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[2014] ZAFSHC 118
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Kitsa N.O. and Another v Mathibeli and Others (4463/2013) [2014] ZAFSHC 118 (24 July 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 4463/2013
In
the matter between:-
MOTLADIILE
FRANK KITSA NO
…..........................................................................
First
Applicant
MOTLADIILE
FRANK KITSA
…............................................................................
Second Applicant
and
DIKELEDI
VICTORIA PALLY MATHIBELI
…......................................................
First
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
….......................................
Second
Respondent
MASTER
OF THE HIGH COURT, BLOEMFONTEIN
….....................................
Third
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
…...................................................
Fourth
Respondent
JUDGMENT
BY:
VAN
DER MERWE, J
HEARD
ON:
29
MAY 2014
DELIVERED
ON:
24
JULY 2014
[1]
This application is a sequel in an on-going dispute between brother
and sister over the right to immovable property known as
[…]
M[…] Street, B[…], Bloemfontein, also described as erf
[…], M[…] Extension 4 (the property).
[2]
The applicant and the first respondent are two of nine children of
their late parents Sedio Jacob Kitsa (Mr Kitsa) and Mittah
Kitsa (Ms
Kitsa). The second respondent is the Mangaung Metropolitan
Municipality (the municipality).
[2]
On or about 22 December 1977 the legal predecessor of the
municipality issued a site permit in respect of the property to Mr
and Ms Kitsa. At the time the property was vacant land.
In terms of the laws of the time, the holders of a site permit
only
had a right to occupy the property. The ownership thereof
remained with the municipality.
[3]
On 31 May 2000 Mr and Ms Kitsa executed a joint will which
inter
alia
provided that upon the death of the first-dying of them, the
property is bequeathed to the survivor and that on the death of the
survivor, it shall devolve upon the applicant, or failing him, the
son of the applicant. Mr and Ms Kitsa of course did not
at any
stage obtain ownership of the property, but I accept that it was
intended to bequeath the rights to the property.
This may have
played an important role in an inquiry in terms of the Conversion of
Certain Rights into Leasehold or Ownership Act
81 of 1988. Mr
Kitsa passed away on 22 May 2005, whereafter this will was accepted
by the Master of this court. The
applicant was appointed the
executor of the deceased estate.
[4]
Despite this, the property was sold by the municipality to the first
respondent in terms of a deed of sale dated 4 August 2005.
Pursuant hereto, the property was registered in the name of the first
respondent by the Registrar of Deeds, Bloemfontein on 27
November
2009.
[5]
How this came about, can be gathered from the following documents.
The first is a deed of donation purportedly executed
by both Mr and
Ms Kitsa on 18 August 2004, in terms of which they unconditionally
donated their rights to the property to the first
respondent.
On 1 October 2004 Mr and Ms Kitsa purportedly also ceded all their
rights to the property to the first respondent.
The document
used for this purpose appears to be a standard form required by the
municipality and refers to the deed of donation
as the basis
thereof. On the strength of these documents the first
respondent applied for a site permit in respect of the
property,
which was granted by the municipality on 22 October 2004. It is
not clear whether the deed of sale was preceded
by an inquiry and
determination in terms of section 2 of Act 81 of 1988, but it can be
accepted that but for the deed of donation,
the deed of sale would
not have been entered into and the property would not have been
registered in the name of the first respondent.
[6]
Ms Kitsa passed away on 14 March 2013. The applicant was also
appointed the executor of her estate. In that capacity as
well as in
his personal capacity, he essentially asks for an order declaring
that in law the ownership of the property did not
pass to the first
respondent and that the registration of the property in the deeds
registry be rectified to reflect that the property
vests in the
deceased estate of Ms Kitsa. The application is opposed by the first
respondent and the municipality.
[7]
The applicant’s case is squarely based thereon that the deed of
donation is a fraudulent document. He relies on
affidavits made
by Ms Kitsa on 9 June 2006 and 22 July 2008 respectively, in which
she stated that she and Mr Kitsa had no intention
to donate the
property or any rights in respect thereof to the first respondent and
that her thumb print on the deed of donation
was obtained by the
false representation by the first respondent that the document
related to insurance of the property.
The first respondent
denied that Ms Kitsa would make any such statement but did not object
to the admissibility of the statements
as such. The statements
are in my view admissible in terms of section 34 of the Civil
Proceedings Evidence Act 25 of 1965
and it is not necessary to
consider whether they should be admitted in terms of
section 3
of the
Law of Evidence Amendment Act 45 of 1988
. The weight of this
evidence must of course be considered in the light of all the
circumstances of the case, as is mentioned
in
section 35
of Act 25 of
1965.
[8]
On behalf of the applicant it is argued that if the deed of donation
was fraudulent, there was no real agreement to transfer
ownership to
the first respondent and that ownership did not pass despite the
registration in the name of the first respondent.
This argument
may be accepted on the strength of the principle that where the
underlying agreement is tainted by fraud, ownership
does not pass.
See
Nedbank Ltd v Mendelow NO
(686/2012)
[2013] ZASCA 98
(5 September 2013) paras [12] – [14]
and
Quartermark Investments (Pty) Ltd
v Mkhwanazi and Another
2014 (3) SA
96
(SCA).
[9]
But the question is whether a finding can be made on the papers
before me that the first respondent obtained the deed of donation
by
fraud. This is vehemently denied by the first respondent.
She states that the reason why her parents donated the
property to
her and allowed her to obtain the site permit in respect thereof, was
that she provided all the finances for the erection
of the dwelling
on the property during the late 1970’s and early 1980’s.
She says that this was confirmed at
a family meeting held during
October 1999. In both respects she is supported by a
confirmatory affidavit of her brother,
Mr Pule Patrick Kitsa.
That these averments are at least not recent fabrications, appear
from the fact that they were made
in a letter written on behalf of
the first respondent by Legalwise to Mr Kitsa dated 20 April 2004.
[10]
There is therefore a factual dispute on the material question whether
the deed of donation was obtained by fraud. There
are
probabilities on the papers that tend to support the applicant’s
case, but factual disputes in motion proceedings cannot
be decided on
probabilities. It is trite that the version of the first
respondent must be accepted for purposes determination
of the
application unless it is so clearly untenable or farfetched that it
can be rejected out of hand. For the reasons mentioned,
this is
not possible. After an adjournment to take specific
instructions on this point, counsel for the applicant informed
me
that the applicant does not ask that the issue be referred for the
hearing of oral evidence.
[11]
It follows that the application must be dismissed. Costs should
follow the result. There is no justification for
the special
order of costs asked by the first respondent and the municipality.
[12]
In the result the following order is made:
The
application is dismissed with costs.
_________________________
C.
H. G. VAN DER MERWE, J
On
behalf of applicant: Adv. D. R. Thompson
Instructed
by:
SMO
Seobe Attorneys Inc
BLOEMFONTEIN
On
behalf of first respondent: Adv. D. M. Gruwer
Instructed
by:
Vosloo
Attorneys
BLOEMFONTEIN
On
behalf of second respondent: Adv. W. A. van Aswegen
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN