Cindi v Cindi (1261/01) [2003] ZANCHC 53 (23 April 2003)

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[2003] ZANCHC 53
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Cindi v Cindi (1261/01) [2003] ZANCHC 53 (23 April 2003)

Verslagwaardig:
JA/NEE Sirkuleer onder
Regters: JA/NEE
Sirkuleer onder Landdroste:
JA/NEE
IN DIE HOOGGEREGSHOF VAN SUID-AFRIKA
IN
THE HIGH COURT OF SOUTH AFRICA
(Noord-Kaapse
Afdeling / Northern Cape Division)
Case No: 1261/01
Date
Heard: 23 May 2003
Date
Delivered:
In
the case between:
AFRIKA
CINDI APPLICANT
And
KEBARENG
MODESTA CINDI RESPONDENT
JUDGMENT
TLALETSI, AJ
INTRODUCTION
AND RULE NISI
1. This is the return date of the
rule nisi
issued by my
brother Olivier AJ in Chambers on the 7
th
March 2003. The
relief sought by the applicant is more or less to the following
effect.
That the
respondent be ordered and instructed within 14 days:-
1.1.1 to deliver and submit at Messrs. Haarhoffs Inc, being Attorneys
of Kimberley, the Certificate of Registered Grant of Leasehold
no: TL
88/1987 (“Deed of Grant”), in respect of Erf 8512 Galeshewe,
district Kimberley, Northern Cape Province, Measuring 394
(Three Nine
Four) Square meters and also known as 1838 Tayala Street, Galeshewe,
Kimberley;
to sign all
the necessary documents in terms of the Deeds Registries Act, Act
no. 47 of 1937, at Messrs. Haarhoffs Inc., for
the transfer of
ownership of the aforesaid property into the names of the
applicant.
that in the
event of the Deed of Grant being misplaced or destroyed to sign
all necessary documents for an application in terms
of Regulation
68(1) or any other document prescribed in terms of the Deeds
Registries Act, at the aforesaid Messrs. Haarhoffs
Inc, for the
transfer of ownership into the names of the applicant;
1.2 That in the event of the respondent neglecting and or refusing to
comply with the aforesaid Order, that the Sheriff for the district
of
Kimberley, be authorized and ordered:-
To depose to
an affidavit in order to meet the requirements set out in
Regulation 68(1) of the Regulations issued in terms of
the Deeds
Registries Act, for the purpose of obtaining a copy of the Deed of
Grant in respect of the property;
1.2.2 To sign all the necessary documents which were to be signed by
the respondent in respect of the transfer of ownership of the
property into the name of the applicant;
1.3 That the Registrar of Deeds for the Northern Cape Province,
Kimberley, be authorized and directed in the event para 1.1.3 being
applicable:-
1.3.1 To issue a certified copy of the Deed of Grant on the strength
of the aforesaid affidavit by the Sheriff;
To transfer
ownership of the property into the name of the applicant, on the
strength of the documents signed by the Sheriff.
1.4 That the respondent be ordered to pay the costs of this
application.
That the
respondent’s application for the declaration of annexure AC 1
annexed to the applicant’s founding affidavit as well
as the
order for costs be dismissed with costs.
BACKGROUND AND SALE AGREEMENT
2. The parties’ marriage was dissolved on the 6
th
October 1989 in the High Court. Out of the parties’ marriage
relationship four children were born. Custody of two of the four,
who were still minors, was awarded to Mrs Cindi. She was further
awarded the immovable property which is the subject matter of these
proceedings as her sole and exclusive property.
3. During March 2001 Mrs Cindi had accumulated arrears with the Local
Municipality in the amount estimated at R29 000,00 in respect
of
rates and services pertaining to the property. “Annexure AC1” to
the founding affidavit is the Sale Agreement of the parties.
4. The salient terms of the Sale Agreement are to the following
effect:
Mrs Cindi sold
to Mr Cindi the property discribed as 1838 Tayala Street,
Galeshewe, Kimberley;
The purchase
price was fixed at the amount of R30 000,00. As part
payment R8 000,00 was payable on the 13 March 2001
in order to stop
the sale in execution which was scheduled for 15 March 2001. The
balance was to be paid as arranged with the
Municipality;
The transfer
costs were to be at the expence of Mr Cindi;
Mrs Cindi was
to vacate the property on or before the end of March 2001
whereafter Mr Cindi would take occupation of the property;
5. The Sale Agreement has been signed by both parties and bears the
date of 13 March 2001. On the face of it the Sale Agreement
seem to
comply with the provisions of Section 2 of
Alienation of Land Act 68
of 1981
.
