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[2024] ZALMPPHC 155
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Mahlangu and Another v Gija Plaza (Pty) Ltd and Others (4622/2020) [2024] ZALMPPHC 155 (23 October 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 4622/2020
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE:
23/10/2024
In
the matter between:
BETTY
MAHLANGU
1
st
APPLICANT
BETTY
MAHLANGU N.O. (As Executrix of Estate
Late
Mbablekwa Lucas Mahlangu)
2
nd
APPLICANT
And
GIJA
PLAZA (PTY) LTD
1
st
RESPONDENT
MALULEKE
KHAZAMOLA FRANS
2
nd
RESPONDENT
MOGALAKWENA
LOCAL MUNICIPALITY
3
rd
RESPONDENT
THE
REGISTRAR OF DEEDS, PRETORIA
4
th
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
The Applicant applied for a declaratory order, declaring the
registration and transfer
of the immovable property described as Erf
A[…], Mahwelereng Township, Mokopane ("the property"),
in the name
of the First Respondent and Second Respondent to be null
and void,
ab initio
, and/or cancelled and that all subsequent
transfers of the above property are also to be declared null and void
and cancelled.
[2]
The background facts are briefly the following. Mbalekwa Lucas
Mahlangu ("the
deceased") became the owner of the property
on or about 25 April 1994. The deceased entered into a written sale
agreement
with the 1
st
Respondent on 22 August 1995 in
terms whereof the property was sold to the 1st Respondent for a
purchase price of R500 000.00.
The property was transferred and
registered in the 1
st
Respondent's name on 2 August 1996.
[3]
The deceased passed away on 14 December 2005. The 2
nd
Applicant was appointed as the executrix of the estate of the
deceased on 11 November 2011. In an e-mail dated 27 July 2013, the
Applicants' Attorneys of record indicated that the 1
st
Respondent was co-owned by the 1
st
Applicant, the deceased
and Mr. McCormick.
[4]
The 3
rd
Respondent obtained judgment against the 1
st
Respondent due to unpaid municipal rates owned on the property. The
2
nd
Respondent purchased the property at a sale in
execution on the 18
th
of July 2014. The property was
transferred from the 1
st
Respondent to the 2
nd
Respondent on 14 May 2015.
[5]
The Applicants' instituted these proceedings only on the 23
rd
of July 2020. Some 9 years after being appointed as Executrix and 15
years after the deceased passed away. Furthermore, about 26
years
after the 1
st
Respondent became the registered owner of
the property. The Applicants on their own version state that they
became aware of the
transfer of the property to the 1
st
Respondent during the year 2015.
[6]
The 1
st
Respondent raised prescription as a point
in
limine.
It was submitted that the Application was served on the
1
st
Respondent on a date that is more than 3 years after
the date on which the Applicants, at the latest, became aware of
their alleged
claim/s. In the premises the Applicants' claim/s have
prescribed in terms of Section 11 of Act 68 of 1969.
[7]
The Applicants' in reply to the point
in limine
of
prescription submitted that the claim is not of a debt but a claim
for restitution of an immovable property. It was further
submitted
that a claim for the return of immovable property was also a
constitutional claim, and therefore does not prescribe.
It was
submitted that the
Prescription Act, 68 of 1969
applies to debt and
not to a claim in respect of immovable property.
[8]
During argument, the Applicant referred this court to
Absa Bank v
Keet (817/13)
[2015] ZASCA 81
(28 May 2015)
where in it was held
that a claim under
rei vindicatio
is not a debt in terms of
Chapter Ill of the
Prescription Act, 68 of 1969
and does not
prescribe after three years.
[9]
It was held as follows in Absa Bank v Keet supra:
"[9] I turn now
to consider the merits of the appeal, namely whether the appellant's
claim for the repossession of its vehicle
is a 'debt', which for the
purposes of the
Prescription Act prescribes
after three years. The
court a quo dismissed the appellant's claim for repossession of the
vehicle on the basis that it was a 'debt'
as contemplated in
s 11
of
the
Prescription Act and
thus prescribed after three years. As I have
already stated above, it reached its conclusion on the basis that
Staegemann was wrongly
decided.
[10] Counsel for the
appellant submitted that a vindicatory claim is clearly a claim based
on ownership of a thing and that it cannot
be described as a claim
for satisfaction of a debt. He argued that this Court should follow
the reasoning in Staegemann, which
he submitted, was correct. The
amicus curiae submitted that if the legislature in its wisdom, had
wanted to stipulate the period
of prescription in respect of a
vindicatory claim, for which neither the 1943
Prescription Act nor
the
present
Prescription Act provided
, it could have done so. But it
chose not to do so, because,
he submitted, it intended the
prescription period in respect of a vindicatory claim to be decided
on a case by case basis. But when
asked by the Court whether that
proposition reflected a correct approach to construing a statute such
as the
Prescription Act, he
was constrained to concede that the
construction he contended for was incorrect. His alternative argument
was that for the sake
of consistency this Court should in construing
the
Prescription Act interpret
the concept 'debt' in the same
manner as it was interpreted in cases such as Barnett; Desai N.O. v
Desai; and Electricity Supply Commission v Stewarts & Lloyds
of
SA (Pty) Ltd.
