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[2012] ZAGPPHC 130
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Yonda Investments CC v Rohr and Another (29235/2009) [2012] ZAGPPHC 130 (25 June 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
no: 29235/2009
Date:25/06/2012
In
the matter between:
YONDA
INVESTMENTS
CC
....................................................
PLAINTIFF
AND
FREDERICH
ROHR
….............................................................
FIRST
DEFENDANT
ANNAS
ELIZABETH
ROHR
....................................................
SECOND
DEFENDANT
JUDGMENT
Baqwa
J
Parties
[1]
1.1. The plaintiff is Yonda Investment CC a close corporation
registered in terms of the Close Corporation Act and which operates
as a property development company.
1.2.
The first defendant is Friedrich Rohr is an adult male employed by
the South African National Parks Board and the second defendant
was
the wife of the first defendant at the time of the transaction which
has given rise to the proceedings.
Background
[2]
This action arises out of a written deed of sale which was entered
into by the plaintiff represented by one Tania Erasmus and
first
defendant on 25 June 2008 at Skukuza ("Annexure A").
2.1.
In terms of that agreement plaintiff sold to the defendant the
immovable property known as Residential Unit number 11 in sectional
title scheme known as Wild Fig.
2.2.
The purchase price was the sum of four hundred and seventy five
thousand rand (R475 000-00) of which first defendant was to
pay a
deposit of R5000-00.
The
evidence
[3]
The plaintiff called the evidence of four witnesses, namely Mrs Tracy
dan Dunnen, Mr Christian Steyn, Mr George Clark and Mrs
Tanya
Erasmus.
3.1.
Tracy den Dunnen ( Mrs den Dunnen) is the wife of Mr Martin den
Dunnen, the sole member of the plaintiff. She is employed at
Sugar
Creek Trading but performs sales and administrative duties for the
plaintiff. Tanya Erasmus is an employee of plaintiff and
she reports
to Mrs den Dunnen. Mrs den Dunnen was not present at the signing of
the contract Annexure A. She however verified the
correctness
thereafter and attached her signature has her witness. She was
questioned at length about the impropriety of what she
had done,
namely, to sign as witness when she had in fact not been present when
the contract was signed. She admitted acting out
of ignorance but
denied having an intention to act fraudulently.
3.2.
The next witness was Mr Christian Steyn who is an attorney, notary
and conveyencer of some 37 years experience practising as
such. He is
currently an appraiser for the district of Phalaborwa. He is also an
Estate Agent and it is in that capacity that he
performs property
evaluations. He evaluated unit 11 and came to the conclusion that the
price at which it had been sold to a third
party (R425 000-00) had
been a fair value in terms of the current market prices. He did not
present any expert report to demonstrate
the empirical data on which
he relied and counsel for the defendant put it to him that his
evidence could not be relied upon because
though he was presented as
an expert witness his evidence was not supported by any empirical
data.
3.3.
The third witness was Mr George Clark who had acted as plaintiffs
attorney and who had assisted him in the acquisition of the
property
which was about to be developed as the Wild Fig Development Project.
Mr Clark had even drawn up the pro forma contractual
document which
was utilised in producing annexure A.
3.4.
The last witness for the plaintiff was Tanya Erasmus who had
introduced first defendant to the Wild Fig Development. They had
discussed this development at a social function they attended at
Skukza. She was a friend of the first defendant and they had been
friends for about four years. She knew that first defendant was
married. The day after the social function, Mrs Erasmus was
accompanied
by her husband to first defendant's house. After
explaining some of the clauses in annexure A to him, first defendant
signed the
contract.
3.5.
Only the first defendant was called as a witness for the defendants.
He admitted signing annexure A but said he was under the
impression
that he was making an investment against which he only stood to lose
only the R5000-00 which he had invested.
The
pleadings
[4]
The plaintiff initially sued out summons against the defendants for
specific performance of an alleged sale of immovable property
contract requesting an order to compel the defendants to take
possession of the sectional title unit number 11 in the development
Wild Fig.
The
plaintiff amended the cause of action set out in the summons to that
of a request for payment of R45 000-00 in damages calculated
as a
result of a lesser purchase price for the sectional title unit number
11, R39 000-00 in damages calculated as occupational
rent for the
months December 2008 to November 2009 (later reduced by R6 000-00 to
R33 000-00) and R4 258-00 in damages calculated
as levies for the
months December 2008 to November 2009.
