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[2012] ZAFSHC 187
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Mabusa v Mabusa and Others (2458/2012) [2012] ZAFSHC 187 (11 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2458/2012
In the matter between:
ANNA TSELENG MABUSA
..........................................................
Applicant
and
TEKO DAVID MABUSA
....................................................
First
Respondent
ANTON OLIVE
NOORDMAN N.O.
..............................
Second
Respondent
LEHLOHONOLO PATRICK
DICHABA
...........................
Third
Respondent
THE REGISTRAR OF
DEEDS
......................................
Fourth
Respondent
_______________________________________________________
HEARD ON:
20 SEPTEMBER 2012
_______________________________________________________
JUDGMENT:
LEKALE, J
_______________________________________________________
DELIVERED ON:
11 OCTOBER 2012
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] This is an opposed
application for an order, effectively, interdicting the fourth
respondent from transferring the property
known as Erf 4518, Heidedal
Extension 10, Bloemfontein (property) to the third respondent or any
other person or entity pending
the final determination of,
inter
alia
, proceedings, which the applicant intends to institute, for
the declaration of the Deed of Sale entered into between the second
and third respondents as null and void.
[2] The applicant and the
first respondent were married to each other in community of property
until the 19
th
March 2008 when the marriage was dissolved
in terms of a court order which,
inter alia
, directed that the
joint estate be divided between them.
[3] The property herein
forms part of their joint estate and the applicant occupies the same
together with the minor child born
of their marriage.
[4] The parties were
unable to liquidate and divide the estate on their own and the first
respondent, eventually, applied successfully
to the magistrate’s
court for regional division for the appointment of the second
respondent to receive and liquidate the
joint estate on the 28
th
November 2011.
[5] On the 8
th
February 2012 the second respondent caused the property to be sold by
public auction and the third respondent’s bid of R319
000,00
was accepted ahead of the applicant’s offer of R200 000,00 as
the highest bid.
[6] On the 20
th
February 2012 the second respondent accepted the third respondent’s
offer after affording the applicant a vain opportunity
to beat the
third respondent’s offer.
[7] The applicant felt
aggrieved by the state of affairs and launched the present
proceedings on the 13
th
June 2012 on an urgent basis. On
the 14
th
June 2012 the matter was postponed with the
second respondent undertaking not to transfer the property pending
finalisation of
the application.
[8] The second
respondent, thereafter, delivered opposing papers and on the 26
th
July 2012 leave was granted for the parties to deliver supplementary
papers as,
inter alia
, the position of the second respondent
in the proceedings was not clear and it was, further, not apparent if
the first and third
respondents were opposing the application. There
is no appearance for the fourth respondent and no relief is sought
against that
office.
ISSUES IN DISPUTE
[9] The respondents,
effectively, raise a preliminary point of non-joinder of the
auctioneer and, further, dispute that the applicant
is entitled to
the relief she seeks on the basis that she has not shown a
prima
facie
right to the relief in question.
CONTENTIONS FOR THE
APPLICANT
[10] In the founding
affidavit the applicant relies on a contract allegedly concluded
between herself and the first respondent for
the sale of the latter’s
half share in the property.
[11] In the supplementary
affidavit the applicant relies on her constitutional rights to
adequate housing and against arbitrary
deprivation of property by
contending that the appointment of the second respondent as a
receiver and liquidator violates the same.
[12] In the heads of
argument and oral submissions Mr Le Roux, for the applicant, contends
at length that the Deed of Sale in respect
of the third respondent’s
offer is invalid because it is not properly signed and that there
exists clear evidence of bias
on the part of the second respondent
insofar as he accepted instructions from the first and the third
respondents to oppose the
application.
CONTENTIONS FOR THE
RESPONDENTS
[13] The respondents
contend,
in limine
, that the auctioneer has a direct and
substantial interest in the matter and is, as such, a necessary party
who should have been
joined in the proceedings.
[14] It is, further,
maintained by the respondents that the contract of sale on which the
applicant relies as giving her the right
or entitlement to the
property was not signed by the applicant and, as such, is not a Deed
of Alienation required and contemplated
by the Alienation of Land
Act.
[15] The respondents’
case is, further, that the provisions of section 45(bis) of
Deeds
Registries Act, No 47 of 1937
are not available to the applicant
because of,
inter alia
, want of such a written sale agreement.
[16] In conclusion it is
contended for the respondents that the relevant constitutional rights
of the applicant have not been violated
in any manner whatsoever
insofar as the cases relied upon by the applicant apply to sales in
execution of primary residences and
not insolvency or liquidation
auctions or sales facilitated by a receiver and liquidator of joint
estates.
[17] Mr Gilliland, for
the respondents, submits that the relief sought has not been thought
through insofar as neither the applicant
nor the court can compel the
first respondent to sell his undivided share in the property to the
applicant.
APPLICABLE LAW
[18] It is correct, as
effectively submitted for the respondents, that the legal rule is
that any person who has a direct and substantial
interest in any
order the court might make, should be joined in the proceedings, as a
necessary party, unless he has waived his
right to be so joined. (See
STANDARD BANK OF SOUTH AFRICA LTD v SWARTLAND MUNICIPALITY AND
OTHERS
2011 (5) SA 257
(SCA) at 259 F – G.)