[11] Staegemann was a
case on all fours with the present one. The applicant claimed the
return of his vehicle from the first respondent,
who had bought it
from a third party, to whom it was fraudulently sold by the third
respondent. The first respondent resisted the
applicant's claim
contending that the claim had prescribed. This plea was rejected
after a thorough review of the authorities.
[12] It was pointed
out by Holmes AJA in Electricity Supply Commission at 344F-H with
reference to the Shorter Oxford English Dictionary
and also to
Leviton & Son v De Klerk's Trustee that a debt is 'that which is
owed or due; anything (as money, goods or services)
which one person
is under obligation to pay or render to another and 'whatever is due
- debitum - from any obligation'. That definition
was thereafter
adopted and extended by this Court in Desai N.0. at 146I-J where a
'debt' was said to have 'a wide and general meaning,
and includes an
obligation to do something or refrain from doing something'. The
notion that a vindicatory claim constituted a
debt subject to
extinctive
prescription has its origins in the following
statement in Evins (at 1141F-G):
'The word "debt"
in the
Prescription Act must
be given a wide and general meaning
denoting not only a debt sounding in money which is due, but also,
for example, a debt for
the vindication of property.'
[13] It is by no means
clear what King J intended by this dictum. Evins dealt with a motor
vehicle accident claim and the issue
was whether a claim for personal
injuries and a claim for damages for loss of support arising from the
death of the plaintiff's
husband were separate claims or a single
debt for the purposes of prescription. No issue of a vindicatory
claim arose for consideration.
As the judge was contrasting a claim
sounding in money with a claim for delivery of property, he may have
meant nothing more than
that both types of claims could give rise to
a debt. His statement was not approved when the case came before this
Court in Evins
and there is a passage in the judgment of Corbett JA
(at 842E-F) that seems inconsistent with it. There, in dealing with
what constitutes
a debt for purposes of prescription, Corbett JA
said:
'... it is clear that
the "debt" is necessarily the correlative of a right of
action vested in the creditor, which likewise
becomes extinguished
simultaneously with the debt. (Cf Erasmus v Grunow en 'n Ander
1978
(4) SA 233
(0) at 245E.)'
[14]
In Erasmus v Grunow, Van Heerden J had said that 'a right of action'
and 'a debt' were two poles
of an obligation' ("n Vorderingsreg
en 'n skuld is egter twee pole van 'n verbintenis'.) In other words,
they are the opposite
poles of a single obligation. An obligation for
these purposes could arise from contract, delict or ex lege as Van
Heerden AJA
made clear in Oertel, where he said that a debt is an
obligation to do something, either by payment or the delivery of
goods or
services. It is one pole of an obligation, which in this
context encompasses a right to receive and a corresponding duty to
give.
Significantly absent from this exposition is any suggestion
that a claim arising other than from an obligation of this character,
such as a claim to enforce a real right, is a debt.
[15] In Barnett this
Court was confronted with a special plea of prescription raised by
certain persons who had occupied and built
structures on State land.
The occupiers' argument in support of the plea relied on
s 12(3)
of
the
Prescription Act. They
contended that the prescription period of
three years commenced to run, at the latest, when the government
acquired knowledge of
the 'identity of the debtor and of the facts
upon which the debt arose'; the 'debt' being the vindicatory relief
which the government
sought to enforce.
[16] Brand JA writing
for this Court stated at para 19 of the judgment with reference to
Evins that he was prepared to accept that
the vindicatory relief
which the government sought to enforce constituted a 'debt' as
contemplated by the
Prescription Act. He
said that he could see no
reason why it would not include a claim for the enforcement of an
owner's right to property. But then
the prescription point was
dismissed on the basis of application of the concept of a continuous
wrong.
[17] Grobler concerned
the question whether a claim to recover the proceeds of certain
insurance policies ceded to the appellant's
late husband, had
prescribed. The high court held on the basis of the application of
the pledge theory that what the applicant
there sought to enforce was
a vindicatory claim that became prescribed after 30 years. This Court
rejected that finding. At para
19 this Court stated:
'... the prescription
period of 30 years in
s 1
of the
Prescription Act relates
to
acquisitive prescription. For extinctive prescription, the period
can, in the present context, only be three years provided
for in
s
11(d)
of the Act'.
It referred to Evins
and Barnett in support of that proposition. In the end nothing turned
on the prescription point and the case
was decided on other grounds.
[18] In Leketi the
appellant alleged that his grandfather had fraudulently caused
certain property to be registered in his own name
instead of in the
name of the appellant's late father. His claim was directed at
setting aside the registration in the name of
his grandfather and
then procuring transfer of the property from his late father's
estate. The claim was not a vindicatory claim
and accordingly the
reference to Barnett was obiter and irrelevant to the decision, which
turned on the appellant's knowledge of
the allegedly fraudulent
transfer.
