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[2009] ZAGPPHC 75
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Mthimunye and Others v Nyembe and Others (25351/2008) [2009] ZAGPPHC 75 (26 May 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH AND SOUTH
GAUTENG HIGH COURT, PRETORIA)
DATE: 26/05/2009
CASE NO: 25351/2008
REPORTABLE
In
the matter between:
FELANI
RICHARD MTHIMUNYE 1
ST
APPLICANT
SAMUEL
MTHIMUNYE 2
ND
APPLICANT
ANNA
MAHLANGU (BORN MTHIMUNYE) 3
RD
APPLICANT
And
SIBONGILE
ELLE NYEMBE 1
ST
RESPONDENT
MANTOA
FRANCINA RANTSHO 2
ND
RESPONDENT
DEEDS
REGISTRY OFFICE 3
RD
RESPONDENT
JUDGMENT
LEGODI, J
Introduction
1. In this application
the three applicants ask for relief as follows:
“
1. Declaring
the registration of immovable property situated at 1181 Section D,
Mamelodi West in the first respondent’s name
invalid and void.
2. Declaring the sale
of the said immovable property by the first respondent to the second
respondent invalid.
3. Declaring the said
immovable property be re registered in the applicant’s
name as the title holder thereof on behalf
of the other …
4. Costs.
5. Further and or
alternative relief
.”
Background
2. The three applicants
are siblings. They had a brother by the names of Charles Mthimunye
(hereinafter referred to as the deceased)
who passed away on
5 April 2003.
3. At the time of the
deceased death, he was married to the first respondent. A parent of
the applicants and the deceased owned
a house described as Erf 1181
Section D, Mamelodi West (hereinafter referred to as the house).
4. After the death of the
parent, aforesaid, the siblings met at the office of Mamelodi Town
Council to discuss how they should
deal with the house since the
parent died intestate. It was then decided that the deceased should
take care of the house on behalf
of all the siblings.
Subsequent to the
agreement, which was endorsed by the municipality on
23 February 1989, a certificate of Registered
Rights of
Leasehold was issued to the deceased on 23 December 1992.
5. In a letter of
19 April 2005, addressed to the first respondent by the
applicants, the first respondent was reminded
that the deceased did
not own the house, but rather that he was a caretaker of the house on
behalf of all his siblings. The letter
was prompted by the rent bill
account which was issued in the names of the first respondent.
6. On 23 January
2008 a deed of transfer in respect of the house was issued in favour
of the second respondent that is, the
house was transferred into the
names of the second respondent. This was after the second respondent
had purchased the said house
from the first respondent.
7. The applicants now
seek to undo the agreement between the first respondent and second
respondent as it appears from prayers 1
to 3 quoted earlier in
paragraph 1 of this judgment.
8. When this matter was
argued before me, I requested the parties to prepare full heads of
argument on whether the second respondent
was a
bona
fide
purchaser and if so, whether the applicants should be entitled to the
relief sought in terms of their prayers. The other issue
which was
raised by counsel on behalf of the second respondent was that the
application should be dismissed for non joinder.
Discussions,
Submissions and Findings
I find it necessary to
immediately deal with the issue of non joinder. The issue was
raised in the respondent’s heads
of argument. It was also
argued before me. The suggestion was that the municipal should have
been joined to the proceedings
or as I understood the submissions
the municipality should have bee made aware of the proceedings.
None of the parties referred
me to the notice entitled “NOTICE
TO THIRD PARTY” which now form part of the papers.
Notice to Third Party
10. In the heading of the
notice, the municipality is cited as a third party.
11. Municipality
acknowledged receipt of the notice on 24 October 2008. It
looks like this notice was accompanied by
the notice of motion and
other papers in the present proceedings. The municipality did not
respond to the notice served upon it
on 24 October 2008.
12. This notice should be
found to be sufficient for the purpose of alerting the municipality
to the proceedings and if it elected
not to respond thereto, one
should be entitled to assume that the municipality was prepared to
abide by the decision of the court.