[5]
In its particulars of claim, plaintiff avers that plaintiff,
represented by Tanya Erasmus entered into an agreement. First
defendant admits this averment but submits that the admission pleaded
was no more than to record the agreement annexure A. Defendant's
counsel submits that first defendant was not admitting that the
agreement was valid and enforceable.
5.1.
The plaintiff further states in the particulars of claim that the
second defendant consented in writing to the conclusion of
the
agreement annexure A which first defendant denies.
5.2.
In the alternative, plaintiff states that in the event it is found
that second defendant did not have consent in writing for
the
conclusion of the agreement annexure A, plaintiff did not know or
could not have reasonably known that first defendant did
not have
consent in terms of the provision of section 15(9)(a) of the
Matrimonial Property Act 88 of 1984 ("the Act")
and that
the agreement should be deemed to have been entered into with consent
in terms of section 15(2) of the Act.
5.3.
First defendant denies having had consent from second defendant and
goes further to plead that the alleged agreement (annexure
A) does
not constitute an enforceable agreement. The defendants go on to
re-iterate this denial of a binding agreement in their
response to
plaintiff's pre-trial questions.
5.4.
All in all the defendants denial has the effect of putting in issue
all the elements of the contract annexure A.
[6]
As indicated above, the plaintiffs cause of action is based on a
written deed of sale entered into on 25 June 2006.
6.1.
One of the grounds on which defendant contests the validity thereof
is that at the time of the agreement was entered into plaintiff
was
not the owner of the immovable property which was the subject of the
sale. Put conversely, a seller who is not the owner of
the merx, or
one who does not have the owner's authority to transfer ownership,
cannot sell that merx, to the purchaser.
See
Adler v Bloemfontein Town Council (1894 O.V.S)
11 CLJ 69
; Peters
Flaman and CO v Kokstad Municipality
1919 A.D 427
6.2.
Unit 11, the object of this trial is explicitly alleged by the
plaintiff to form part of the Remainder of Portion 1 of Erf
52
Hoedspruit Township Registration K.T Northern Province.
6.3.
The plaintiff only became owner of he land known as Remainder of
Portion 1 of Erf 52 Hoedspruit Township Registration K.T Northern
Province ("the merx")upon registration of Deeds of Transfer
T91415/2006 ON 25 July 2006.
6.4.
Plaintiffs attorney, Mr Clark, who was a witness and who had assisted
with the development "scheme" from the onset
could not
remember the date of the transfer. He could therefore not deny that
the transfer took place on 25 July 2006.
6.5.
The plaintiff's employee Tanya Erasmus did not have any knowledge of
the date of transfer and she could therefore also not
contest 25 July
2006 as the date of transfer.
6.6.
The plaintiff also failed to call the sole member of the plaintiff to
clarify the question of ownership. He was present in
court but left
before the proceedings were concluded.
6.7
First defendant's evidence was that the land, Remainder of Portion 1
of Erf 52 Hoedspruit Township Registration Division K.T
Northern
Province, was officially registered by the Registrar of Deeds by the
Deed of Transfer T91415/2006 on 25 July 2006 in the
name of the
plaintiff. This evidence was not disputed under cross examination.
6.8.
The law regarding a failure to cross examine on a pertinent point is
quite clear: when a party to proceedings elects not to
cross examine
another on key issues in dispute, that party failing to cross examine
cannot later challenge the party's version
and argue that it is not
to be accepted.
6.9.
This principle of law was again re-stated by the Constitutional Court
in the matter of President of the RSA v South African
Rugby Football
Union 2000(1) SA 1 (CC) at par [58]-[78] where the following was
specifically written with reference to the relevant
authorities:-
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential,
when it is intended to suggest that a witness is not speaking the
truth on particular point, to direct the witness's
attention to the
fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and defending his or her
character.
If a point in dispute is left unchallenged in cross-examination, the
party calling the witness is entitled to assume
that the challenged
witness's testimony is accepted as correct. This rule was enunciated
by the House of Lords in Browne v Dunn
and has been adopted and
consistently followed by our courts.
[62]
The rule in Browne v Dunn is not merely one of professional practice
but Is essential to fair play and fair dealing with witnesses'.
It is
still current in England and has been adopted and followed in
substantially the same form in Commonwealth jurisdiction.
