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[2014] ZAGPPHC 36
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Moerane and Another v S (A856/13) [2014] ZAGPPHC 36 (13 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
Case
number: 41128/2013
Date:
13 February 2014
In the matter
between:
MB
MOIMANE
..............................................................
Applicant
And
SR
RACHIDI
......................................................
First
Respondent
THE REGISTRAR OF
DEEDS
.....................
Second
Respondent
JUDGMENT
PRETORIUS J,
[1] The applicant
seeks an order that the Registrar of Deeds - second respondent -
should cancel the deed of ownership in respect
of two immovable
properties known as E…. 7…. and E… 6.., M….
A,
N…, Limpopo
Province. These properties had been registered in the name of the
first respondent 17 years ago. A further order
is sought that the
second respondent be ordered to register the half share of each
property in the applicant’s name and the
other half share in
the estate of the deceased, who had passed away during 2007.
[2] The applicant
was married to the deceased Mr Chuchu Stephan Moimane on 4 April
1981, in community of property. On 5 August 1985
the deceased
received a deed of grant of ownership unit for residential purposes
for Unit 7…, N… D…...
[3] In 28 January
1991, E… 6…, N…. district was also registered in
the name of the deceased.
[4] On 17 October
1996 a decree of divorce was granted and it was ordered that the
joint estate be divided This is 17 years ago.
[5] The applicant
alleges that the deceased and the first respondent had colluded two
months before the divorce to have these two
properties transferred
into the name of the first respondent. The applicant cannot provide
any evidence to this effect.
[6] The first
respondent denies these allegations vehemently. His evidence is that
on 20 July 1992 the deceased approached him to
buy these two erven to
enable him to use the money to buy a tractor-trailor for his and the
applicant’s business. The parties
agreed to a selling price of
R 40
0. 00 and R20 000.00
respectively for the two houses. He paid R10 000.00 as a cash deposit
and thereafter as per agreement, R1000.00
per month, until the full
price had been paid.
[7] It was
furthermore agreed that the properties would only be transferred into
the first respondent’s name once the full
amount had been paid.
The first respondent paid the R1000.00 cash to the applicant
personally each month and she recorded the payments
in a book which
she kept.
[8] The deposit of R
10 000.00 was paid in cash on 30 August 1992 and this was recorded by
the applicant. At each monthly payment
of R1000.00 both the applicant
and the first respondent signed in the book. The price for the two
properties was paid in full during
1995. Both the deceased, who was
the first respondent’s uncle, and the first respondent went to
Smith Attorneys during 1995.
Ultimately the properties were
registered in the first respondent’s name on 26 June 1996.
[9] According to the
first respondent the applicant had been aware of these transactions
throughout and was the person to whom the
monthly payment of R1000.00
was made. At no stage, after the divorce, and even after the
deceased’s death did the applicant
mention that the properties
were fraudulently registered on the first respondent’s name.
Although the applicant and first
respondent live close together, she
has never complained until now, although they have met numerous times
after the deceased’s
death.
[10] There is no
explanation by the applicant as to why it took her so long to bring
this application. The deceased and applicant
were divorced in 1996 -
17 years ago. The deceased passed away in 2007 - 7 years ago. In all
this time there were no complaints
from the applicant. The applicant
admits that she became aware of the first respondent’s
ownership during 2007, after the
deceased had passed away, but
refrained from taking any steps. There is no explanation from the
applicant as to why she had decided
to keep quiet until now. The
court would at least expect her to give a reason for her tardiness
and lack of interest in this matter.
The court would also expect that
she would provide a reason for her sudden interest after 17 years.
[11] The applicant
has no evidence at all that these properties were transferred to the
first respondent in a fraudulent manner.
In this instance the Master
of the High Court would have an interest, but the applicant failed to
join him.
[12] The first
respondent’s counsel referred the court to Oriental Products
(Pty) Ltd v Pegman 178 Investments Trading CC
and Others
2011 (2) SA
508
(SCA) where Shongwe JA held at paragraph 12:
“Under the
abstract system the most important point is that there is no need for
a formally valid underlying transaction,
provided that the parties
are ad idem regarding the passing of ownership”
[13] In Meintjies NO
v Coetzer and Others
2010 (5) SA 186
(SCA)
Leach JA held at
paragraph 21:
“At the outset
I must record that cases such as Du Plessis v Prophitius and Legator
McKenna (see para [8] above) recognised
the abstract theory of
transfer as part of our law, and that under that theory, even though
a valid underlying contract (eg of
sale) is not necessary, the
passing of ownership of immovable property only takes place when
there has been delivery effected by
registration of transfer coupled
with a so- called 'real agreement' or 'saaklike ooreenkoms', the
essential elements of which are
an intention on the part of a
transferor to transfer ownership coupled with a corresponding
intention on the part of the transferee
to become the new owner3’
[14] The applicant
has to prove the allegations set out in the affidavit upon a balance
of probabilities. She has to prove that
she had no
knowledge of these
transactions as alleged by the first respondent. The court finds it
strange that the applicant waited until after
the death of the
deceased to do a deed search and that the applicant waited a further
six years to launch this application. The
respondent sets out in
great detail as to how he had acquired the two properties trying to
help the deceased and the applicant
at the time.
[15] She does not
deal with the extraordinary length of time it took her to launch the
application in her founding affidavit. In
the Meintjies case (supra)
the court held that where an applicant became aware that the property
is no longer registered into the
correct name, but in the first
respondent’s name and did nothing to intervene by either
writing a letter to the Registrar
of Deeds, or confronting the
respondent, or launching an application to court, the applicant is
estopped from asserting her right
to the property.
[16] In this
instance the applicant has been divorced since 1996. At the time of
the divorce she did not insist on her half share
of these two
immovable properties. She does not provide the court with any
explanation. The deceased passed away in 2007 and only
now, 6 years
later she comes to court. The inference that the court can draw is
that she had received the cash payment from the
first respondent as
alleged by the first respondent and had received her half share of
the estate at the time of divorce.
[17] I have
considered all the pleadings, authorities and arguements, mindful
that the applicant has to prove her case on a balance
of
probabilities. I cannot find that the applicant has proven her case
as required by law, as she had failed for 17 years to address
the
representation that the first respondent is the lawful and registered
owner of the said two properties.
[18] The following
order is made:
1. The application
is dismissed with costs.
Judge C
Pretorius
Case number :
41128/2013
Heard on : 3
February 2014
For the Applicant
/ Plaintiff : Adv M Joubert
Instructed by :
Mnisi
For the
Respondent : Adv GS Maritz
Instructed by :
Paul Coetzee
Date of
Judgment : 14 February 2013