalid.
[9]
It is not enough for the first respondent to claim that Thulo did not
authorise the transfer
of property into the name of the applicant
when she aligned herself with the sale by receiving money from the
applicant.
[10]
Mr Buys contends that Thabo’s affidavit was not filed in terms
of
the
rules and should therefore be declared
pro
non scripto
.
[11]
He contends further that the applicant should have realised when
he
moved his application that a serious dispute of fact incapable of
resolution on the papers, was bound to develop. He called for
the
dismissal of the application with costs.
LEGAL
PRINCIPLES
[12]
Parties are in agreement that no alienation of land shall be of any
force or effect unless it is contained
in a deed of alienation signed
by both parties thereto or by their agents acting on their written
authority. See
(Section
2(1)
of the
Alienation of Land Act 68 of 1981
.)
[13]
In application proceedings where there is a material dispute of
facts, the respondent’s version
can only be rejected if it is
farfetched or clearly untenable (
See:
Plascon-Evans
Points Ltd v Van Riebeeck Points (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
[14]
A real genuine and bona fide dispute of fact can exist only where the
party who purports to raise the
dispute has unambiguously and clearly
addressed the disputed facts in its papers. See (
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
In
Kalil v Decotex (Pty) Ltd & Another
1988
(1) SA 943
(A) at 979 (H-I) it was said:
“…
in
exercising its discretion to refer the matter for oral evidence, the
Court should be guided to a large extent by the prospects
of
viva
voce
evidence
tipping the balance in favour of the applicant. Thus, if on the
affidavits the probabilities are evenly balanced, the Court
would be
more inclined to allow the hearing of oral evidence than if the
balance were against the applicant. And the more the scale
are
depressed against the applicant the less likely the court would be to
exercise the discretion in his favour.”
APPLICATION
OF PRINCIPLES AND FINDINGS
[15]
It is clear from the papers that respondent seriously and
unambiguously deals with the disputed validity
of the contract of
sale of land and consequent transfer thereof in the name of the
applicant.
[16]
Ex facie the papers probabilities are, in my view, evenly balanced in
so far as the transfer of the
property in the name of the applicant
is prima facie valid while there exist a possibility that same was
obtained without the knowledge
of Thulo.
[17]
I am satisfied that the oral evidence and cross examination will
disturb the balance of probabilities
apparent from the papers.
ORDER
1.
The
application is postponed to 14 December for certification as ready
for hearing of
viva
voce
evidence
by the pre-trial judge.
2.
The
issues to be determined are the following:
2.1
Whether
the transfer of property into the Applicant’s name was
authorized by Agnes Thulo.
3.
For
the purpose of such a hearing, the respondent shall deliver sworn
statements of witnesses he wishes to call, inclusive of any
supplementary affidavits, within 10 days, calculated from the date
hereof.
4.
On
its part the applicant shall deliver sworn statements of witnesses it
wishes to call, inclusive of any supplementary affidavits,
within 10
days from the date on which the respondent shall have delivered
statements or was supposed to deliver statements.
5.
Within
10 days after the delivery of statements or supplementary affidavits
by the applicant, the parties shall make discovery under
oath in
terms of the provisions of
Rule 35of
Uniform Rules of Court and the
provisions of Rule 35 (6) with regard to inspection and production of
discovered documents or items
shall apply.
6.
The
costs shall be costs in the application.
________________
NM
MBHELE, AJ
On behalf of
applicant: Adv. Mene
Instructed
by:
SMO
Seobe Attorneys
BLOEMFONTEIN
On behalf of 1
st
respondent: Adv. Buys
Instructed
by:
Willie
J Botha Inc.
BLOEMFONTEIN
/PC