[63]
The precise nature of the imputation should be made clear to witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is to be challenged but also how it is to be challenged. This is so
because the witness must be given an opportunity
to deny the
challenge, to call corroborative evidence, to qualify the evidence
given by the witness or others and to explain contradictions
on which
reliance is to be placed;
And
[65]
These rules relating to the duty to cross-examine must obviously not
be applied in a mechanical way, but always with due regard
to all the
facts and circumstances of each case. But their object must not be
lost sight of Its proper observance is owed to pauper
and prince
alike................. that being so, the rule needs to be observed
scrupulously."
[10]
The agreement annexure A is also challenged by the first defendant on
the basis of the
Alienation of Land Act 68 of 1981
.
Section 2
of the
Alienation of Land Act 68 of 1981
states that no alienation of land
(including a unit in a sectional title scheme) shall be of any force
and effect if not contained
in a written deed of alienation signed by
the parties thereto or by its agents acting on their written
authority. It is common
cause that annexure A (the agreement) was not
signed by the plaintiff. It was signed by Tanya Erasmus on behalf of
the plaintiff.
There is no evidence that she was provided with any
written authority to sign an agreement on behalf of the seller..
[11]
In addressing this issue, counsel for the plaintiff submitted that
the written authority could be contained in a formal power
of
attorney on an informal document. In my view this submission is not
sustainable because according to the evidence of Tanya Erasmus
the
question of authority was never discussed with Martin den Dunnen the
sole member of the plaintiff. The question of authority,
written or
unwritten, signed or unsigned never arouse neither was it presented
as evidence.
[12]
To be able to "act on" the written authority, the agent
must be aware of its existence and that it is in writing-
he need not
have it in his possession when signing the deed of alienation not
need to have seen. If at any stage (Sugden v Beaconhurst
Dairies
(Pty) Ltd 1963(2) SA 174(E) 184 E-F; National Board (Pretoria) (Pty)
Ltd v Swanepoel 1975(1) SA 904 (W) at 910F-911C)"
See
Practioners Guide to the
Alienation of Land Act, 2nd edit
ion by A.D J
Van Rensburg and SH Treisman (pp59-60).
It
was the evidence of Tanya Erasmus that she had never discussed such
granting of authority with Martin den Dunnen. She could therefore
not
be aware of something that was non-existent.
Consent
in terms of the
Matrimonial Property Act
[13
]
Section 15(1)
and (2) of the
Matrimonial Property Act of 1984
prohibit a spouse married in community of property from entering as a
purchaser into a contract defined in the
Alienation of Land Act 68 of
1981
without the written consent of the other spouse.
See
Visser v Hull and Others 2010(1) SA 521(C) Kotze NO v Oosthuizen
1988(3) SA 578(C) Pretorius v Pretorius and Another 1948(1)
SA 250
(A) Bopape and Another v Moloto 2000(1) SA 383(T)
This
was yet another point of attack on the validity of Annexure A by the
first defendant.
[14]
In this regard the evidence established the following:
14.1.
That the second defendant did not sign the document Annexure
"A".
14.2.
That at the time the first defendant signed Annexure "A"
the first defendant and the second defendant were married
in
community of property.
14.3.
That the second defendant never gave written consent to the first
defendant to sign annexure "A".
14.4.
That at the time first defendant signed annexure "A", Tanya
Erasmus, who was the plaintiff's employee and who signed
annexure "A"
on behalf of plaintiff was aware for a period of no less than four(4)
years that the first defendant and
second defendant were married.
14.5.
That annexure "A" refers to the sale of immovable property
namely unit 11 in a sectional title scheme.
Plaintiffs
onus
[15]
For the plaintiff to be successful with its claim against the
defendants, it had to prove that annexure "A" is a
binding
and enforceable sale of immovable property. For the agreement to be
enforceable it must comply with the statutory requirements
applicable
to the sale of immovable property.
[16]
Section 2 of the Alienation of Land Act 68 of 1998 states that no
alienation of land (including sectional title scheme) shall
be of any
force and effect unless contained in a written deed of alienation
signed by the parties thereto or by its agents acting
on their
written authority. Annexure "A" was signed on behalf of
plaintiff by Tanya Erasmus who had no written authority
from seller.