6. In addition to
the Sale Agreement Mrs Cindi signed Annexure AC3 being an Affidavit
declaring her Marital Status (“Marital Status
Affidavit”) as well
as Annexure AC4 being an affidavit declaring that her estate is not
under provisional or final sequestration
(”Solvency Affidavit”).
GRIEVANCES AND COUNTERAPPLICATION
7. Mrs Cindi has challenged the validity of the Sale Agreement and
has brought a Counterapplication based on three grievances. These
are:
that she was
unduly influenced into entering into the Sale Agreement;
that she
entered into the Sale Agreement as a result of the fraudulent
misrepresentation on the part of Mr Cindi and those who
assisted
him;
7.3 that she was not conversant in the Afrikaans language in which
the Sale Agreement was recorded and that the contents of the document
were not explained to her. She therefore did not know that she was
signing a Sale Agreement.
WAS MRS CINDI
UNDULY INFLUENCED INTO ENTERING INTO THE SALE AGREEMENT (Point 7.1
above)?
8. In order for Mrs Cindi to succeed in her application to declare
the Sale Agreement null and void on the basis that she was unduly
influenced, she has to prove on a balance of probabilities that:-
8.1 Mr
Cindi exercised an influence over her;
8.2 that this influence weakened her power of resistance such that
her will became pliable; and
Mr Cindi exercised this
influence over her in an unscrupulous manner in order to induce her
to consent to a transaction which
is to her detriment, and which
with her normal free will, would not have concluded. See:
Patel
vs Grobbelaar
1974(1) SA 532(A) at 534 A;
Savvides vs
Savvides and Others
1986(2) SA 325(T) at 329F.
9. Mrs Cindi states that during December 2000 her ex-husband
started to frequent her home and suggested that they should
reconcile.
He promised that he will take care of her and the
children. To use her words, “due to his charm I regained a little
bit of trust
in him”. During January 2001, she continues, the
applicant informed her that her house was about to be auctioned. At
that stage
she was not aware of the pending sale in execution. She
says her ex-husband undertook to pay the outstanding amount. She
agreed.
According to her, she accumulated the arrears with the
Municipality due to some financial hardships, to which he (Mr Cindi)
contributed
by not complying with his maintenance obligations. She
had endeavoured to recover maintenance arrears against him without
success,
despite the fact that he was well-off and a person of
considerable means.
10. Mr Cindi has denied the accusations against him. He states that
the only talk of reconciliation took place later during the
festive
season and was initiated by Mrs Cindi. He turned down the attempt at
reconciliation.
11. Clement
Themba Cindi, the parties’ son states that he became aware of the
sale in execution scheduled for the 15 March 2001
after his mother
showed him, in the presence of his brother and sister, a notice sent
per registered post. She is also said to have
specifically told them
that she was as a result moving to their grandmother at 1729
Montshiwa Street, Galeshewe, and that they should
go and stay with
their father. Clement further intimated that he personally showed
his mother a publication of the intended sale
in the local newspaper,
the Diamond Field Advertiser.
12. The manner in which Mr Cindi is said to have exercised undue
influence over Mrs Cindi is not spelled out by Mrs Cindi in the
papers. Except for the suggestion relating to the reconciliation,
nothing more is said about their relationship. According to Mrs
Cindi, she signed annexure AC1 during or about August 2001 when she
was approached by a certain Mr. Stanley Mlingo. He would have
told
her that Mr Cindi wants her to sign documents at his (Mr Cindi)
attorney’s offices because he had paid the arrears due to
the
Municipality. As she did not know where these offices were, she was
accompanied by Mr. Mlingo. Mr Mlingo denies this version.
He
intimates that he is Mrs Cindi’s cousin and that he accompanied Mrs
Cindi to the attorney’s offices in order for her to sign
the
transfer documents and for him to sign the documents finalizing the
Sale Agreement between himself and Mr Cindi which was discussed
in
her presence. He further states that she knew where these offices
were. Mr Cindi lends support for this fact by stating that
they
attended the divorce settlement negotiations at the same attorney’s
offices when they were Mrs Cindi’s attorneys of record.
13.
Ex facie
the Sale Agreement it was signed at Kimberley
on the 13 March 2001 and not in August 2001 as Mrs Cindi has stated.
The Marital Status
Affidavit as well as the Solvency Affidavit were
signed on the 1 August 2001. This date coincides with the date on
which Mrs Cindi
and Mr Mlingo attended at the applicant’s attorneys
to sign documents.
