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[2011] ZAKZDHC 42
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Mkhize and Another v Mabija NO (782/1998) [2011] ZAKZDHC 42 (5 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE NO. 782/1998
IN
the matter between:
BONGINKOSI
EDWARD MKHIZE
….......................
FIRST
PLAINTIFF
NOMUSA
JOYCE MKHIZE
…...............................
SECOND
PLAINTIFF
AND
CEDRICK MABIJA NO
…................................................
DEFENDANT
JUDGEMENT
RADEBE
J
INTRODUCTION
This matter came before me on the
basis of a stated case in terms of Rule 33 (4) for the determination
of a question of law, without
any oral evidence being led.
BACKGROUND
2. The Defendant, Cedrick Mabija NO,
is cited in his representative capacity as the Executor of the Estate
of the Late Pumla Grenna
Sangqwane (formerly Mabija) who died on 19
November 2007, (“the deceased”). He substitutes the
deceased as Defendant
and reference to the Defendant shall mean (the
Late Pumla Mabija). The Plaintiffs are the registered owners of the
immovable property
known as F1495 Ntuzuma Township (“the
immovable property”) Mafika Douglas Sangqwane (“Sangqwane”)
is the
former (divorced) husband of the Defendant.
Page 2
3. The agreed facts are as contained
in the schedule which is attached hereto as Annexure “A”
and I do not intend writing
it out again but will in due course make
comments and/or my views on certain aspects, namely item 1. The
Bundle of the agreed documents
is “Annexure B”.
SUBMISSIONS
The issue to be decided by court
revolves around the Defendant’s counterclaim. In his address
the Plaintiff’s Counterclaim.
In his address the Plaintiff’s
Counsel submitted:
4.1
that
the legal issue must be decided in Plaintiff’s favour and that
the Defendant’s Counterclaim be dismissed with costs,
on the
bases that:
(i)
Plaintiff (as third parties) relied in good faith on the
data
in the Deeds Office Title Deed showing only
Sangqwane
as the owner of the immovable
property,
and purchased it from him in good faith;
and;
(ii)
Both parties had a serious intention to pass and
receive
transfer, respectively.
4.2 that the Plaintiffs be entitled
to an order for the eviction of eviction of Cedric Mabiya and all who
occupy the immovable property
in or under him in accordance with
their claim in convention.
Page 3
4.3 that the Plaintiffs’ claim
in convention be adjourned to the expedited trial roll on a date to
arranged with the Registrar
pending compliance by the Plaintiffs with
the provisions of the Prevention of Illegal Eviction from and
unlawful Occupation of
Land Act, No. 19 of 1998.
5. On the other hand, the
Defendant’s Counsel submitted that:
the Plaintiffs cannot rely on a void
Purchase and Sale Agreement concluded with Sangqwane, as the latter
was not the rightful owner
of the property; that she was in lawful
occupation of the property; that the property formed the joint estate
of herself and Sangqwane
whom she divorced on 18 April 1995, by
virtue of their marriage in community of property; that upon the
decree of divorce the Defendant
acquired Sangqwane’s right,
title and interest in and to his half share in the property by virtue
of the divorce order, which
stated inter alia that:
“
The
parties will each retain the assets he/she possessed at 5/11/1993”.
Page 4
6. In her Counterclaim the Defendant
cited the Registrar of Deeds and Douglas Sangqwane as Defendants. She
claimed the following:
“
(a)
an Order declaring the alienation of the property
situated
at F1495 Ntuzuma Township, Ntuzuma,
KwaZulu-Natal
(hereinafter referred to as “the
property”)
by Mafika Douglas Sangqwane or any
other
person or legal person to the First and Second
Plaintiffs
to be invalid,
void ab initio
and of force and
effect;
(b)
an Order declaring the Defendant to be lawful owner
of
the property;
(c)
an Order setting aside the registration of transfer of
ownership
of the property into the name of the First
and
Second Plaintiffs in the records of the registrar
of
Deeds for the Province of KwaZulu-Natal;
an
Order directing the Registrar of Deeds for the
Province
of KwaZulu-Natal to transfer ownership
of
the property out of the name/names of Mafika
Douglas
Sangqwane and/or the First and Second
Plaintiff
in favour of the Defendants”.