[17]
For the agreement annexure "A" to comply with the
provisions of
section 15(1)
and (2)(g) of the
Matrimonial Property
Act 88 of 1984
, the plaintiff would have to prove that the plaintiff
and/or Tina Erasmus did not know and could not have reasonably known
that
the transaction was being entered into contrary to the
aforementioned provisions. No evidence in support of this contention
was
placed before the court. On the contrary, Tina Erasmus confirmed
having known about defendants' marriage for a period of four(4)
years.
[18]
In the premises, annexure "A" complied with neither the
Alienation of Land Act nor the
Matrimonial Property Act and
the
plaintiff has failed to discharge the onus placed upon it.
Amount
claimed
[19]
Plaintiff is claiming the sum of R89 158-80 from the defendants which
is made up as follows:
19.1.
R45 000-00 being the difference between the purchase price in terms
of the agreement and the price at which the unit was sold
to the
third party.
19.2.
Occupational rent for the period December 2008 to November 2009 in
the sum of R39 900-00.
19.3.
Levies for the period December 2008 to November 2009 being the sum of
R 4 258.80.
Difference
in purchase price
[20]
The plaintiff called attorney Steyn to prove the quantum of its
damages and explain the claim for R 45 000-00. Attorney Steyn
profited himself as an expert in that he was not only an attorney,
notary and conveyencer for a period of about 37 years but also
an
Estate Agent and property evaluator for about 20 years. He testified
about how he instructed his secretary to do searches by
"drawing
deeds office records". He thereafter compared the information
obtained with information he obtained from his
practice as an
appraiser in Phalaborwa. He presented no reports nor did his present
any empirical data on which he based his opinion.
Defendant's counsel
challenged his evidence as not meeting the requirements of an expert
witness. I am inclined to accept that
whilst the evidence of attorney
Steyn was presented in an honest manner, the absence of a report and
empirical data to support
his opinion causes his evidence to fall
short of that required for an expert witness. I accordingly find the
proof tendered by
the plaintiff in this regard to have been
inadequate.
Occupational
rent
[21]
Annexure A stipulated the date of occupation as June 2008. it is
however common cause that first defendant could not take occupation
as at that date because construction had not been completed at that
time.
[22]
Through plaintiff claims occupational rent no evidence was placed
before court to prove that the defendants were ever presented
with
any written notice stipulating on what date occupation could be
obtained. It appeared from the evidence of attorney Clark
that
defendants would not have been granted occupational rights because
they had not furnished a guarantee for the total purchase
price.
Physical occupation of the unit therefore appears to have been of
academic interest. The fact is, the defendants were never
provided
with keys to access to the "unit".
[23]
In my view, it was essential to put the defendants in mora by giving
them notice that the unit was ready for occupation and
thereafter to
serve them with the relevant invoices. This was never done and in the
absence of these essential step. The claim
of the plaintiff lacks the
necessary basis in fact and in law.
The
levies
[24]
Section 37
of the
Sectional Titles Act 95 of 1986
authorises a body
corporate to raise levies by levying contributions on owners.
Section
37(2)
stipulates that the liability for contributions accrues from
the passing of a resolution to that effect by the trustees. It was
the evidence of Mrs den Dunnen that a body corporate had been
established for the Wild Fig Development. In the circumstances
plaintiff
was not the correct party to sue for levies because it
lacked the necessary locus standi to recover levies. Levies could
only be
raised and levied by a properly constituted and registered
body corporate as stipulated by law.
[25]
No evidence was tendered that any decision by a properly constituted
body corporate had been taken to raise levies. There was
also no
evidence that such a resolution of a body corporate was ever conveyed
to the defendants.
[26]
In the circumstances, the plaintiff also failed to prove this claim.
[27]
For the reasons stated above, I find that the plaintiff failed to
prove that a binding and enforceable agreement was entered
into
between itself and the defendants. Further, plaintiff failed to prove
the quantum of its alleged claim.
[28]
Regarding costs, the plaintiff knew or ought to have known that when
it purported to sell immovable property to the defendant
without the
said property having been registered in its name was not lawful. It
is also quite significant that the sole member
of the plaintiff did
not find it necessary to testify in court in this regard. I therefore
find that an appropriate costs order
has to be made into this regard.
[29]
In the result the following order is made:
29.1.
The plaintiff's claim is dismissed.
29.2.
The plaintiff is ordered to pay costs on an attorney and own client
scale.
S.A.M
Baqwa
Judge
of the North Gauteng High Court