FRAUDULENT
MISREPRESENTATION ON THE PART OF MR CINDI AND THOSE WHO ASSISTED HIM
(Par 7.2)
14. In order for Mrs Cindi to succeed with this attack, she has
to prove and disclose the contents of the representation; that when
making the representation Mr Cindi knew that it was untrue or had no
genuine belief that it was true; that he intended that the
representation
should be acted upon by her; and that she was in fact
induced to act upon it. See:
Ruto Flour Mills (Pty) Ltd v
Moriates
1957(3) SA 113(T) at 116 A – B and
Service v
Pondart-Diana
1964(3) SA 277(D) at 279 A - C. An allegation is
made by Mrs Cindi that her ex-husband’s conduct is fraudulent.
Allegations of
fraud must be substantiated. See:
Nedperm Bank Ltd
v Verbri Projects CC
1993(3) SA 214(W) at 220 B – C:
“At the outset one has to observe that it is trite that fraud
is a most serious matter and the type of allegation which is not
lightly made and which is not easily eastablished. What is important
is that a factual basis must be laid for an allegation of fraud,
and
it is not sufficient, particularly in an affidavit resisting summary
judgment, merely to put up speculative propositions or to
raise
submissions or to advance arguments on probabilities which might
indicate a fraud.”
15. Mrs Cindi states that she asked a Mr Morton of Mr Cindi’s
attorneys if her signing of the documents will not cause problems.

He assured her that she need not read them as they merely reflect
that she does not owe any more money. She then signed but never
realised that she signed a Contract of Sale. Mr Morton denies that
the Sale Agreement was signed in his presence. He also says
the
witnesses to the contract are not members of his staff.
16. Mr van Vuuren argued that Mrs Cindi could not have sold her
property for R30 000,00 to Mr Cindi if the latter disclosed that
he
already had a buyer, Mr Mlingo, who is prepared to pay R85 000,00
for the home. This according to him suggests that she was
being
cheated or exploited by her ex-husband. According to Mr Mlingo, the
sale of the house to him was discussed with Mrs Cindi.
He says that
she told him that she agreed to the sale to him (Mr Mlingo) as he is
related to her but should it have been somebody
else she would have
refused. Clement said that he was also present during the discussion
relating to the sale of the property to
Mr Mlingo. According to him
it was further agreed that the children will stay with Mr Mlingo and
that Mr Cindi undertook to pay an
amount of R600,00 per month per
child to Mr Mlingo for this purpose.
THE
NON-EXPLANATION OF THE SALE AGREEMENT AND THE AFRIKAANS ISSUE(Point
7.3 above)
17. Mrs Cindi’s version is that Mr Morton gave her a bundle of
documents which were written in Afrikaans. She requested that the
documents be translated into English because she did not understand
Afrikaans. Her request was refused and the contents of these
documents were not explained to her. Amongst these documents, she
continues, was the Sale Agreement. She was adivised by Mr Morton
that all the parties have signed “the document” and she must just
attach her signature. This issue also somewhat overlaps with
the
alleged fraudulent misrepresentation already discussed.
18. Both Mr Cindi
and Mr Mlingo dispute Mrs Cindi’s claim that she cannot read
Afrikaans. Mr Mlingo further denies that any request
was made by Mrs
Cindi for the documents to be translated into English. Mrs Cindi in
her replying affidavit states that her mother
tongue is Setswana and
although she can speak and understand a little Afrikaans, she is more
proficient in English. She says further
that she only attended
school untill standard 3 and cannot read very well.
19. It is a trite principle of our law that when a person is
asked to put his/her signature to a document, he/she cannot fail to
realise
that he/she is called upon to signify, by doing so, his/her
assent to whatever words appear above his/her signature. He/she is
bound
by the terms thereof unless there is proof of misrepresentation
made as to the terms contained in the document by the other party
to
the contract. See:
George v Fairmead
(Pty) Ltd 1958(2) SA
465 (AD) at 472 A – B;
Sun Couriers v Kimberley Diamond
Wholesalers
[2001] 2 ALL SA 646
(NC) at 652 G – H.