13. Coming back to the
applicants’ prayers, the applicants in the supplementary heads
of argument, and under a paragraph titled
“RIGHTS OF PURCHASER”
state as follows:
“
The applicants
submit that the second respondent bought the immovable property bona
fide
.”
14. Having said this and
having cited some authorities dealing with remedies available to an
innocent party to a fraud transaction
counsel for the applicants
concluded as follows:
“
It is submitted
that the bona fide purchaser can claim for repayment of the purchase
price or sue extempto rescission, restitution
and damages from the
seller.
”
Based on this submission, it is submitted that the applicants should
be entitled to the relief sought.
15. An innocent party to
an agreement induced by fraud or tainted with fraud has an election
to make. He or she can decide either
to cancel the contract or to
enforce it.
16. In the instant case,
there has already been an enforcement of the agreement. The property
in question has already been transferred
into the names of the second
respondent and in all probabilities the first respondent has already
received the purchase price.
17. The real issue as I
see it, is whether the applicants have established a cause of action
against the second respondent. No
allegation is made against the
second respondent that at any time before the registration of the
property into his name, was he
aware that the first respondent may
not have been entitled to sell the house or that she may not have
been the owner.
18. Similarly, the second
respondent raised no defence that he was not aware that the first
respondent may not have been entitled
to sell the house in question.
All what he avers is that the house is registered in his names.
19. Regarding the cause
of action against the second respondent, the fact that the house
might be belonging to the family members
of the applicants and that
therefore, the first respondent was not entitled to sell the house,
cannot in my view, serve to establish
a cause of action against the
second respondent in the absence of any knowledge by the second
respondent to this effect.
20. I am mindful of the
fact that joint ownership of family property has evolved as a culture
or custom in our society. Such practice
has become an institution
which has for many years played and continues to play a very
important role in family matters.
21. The modernised way of
distributing wealth in a family and in the form of a will, continues
to be resisted by the larger part
of our society and sometimes
understandably so. There is always a desire to keep a family unit
intact, by not suggesting that
some members are or were more loved
than the others.
22. Siblings in a family
should see themselves as a unit extending that family where their
parents left off. For example, a property
like a house left by
parents, is something seen as a place where all children of the
deceased parents should come together to celebrate
or discuss family
matters. If one or more of the siblings have no place of their own
to stay, such a sibling or siblings would
be allowed to take
occupation of the deceased parents’ home, but not as his or
hers. He or she will take care of it and at
the same time enjoying
the use of the house. In the present case, the deceased sibling,
Charles Mthimunye was allowed to make
use of the house and at the
same time to keep it on behalf of every sibling. Such an arrangement
is not strange amongst the majority
members of our society. I should
not be understood to be making a final finding against the first
respondent in this regard.
I am just mentioning it, because the
first respondent decided not to file any opposing affidavit.
23. However, the real
issue as I said, is whether the applicants have made out a case for
the relief sought against the second respondent.
I am not satisfied
that the applicants’ averments in the founding affidavit
disclose a cause of action against the second
respondent. Whilst a
concession has been made by counsel on behalf of the applicants, and
in particular to the effect that the
second respondent is a
bona
fide
purchaser, I am not inclined to dismiss the application on the basis
of this concession. I am of the view that it would be appropriate
not to make an order in this regard. This would have the effect of
entitling the applicants either to supplement their prayers
or to
bring the application afresh. The applicants could also elect to sue
the first respondent for damages.
24. Consequently an order
is made as follows:
24.1 No order is made in
regard to prayers 1 to 3 of the applicants’ notice of motion.
24.2 The applicants
ordered to pay the costs of the application, jointly and severally,
the one paying the other to be absolved.
M F LEGODI
JUDGE OF THE NORTH
GAUTENG HIGH COURT
Heard on
: 30/03/2009
For
the Applicants
:
Adv AH Boshielo
Instructed
by
: Mapulana
Maponya Inc, Pretoria
For
the Respondents
: Adv
LM Moloisane
Instructed
by
: Pule
Incorporated, Pretoria
Date
of Judgment
: 26/05/2009