[19] A mere financial
interest in the outcome of litigation does not give a party the right
to be joined in legal proceedings or
put differently, it does not
constitute a direct and substantial interest in the results of the
decision. The interest contemplated
is one in the right which is the
subject matter of the litigation in question. (See
HENRI
VILJOEN (PTY) LTD v AWERBUCH BROTHERS
1953 (2) SA 151
(OPD)
at 169 H.)
[20] In the present
application, as correctly submitted by the parties, the applicant
must establish a
prima facie
right which she seeks to protect,
a well-grounded apprehension of irreparable harm, a balance of
convenience in favour of the granting
of the relief she seeks as well
as the absence of any other satisfactory remedy. (See
SETLOGELO
v SETLOGELO
1914 AD 221.)
[21] The
prima facie
right contemplated in interdictory remedies is the right in the
relief sought. In other words the applicant for interdictory relief
should have an interest in the subject matter of the interdict which
interest may be financial or any other legal interest. (See
CABINET
OF THE TRANSITIONAL GOVERNMENT FOR THE TERRITORY OF SOUTH WEST AFRICA
v EINS
1988 (3) SA 369
(A) at 388 – 389 and
JACOBS
EN 'N ANDER v WAKS EN ANDERE
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 533 J –
534 E.)
[22] Legislative
provisions and rules of court which allow sales in execution of
residential properties to be authorised without
judicial oversight
are unconstitutional in that they violate judgment debtors’
constitutional rights to housing. (See
JAFTHA v SCHOEMAN AND
OTHERS; VAN ROOYEN v STOLTZ AND OTHERS
[2004] ZACC 25
;
2005 (2) SA 140
(CC)
and
GUNDWANA v STEKO DEVELOPMENT AND OTHERS
2011 (3) SA
608
(CC).)
[23] A court of divorce,
inclusive of regional courts, has the power to appoint a receiver and
liquidator to collect, realise and
divide the estate. (See
section
2(1)
of
Divorce Act, No 70 of 1979
and
GILLINGHAM v GILLINGHAM
1904 TS 609.)
[24] As correctly pointed
out by Mr Le Roux the courts or receivers and liquidators are allowed
a wide equitable discretion to achieve
a result which is both fair to
the parties and sensible in the circumstances of each case when
liquidating and dividing the estate
or a partnership practice. (See
VAN ONSELEN NO v KGENGWENYANE
1997 (2) SA 423
(BSC) at
429 F – H.)
NON-JOINDER
[25] I am not persuaded
that the auctioneer is a necessary party who should be joined in the
present proceedings regard being had
to the fact that his interest in
the matter is purely financial insofar as it is limited to the
commission payable to him in line
with the conditions of sale
concluded with the third respondent.
[26] Even if I am wrong
in the aforegoing finding, I am satisfied that a formal joinder is
not necessary regard being had to the
fact that the auctioneer
deposed to an affidavit confirming and supporting the respondents’
case. He is, thus, fully aware
of the proceedings and had an
opportunity to make common cause with the respondents. (See
VAN
ONSELEN NO v KGENGWENYANE
,
supra
, at 425 C – D.)
PRIMA FACIE
RIGHT
[27] The parties are in
agreement that the applicant is obliged to prove, as one of the
requirements for the relief she seeks, a
prima facie
right to
the interdict insofar as she seeks an interim relief.
[28] The question is,
therefore, whether or not she has an interest in the subject matter
of the relief in question. The question
may be posed as follows: Does
the totality of the evidence before the court show that the applicant
might be affected substantially
by the transfer of the property to
the third respondent. Alternatively the question is: Should the
applicant obtain a final relief
at the trial on the facts presently
before the court. (See
GOOL v MINISTER OF JUSTICE AND ANOTHER
1955 (2) SA 682
(C) at 688.)
[29] In the founding
affidavit the applicant relies on alleged Deed of Sale concluded
between herself and the first respondent in
respect of the property
in question. In the supplementary affidavit she effectively relies on
her constitutional right to adequate
housing and/or right against
arbitrary eviction in her claim to the relief sought.
[30] The respondents,
effectively, deny the existence of a Deed of Sale between the
applicant and the first respondent and, further,
dispute that the
applicant’s constitutional rights are implicated by the sale of
the property to the third respondent and
the appointment of the
second respondent to receive, liquidate and distribute the joint
estate.
[31] I am satisfied that
the court order appointing the second respondent as receiver and
liquidator effectively vests the relevant
joint estate in the second
respondent.
[32] I am, further,
persuaded by the material before me that the applicant effectively
supported the appointment of the second respondent
insofar as she
deposed to the effect that she did not oppose the appointment because
she,
inter
alia, also wanted the estate to be divided and
finalised.
[33] It is, further,
clear that no valid Deed of Sale exists between the applicant and the
first respondent insofar as it is not
disputed by the applicant that
only the first respondent signed the relevant document. This fact was
common cause between the applicant
and the first respondent as early
as the date on which the second respondent was appointed to receive
and liquidate.