The basis of Defendant’s
Counterclaim is that:
she was married to Sangqwane
during or on about 1975 until
1995;
Page 5
on 18
th
April 1995 the
marriage dissolved by way of a decree of divorce issued by the
North Eastern Divorce Court on 18
th
April 1995;
the Court Order indicated, amongst
other things, that “the parties will each retain the assets
he/she possessed as at
5/11/1993”;
as at 5/11/1993 Defendant was
resident at the property;
in accordance with the said
divorce order and the agreed facts, it is argued that Defendant
obtained full ownership of the property
and Sangqwane alienated all
of his right title and interest in and to his half share of the
property in favour of Defendant.
8. Firstly, I will deal with the
issue raised by the Defendant as a basis of her Counterclaim in
paragraph 9 thereof and those issues
agreed upon by the parties in
the stated case i.t.o. Rule 33(4). in paragraphs 1 & 4 (namely
the marriage of 1975 and the divorce
of 1995).
9. It is trite that all Black
(African) persons who were married by civil rites prior to the
commencement on 1 November 1984 of
the
Matrimonial Property Act, No.
88 of 1984
, were married according to the provisions of the Black
Administration Act, No 38 of 1927. The marriage certificate which
appears
on page 32 of
the Bundle, (Annexure B)
ex
facie
shows that the parties’ marriage was governed by
Act 38 of 1927.
Page 6
The Defendant and Sangqwane were
married in 1975 prior to the commencement of the Matrimonial Property
Act, No. 88 of 1984 (the
MPA).
10. The now repealed Section 22(6)of
the Black Administration Act (BAA) read as follows:
“
A
marriage between Blacks, contracted after the commencement of this
Act, shall not produce the legal consequences of the marriage
in
community of property between spouses: Provided that in the case of a
marriage contracted otherwise than during the subsistence
of a
customary union between the husband and any woman other than the
wife, it shall be competent for the intending spouses at
any time
within one month previous to the celebration of such marriage to
declare jointly before any magistrate, commissioner or
marriage
officer (who is hereby authorised to attest to such declaration) that
it is their intention and desire that community
of property and of
profit and loss shall result in their marriage, and thereupon such
community shall result from their marriage
except as regards any land
in a location held under quitrant tenure, such land shall be excluded
from such community”.
The marriage certificate which appears on page 32 of the bundle does
not represent such a declaration.
The repeal of the said Black
Administration Act (BAA) and 22(6) thereof does not have
retrospective effect. The effect of such a
marriage is that each
spouse retained the ownership (not possession) of his or her own
property. This is also reinforced in the
case of
Ex
Parte Minister of Native Affairs: in re: Molefe vs Molefe 1946 (AD)
315.
Page 7
11.
Section 36(b)
of the
Matrimonial
Property Act introduced
ss 3
,
4
,
5
&
6
into Section 7 of the
Divorce Act, 70 of 1979 (by virtue of which Act the Decree of Divorce
referred to was obtained. Section 7(3)(4)(5)
and (6) of Act 70 do
apply to such marriages governed by s 22 of Act 38 of 1927but can
only be invoked by pleadings in a proper
way. Section 7(3) of Act 70
of1979 empowers a Court granting a divorce i.r.o. certain marriages,
on application by one of the parties
to that marriage, to order the
transfer to such party of some of the assets of the other party to
the person so applying.
12. More specifically, “
Section
7(6) empowers the court, at the request of the party being ordered to
transfer part of his or her assets to the other party,
to impose
certain conditions ameliorating the order to transfer assets by means
of such deferment or other conditions as the court
may deem just”.
