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2006
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[2006] ZAFSHC 98
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Khan NO and Another v Setseng Shopping Centre (Pty) Ltd (A64/2006) [2006] ZAFSHC 98 (31 August 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A64/2006
In the appeal between:
HAMIDA BIBI KHAN
N.O.
1
st
Appellant
AMOD
KHAN N.O.
2
nd
Appellant
and
SETSENG SHOPPING
CENTRE (PTY) LTD
Respondent
_____________________________________________________
CORAM:
BECKLEY, J
et
VAN
DER MERWE, J
et
VAN ZYL J
_____________________________________________________
JUDGMENT:
BECKLEY, J
_____________________________________________________
HEARD ON:
14 AUGUST 2006
_____________________________________________________
DELIVERED ON:
31 AUGUST 2006
_____________________________________________________
[1] The respondents (the
applicants in the Court
a
quo
)
approached the Court
a
quo on
an urgent basis for an interdict restraining the appellants
(respondents in the Court
a
quo
)
from continuing with building activities on certain erven and an
order directing the appellants to demolish and remove all fences
and
construction on the same erven. A rule
nisi
was issued and was confirmed on 8
December
2005 by Hattingh, J. The appellants thereafter noted an appeal to
this Court with the leave of the Court
a
quo.
[2] It was not in dispute
at the hearing in the Court
a
quo
that the respondent is the registered owners of the erven in
question, as appears from Title Deed TG23167/2001 and that the
registration
was effected in favour of the respondents on the 3
rd
of July 2001 pursuant to the provisions of the Deeds Registries Act,
Act no. 47 of 1937. The appellants, however, contend that they
have
a competing, and in fact, better title to the said erven as the
property in question comprises tribal land and was unlawfully
transferred to the predecessors of the respondents without the
knowledge or consent of the Makhalaneng Tribe, in which it is vested,
without any regard to the provisions of the Interim Protection of
Informal Land Rights Act, Act no. 30 of 1966. The appellants further
contend that they acting as the Trustees of the Hannida Family Trust
purchased the erven concerned from the tribe in September 2005
for
the sum of R100 000,00 and that they are therefore the lawful owners
of the said erven.
[3] At the hearing of the
matter in the Court
a
quo
,
Me. Gates requested that the matter be referred for the hearing for
oral evidence. The Court
a
quo
refused to accede to this request, and the reason advanced for the
refusal was that it was not in dispute that the applicant was
the
registered owner of the property, and that no
bona
fide
dispute of fact exists on the papers.
[4] In the course of the
hearing of the appeal in this Court, Me. Gates raised several issues,
which were disposed of in the course
of the hearing of the matter and
therefore need not to be considered. Her main and the only remaining
contention was that the Court
a
quo
erred in not referring the dispute regarding the ownership to trial
or for the hearing of oral evidence. The only issue that could
possibly have been so referred, is the question whether the
respondent or Makhalaneng Tribe were the owners of the said erven,
and
whether they, the tribe, have sold the erven to the appellants in
their capacity as Trustees as aforesaid. In order to determine
whether the appellants have shown on the papers that a
bona
fide
dispute exists, the following aspects have to be considered:
In
South Africa, we have a negative system of registration of immovable
property, where the Deeds Registry does not necessarily reflect
the
true state of affairs; (per Streicher, JA, in
CAPE
EXPLOSIVE WORKS LTD AND OTHERS v DENEL (PTY) LTD AND OTHERS,
2001 (3) SA 569
(SCA) at 579 E â F); It is therefore possible that
the legal owner of land may not be registered as the owner on the
Title Deed
if he has acquired his ownership by one of the original
methods of acquisition of ownership; (
The
Law of South Africa, Volume 14, page 27 paragraph 20)
and that, therefore, a transfer or registration of immovable property
can be challenged on a variety of grounds. To determine whether
the
applicants have shown whether any of these grounds are present, some
of the allegations in the Answering Affidavit have to be
considered:
The allegation that the
appellants have competing and in fact better title to the property as
the respondent, is, with respect, far
fetched and untenable. At
best for the appellants, the trust which they represent might be the
purchaser of some immovable property
from the tribe, but that is not
sufficient to vest the ownership of the property concerned in the
appellants or the said Trust.
Nowhere in the papers
however, is it alleged in what manner or when the tribe acquired
ownership in the property concerned, nor is
any reference made to
prescription as a means of acquiring ownership or to the provisions
of the Prescription Act, Act no 68 of 1969
in support of the
allegation that the tribe is in fact the owner of the property
concerned. In terms of the provisions of section
17 of the said Act,
the Court may not of its own motion take notice of prescription. See
also in this regard,
DE
JAGER EN ANDERE v ABSA BANK BEPERK
,
2001 (3) SA 537
(SCA) at 543 C â D. Despite the fact that the
papers contain no reference to prescription or the Act, the
appellants have in any
event not alleged that the members of the
tribe have occupied the property as if they were the owners thereof.
They, the members
of the tribe, were allegedly in undisturbed
possession and occupation of the property concerned at all material
times â allegations
which are insufficient to show on a balance of
probabilities that they became owners of the property concerned by
virtue of prescription,
and therefore also insufficient to show that
a
bona
fide
dispute of fact exists regarding the ownership of the property
concerned.
[5] In the absence of
sufficient details and particularity regarding the rights of the
tribe, and in particular the failure to rely
on prescription as a
basis on which the tribe may claim ownership of the property, the
appellants have failed to show that a
bona
fide
dispute of fact exists, and accordingly, the Court
a
quo
was
justified in refusing the request that the matter be referred for the
hearing of oral evidence. It therefore follows that the
appeal
cannot succeed.
[6] In
the result the appeal is dismissed with costs.
_______________
A. P. BECKLEY, J
I
concur.
________________________
C.H.G.
VAN DER MERWE, J
I
concur.
_____________
C. VAN ZYL, J
On
behalf of the Appellants: Adv. J. Gates
Instructed
by:
Martins
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv. S.J. Reinders
Instructed
by:
Claude Reid Inc.
BLOEMFONTEIN
/em