[34] I am, further,
convinced, as correctly submitted for the respondents, that the
Constitutional Court decisions relied upon by
the applicant in her
contentions that her constitutional rights to adequate housing and
against arbitrary eviction are violated,
with respect, are irrelevant
to the issue insofar as they deal with sales of residential property
in execution of court judgments.
In the present matter the sale by
public auction was authorised by the court which appointed the second
respondent to,
inter alia
, sell by public auction as opposed
to authorisation by court registrars and clerks of court which take
place without judicial oversight.
[35] I may mention that
after the appointment of the second respondent to receive, liquidate
and distribute the joint estate, the
applicant and the first
respondent were divested of the joint estate and their only interest
in the same became pure financial
in nature. The said appointment
came as a last measure to ensure fair division after the parties had
failed to attain the same
on their own.
[36] The applicant
intends to assail the sale of the property to the third respondent on
the ground of alleged invalidity. I am,
however, not persuaded, on
the facts, that such a claim enjoys reasonable prospects of success
regard being had to the fact that
the second respondent is the
authorised seller, as correctly submitted by Mr Gilliland, and
neither the applicant nor the first
respondent is a necessary party
to such a sale.
[37] The applicant is,
further, intent on having the court order appointing the second
respondent interfered with on the basis that
it violates her
constitutional rights. For reasons set out in paragraph [34] above I
am not persuaded that such a relief is available
to the applicant on
the facts before me.
[38] The applicant also
wishes to have the second respondent removed from office on the
grounds of lack of objectivity or neutrality.
I am, however, not
convinced that this claim enjoys reasonable prospects of success. In
this regard it should be noted that the
source of the applicant’s
grief is the non-acceptance of her offer by the second respondent. It
is, however, common cause
between the parties that the second
respondent kept the applicant informed of the arrangements pertaining
to the public auction
and, further, allowed her a second opportunity
to make an offer for the property well after the auction date and
before the third
respondent’s offer was accepted. The deadline
was communicated to the applicant and her attorney. Not only the
interests
of the applicant were at stake when the best offer was
accepted. The first respondent’s interests were also part of
the equation.
The role played by the second respondent in opposing
the present application is, in my view, not relevant to the issue
herein in
the light of the fact that it was exhibited after the fact
of acceptance of third respondent’s offer. It is, in my view,
doubtful that an inference of bias may fairly and properly be drawn
from such a role regard being had to the fact that both the
applicant
and the first respondent stood to benefit equally from the net
proceeds of the sale.
[39] On the facts before
the court, the applicant is, in my view, not likely to obtain a final
relief at the trial.
APPREHENSION OF
IRREPARABLE HARM
[40] Even if I am wrong
in the finding relating to a
prima facie
right, I am not
persuaded, on the facts, that there exists a reasonable apprehension
of irreparable harm on the part of the applicant.
[41] It is contended for
the applicant that if the property is sold, she would lose her house
and she would not be able to buy another
house of the same value.
[42] It is, in my view,
worth noting that the applicant does not have sole claim to the house
and is entitled to a half share of
the same. I am, further,
satisfied, as correctly submitted by Mr Gilliland, that to be
entitled to an exclusive claim to the property
the applicant needs
the first respondent’s consent.
[43] In my judgment, if
the applicant is successful in any of the proceedings she intends to
institute, it would not be impossible
to reverse the transfer of the
property to the third respondent. In this regard it may only be
pointed out that Mr Le Roux correctly
noted that in the
Constitutional Court decisions referred to above, the Court
effectively reversed the transfers involved.
BALANCE OF
CONVENIENCE
[44] In the light of the
above findings I am not convinced that the balance of convenience is
in favour of the granting of the order
requested by the applicant.
AVAILABILITY OF
OTHER SATISFACTORY REMEDIES
[45] As pointed out in
paragraph [43] above the applicant may still secure an order
reversing the transfer if she is eventually
successful in any of the
claims she intends to lodge in respect of the property.
COSTS
[46] On the 14
th
June 2012 and the 26
th
July 2012 when the matter was
postponed the question of costs stood over for determination at a
later stage.
[47] Mr Gilliland
specifically asks for costs against the applicant inclusive of the
reserved costs.
[48] On behalf of the
applicant, Mr Le Roux points out that the applicant will simply not
be able to pay the costs.
[49] I am, however, not
persuaded that there exists cause, either in law or equity, for a
departure from the general practice regarding
costs.
ORDER
[50] In consequence the
application is dismissed with costs including reserved costs.
______________
L. J. LEKALE, J
On behalf of applicant:
Adv L A le Roux
Instructed by:
Mabalane Soabe Attorneys
CCMA Building
BLOEMFONTEIN
On behalf of first and
third respondents: Adv J G Gilliland
Instructed by:
Q B Grimbeek Attorneys
61 Kellner Street
BLOEMFONTEIN
On behalf of second
respondent: Adv J G Gilliland
Instructed by:
Matsepes Inc
Aliwal Street
BLOEMFONTEIN
/sp