20. None of the parties argued that there is a material dispute
of fact which cannot be decided on the papers. Both counsel
submitted
that the dispute can be decided on the papers and that
there was no need to refer the matter for oral evidence. The
Appellate Division
in
Plascon-Evans Paints vs Van Riebeeck Paints
1984(3) SA 623(A) at 634 H – 635 C per Corbett, JA; held:
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits, which have
been admitted by
the respondent, together with the facts alleged by the respondent,
justify such an order. The power of the Court
to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the denial
by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona fide
dispute of fact (see
in this regard
Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949(3) SA 1155 (T) at 1163 – 5;
Da Mata v Otto
NO
1972(3) SA 858 (A) at 882 D – H). In such a case the
respondent has not availed himself of his right to apply for the
deponents
concerned to be called for cross-examination under Rule
6(5)(g) of the Uniform Rules of Court (cf
Petersen v Cuthbert &
Co Ltd
1945 AD 420
at 428;
Room Hire case supra
at 1164) and
the Court is satisfied as to the inherent credibility of the
applicant’s factual averment, it may proceed on the basis
of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled to the final
relief
which he seeks (see eg
Rikhote v East Rand Administration Board
and Another
1983(4) SA 278 (W) at 283 E – H). Moreover, there
may be exceptions to this general rule, as, for example, where the
allegations
or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the
papers…”
21. It is true that there are several aspects in Mrs Cindi’s
affidavits which she could have dealt with more comprehensively.
There are also aspects in the affidavits which raise a measure of
scepticism. However that is not the test. I cannot say with
relative
conviction that Mrs Cindi’s allegations or denials of Mr
Cindi’s averments are so far-fetched or clearly untenable that I am
justified in rejecting them merely on the papers, as pointed out
above. Some of the reasons follow in the next sub-paragraphs and
points to the weaknesses in Mr Cindi’s case:
The parties
are not strangers. They were married to each other and have four
children. There was a Deed of Settlement during
their divorce
which awarded custody of the children to Mrs Cindi. The
controversial contract therefore affect the welfare and
well being
of their children. The Deed of Settlement relating to the divorce
should have been annexed to enable the Court to
determine whether
the Sale Agreement is not in conflict with its terms;
Mr Mlingo has
an interest in the outcome of the case. As a result of his
statements, his involvement in this matter and the references
to
him by both parties, not only should his contract to purchase Mrs
Cindi’s house from Mr Cindi have been annexed to the papers
but
he ought to have been cited as a party;
Clement
alleges that Mrs Cindi received a Notice of Sale of the house send
per registered post. No documentary proof of such
item is
attached. This proof is very easy to obtain;
The greed for
money by Mr Cindi is totally misplaced and inexplicable. For
merely facilitating the sale of the house, he is prepared
to pocket
a profit of R55 000,00. See paragraph 16 above. He is prepared to
exploit the misery of his former wife and his own
children. It is
against the divorce settlement and public policy for Mr Cindi to
cause his children to stay neither with himself
nor Mrs Cindi
(their mother) but with a third party (Mr Mlingo) and pay
maintenance to the latter. This agreement between Mr
Mlingo and Mr
Cindi that Mr Cindi would therefore pay maintenance of R600,00 per
child per month for all the children cannot
be countenanced. This
makes the production of the Sale agreement for R85 000,00 between
these two men and the divorce Deed of
Settlement even more
relevant.
22. I am accordingly of the view that there is a material dispute of
fact in the application and counterapplication which cannot
be
resolved on the papers. It would involve too much costs to dismiss
these applications. I choose to refer them for the hearing
of oral
evidence on an early date to be arranged with the Registrar.
23. The parties and
their attorneys are advised to settle this matter out of Court. The
Registrar is directed to request the Legal
Aid Board (Mrs Cindi is on
legal aid) and the maintenance officer to assist Mrs Cindi to recover
any arrear maintenance (see paragraph
9 above).
ORDER
The following Order
is made:
1. That the
application by Mr Cindi and the counterapplication by Mrs Cindi are
referred for the hearing of oral evidence on a (promoted)
date to be
arranged with the Registrar of this Court;
2. That the evidence
to be led will be that of the parties, all deponents to affidavits as
they stand at this juncture, the witnesses
who signed the disputed
Sale Agreement between the parties and any witness whose evidence the
parties deem necessary;
3. That discovery of documents deemed relevant and necessary for the
determination of these applications shall be made in terms of
the
Rules of Court. Amongst such documents shall be those referred to in
paragraph 21 of this judgment;
4. The applications referred to in paragraph 1 of this Order are
postponed
sine die
pending the determination of their outcome;
5. That the costs of
the applications shall be costs for the decission by the Court which
hears the oral evidence;
6. The Registrar of
this Court is directed to request the Legal Aid Board and the
Maintenance officer to assist Mrs Cindi to recover
any arrear
maintenance reference to which has been made in paragraph 9 of the
judgment.
_____________________________
L P TLALETSI
ACTING JUDGE
ADV J SCHREUDER
FOR APPLICANT : INSTRUCTED BY MESSRS HAARHOFFS
MR D JANSE VAN
VUUREN FOR RESPONDENTS: INSTRUCTED BY MESSRS D JANSE VAN VUUREN
ATTORNEYS