The order issued by the Divorce
Court is silent on whether such transfer of immovable property ought
to have taken place and Defendant
has not shown such entitlement.
What the said order does is merely
confirm a personal right of occupation to the Defendant which right
is not indefinite. It does
not change or purports to make Sangqwane
change his ownership of the immovable property.
Page 8
13. It cannot, therefore, be said
that the decree of divorce of
18 April 1995 presupposes a division
of the estate, nor forfeiture of benefits (ownership of the property)
against Sangqwane, nor
a redistribution contemplated by
section 7(3)
of the
Divorce Act. The
agreement between the parties as outlined in
paragraph 1 of the Agreed Facts in Annexure A, cannot change the law.
14. Nothing precluded the Defendant
and Sangqwane to invoke the provision of
Section 25(3)
of the
Matrimonial Property Act, No. 88 of 1984
during the subsistence of
their marriage.
Section 25(3)
states as follows:
“
25(3)
Notwithstanding anything to the contrary in any law, or the common
law contained, the spouses to a marriage entered into before
the 2
December 1988 commencement of the Marriage and Matrimonial Property
Law Amendment Act 3 1988, and in respect of which the
matrimonial
system was governed by section 22 of the Black Administration Act,
1927 (Act 38 of 1927), may” –
if they are married in community of
property, cause the provision of Chapter 2 (Abolition of Marital
Power) and chapter 3 (marriages
in community of property) including
section 15 (2) – (powers of spouses) of this Act, to apply to
their marriage; or,
Page 9
if they are married out of
community of property and the wife is subject to the marital power
of the husband, cause the provision
of chapter 2 of this Act to
apply to their marriage;
“
by
the execution and registration in a registry within two years of the
said commencement (2 December 1998) or by such longer period
but not
less than six months, determined by the Minister by Notice in the
Gazette, of a notarial contract to that effect, and in
such a case
those provisions apply from the date on which the contract was so
registered.”
The application could be made in
terms of section 21(1) of Act 88 of 1984.
In casu
, there is no evidence
that the Defendant and her ex-husband Sangqwane, made that
registration. It cannot be said that the decree
of 18 April 1995 is
evidence but there was community of property in the absence of any
proof that the required declaration had
been made alternatively that
the parties had agreed to a redistribution order in terms of
Section
7(3)
of the
Divorce Act, No. 70 of 1979
no that such an application
in terms of
section 21(1)
of Act 88 of 1984 was made.
15. The second point raised by the
Defendant in her counterclaim
is that the alienation of the
property by Sangqwane is invalid and
void Ab initio
. This now
brings us to the determination of whether Sangqwane was the owner
(entitled to alienate, mortgaged or do whatever he
desired with the
property subject to lawfulness thereof.
Page 10
Ownership is defined in section 102
of the Deed Registries Act no. 47 of 1937 as follows:
“
owner”
means in relation to
immovable property, subject to
paragraph (b) the person registered as the owner or holder thereof
and includes… the executor
of any owner who has died or …”
immovable property, real rights in
immovable property and notarial bonds –
…
which are registered in the name
of only one spouse and which forms part of the joint estate of both
spouses in a marriage in
community of property, either one or both
spouses.
…
which are registered in the name
of only one spouse and which forms part of the joint estate of both
spouses in a marriage in
community of property to which the
provisions of Chapter 3 of the
Matrimonial Property Act 88 of 1984
are not
applicable.
Page 11
16. Therefore the Defendant never at
any stage qualified as an owner since there was never a joint estate
in the first place. The
marriage regime entered into did not produce
the consequences of a marriage in community of property, nor does the
decree of divorce
purport to have encompassed the provision of
section 7
of the
Divorce Act.
The Defendant occupied the property
during her lifetime and such occupation gave her possessory rights
not ownership rights. She
had at the most up until the property was
sold to the Plaintiffs a personal right. Such a right cannot be
equated to a usufruct
and was not even registerable.
17. The second point raised by the
Defendant in her Counterclaim is that the alienation of the immovable
property by Sangqwane to
the First and Second Plaintiffs is invalid,
void ab initio
and of no force effect, and stands to be set
aside. Counsel for the Plaintiffs, submitted that as at the date of
the sale of the
property, Sangqwane as the registered owner of the
property as at the date of the conclusion of he written agreement of
sale with
the Plaintiffs, was vested with all the rights of ownership
of the property, including the
dominium
in the property. I
have already addressed the issues of ownership in paragraph 15 above.
Page 12
18. All parties agree that the
Plaintiffs were innocent transferees. There was no way they could
have been aware of the rights of
the Defendant save that they ought
to have been aware that she occupied the property. It is a known fact
that before a loan for
finance is granted, the mortgagee would
inspect the property to see if any value can be found. The
Plaintiff’s purchased
the property through home loan granted by
Ithala Bank against a mortgage bond over the said property registered
as B000010/96 for
the sum of R39 478 with an additional amount of R7
896.00. They have been deligently paying the bond premiums still owe
an amount
of R29 329.79 as at 30/11/2007. In this regard refer to
pages 7-29 of Annexure B. This supports the contention that they are
bona fide
purchasers as, if they were not, they would have
abandoned or defaulted in payment as early as in 1998 when it became
apparent
that the Defendant was not prepared to vacate the property
to enable the Plaintiff to take vacant occupation.
19. The different systems of
transfer identified by the Plaintiffs are usual to consider, viz; the
casual system whereby ownership
is passed dependent on the existence
and validity of a causa giving rise to the transfer (
the justa
causa
). I refer to the submission by Mr Combrinck, that:
“
if
such a causa is a sale and the sale is invalid on the grounds of
mistake, incapacity of one of the parties or because the formal
requirements have not been complied with, the passing of ownership is
also void”.
Page
13
With reference to the actions of Mr
Sangqwane, there was nothing precluding him from selling the property
and causing transfer to
pass to the Plaintiffs for reasons I already
stated elaborately when dealing with the first aspect of the nature
of marriage and
the decree of divorce, and in respect of the
definition of the “owner”.
20. The other system of transfer of
ownership is the abstract system. Even if one looks at the abstract
system of transfer it becomes
immaterial whether an agreement is void
or voidable. The necessary intention of the seller, Sangqwane, and
that Plaintiffs is evident
from the written Deed of Sale as well as
from the passing of the mortgage bond in favour of Ithala.
21. The Plaintiffs, as I have said,
relied in good faith on the data in the Deeds Office, which in my
view, correctly reflected
Sangqwane as the owner of the immovable
property. There is no evidence to suggest that Sangqwane had been
married (to another person)
when he entered into the contract of
sale, signed transfer documents and made marital status declarations
which the Deeds Registrar
would require of him before registering the
transfer. Furthermore, inspection of the Title Deed (page 5-6 of
Bundle B) shows that
there was neither a caveat nor any other
endorsement on the property save for the charge in favour of the
Township Manager-
BC 000008/96, which was cancelled
prior to transfer to the Plaintiffs being effected.
Page 14
22. In the result I find that the
Plaintiffs were entitled to take transfer of the immovable property,
and are accordingly entitled
to an order for the eviction of Cedric
Mabija and all those who occupy the property in or under him,
provided they comply with
the provisions of the PIE Act.
I therefore make the following
order:
the Defendant’s Counterclaim
is dismissed with costs;
the Plaintiffs’ claim in
convention is adjourned to the expedited trial roll on a date to be
arranged with the Registrar,
pending compliance by the Plaintiffs
with the provisions of the Prevention of Illegal Eviction from an
Unlawful Occupation
of Land Act no. 19 of 1998.
_____________
RADEBE J
Counsel for the Plaintiff : Adv. P.J.
Combrick
Instructed by: Shepstone & Wylie
Attorneys
Counsel for the Defendant: Adv. N.
Winfred
Instructed by:
Judgment handed down on: 05/05/2011