[19] In Schmidt Bou
Ontwikkelings the question whether a vindicatory claim gives rise to
a 'debt' which prescribed after three years,
was raised, but not
decided by this Court. But the reasoning in Staegemann in which the
correctness of Barnett was doubted, was
found attractive and quite
convincing and an inclination was expressed to revisit the
correctness of the decisions in Barnett;
Grobler; and Leketi to the
effect that such a claim is extinguished by prescription after three
years.
[20] In my view, there
is merit in the argument that a vindicatory claim, because it is a
claim based on ownership of a thing, cannot
be described as a debt as
envisaged by the
Prescription Act. The
high court in Staegemann (para
16) was correct to say that the solution to the problem of the
prescription is to be found in the
basic distinction in our law
between a real right (jus in re) and a personal right (jus in
personam). Real rights are primarily
concerned with the relationship
between a person and a thing and personal rights are concerned with a
relationship between two
persons. The person who is entitled to a
real right over a thing can, by way of vindicatory action, claim that
thing from any individual
who interferes with his right. Such a right
is the right of ownership. If, however, the right is not an absolute,
but a relative
right to a thing, so that it can only be enforced
against a determined individual or a class of individuals, then it is
a personal
right.
[21] That distinction
between real rights and personal rights has consistently been
recognised in our case law and was recently
explained by this Court
in National Stadium South Africa (Pty) Ltd v Firstrand Bank Ltd para
31:
'The first concerns
the distinction between real and personal rights. Real rights have as
their object a thing (Latin: res; Afrikaans:
saak). Personal rights
have as their object performance by another, and the duty to perform
may (for present purposes) arise from
a contract. Personal rights may
give rise to real rights; for instance, a personal obligation to
grant someone a servitude matures
into a real right on registration.
Real rights give rise to competencies: ownership of land entitles the
owner to use the land
or to give others rights in respect thereof.
Others may say that ownership consists of a bundle of rights,
including the right
to use the land, but it does not really matter
who is right on this point.'
[22] Wessels points
out at 3-4 that:
'In a real right we
have the owner in direct relation to the thing he claims, but in a
personal right the claimant must claim his
right to a thing or act
indirectly through an intermediate person called a debtor. The person
who claims from his debtor money
lent has no absolute right to
particular coins, but he has the right of compelling his debtor to
pay him what is due to him by
virtue of the loan. The debtor is under
a legal obligation to pay his creditor what is due to the latter.'
[23] The obligation
which the law imposes on a debtor does not create a real right (jus
in rem), but gives rise to a personal right
(jus in personam). In
other words, an obligation does not consist in causing something to
become the creditor's property, but in
the fact that the debtor may
be compelled to give the creditor something or to do something for
the creditor or to make good something
in favour of the creditor.
[24] The manner in
which the
Prescription Act is
structured, reflects this distinction -
acquisitive prescription of real rights is dealt with in Chapters 1
and 2 and the extinctive
prescription of obligations is dealt with in
Chapter 3. The reason for arranging the
Prescription Act in
this
manner was explained by Professor J C de Wet, the author and
draftsman of the present
Prescription Act, in
a full memorandum he
submitted to the Legislature. The memorandum was published in
February 1979 in a work called Opuscula Miscellanea.
Professor de Wet
had this to say at p 77 para 5:
'Whether prescription
is concerned with a single legal concept with two branches, viz.
acquisitive and extinctive prescription,
or whether there are in fact
two distinct legal concepts is an old controversy. It appears to me
that one is actually concerned
with two distinct legal concepts and
even the expressions, "acquisitive" and "extinctive"
prescription are
somewhat unfortunate and misleading. It is true that
the passage of time plays a role in both legal concepts and that
certain circumstances,
connected to the person against whom
"prescription runs", apply to both legal concepts, but
nonetheless the two legal
concepts rest on different foundations. In
the case of acquisitive prescription one is concerned with real
rights, which do not
concern simply the acquisition of a right by the
one and the loss of a right by the other, but also outward
appearances that may
affect third parties in their relationships with
the one or the other. The rationale for the acquisition of real
rights by prescription
is the perpetuation of a factual situation
that has existed for a long time, and upon which third parties may
rely in their relationships
with the ostensible rightful owner. In
the case of extinctive prescription one is more specifically
concerned with the relationship
between creditor and debtor and
prescription serves in the first instance to protect the debtor
against claims that perhaps never
came into existence or had already
been extinguished. The obligation is by its nature and substance a
temporary relationship that
is destined to terminate through
performance and moreover a relationship between creditor and debtor
in which third parties are
only indirectly involved. A real right, by
contrast, is a relationship of a durable nature, that can be
maintained against anyone
and everyone, and which can impede commerce
if outsiders cannot with confidence rely on the appearance thereof'
(My own translation)
[25] In the
circumstances, the view that the vindicatory action is a 'debt' as
contemplated by the
Prescription Act which
prescribes after three
years is, in my opinion, contrary to the scheme of the Act. It would,
if upheld, undermine the significance
of the distinction which the
Prescription Act draws
between extinctive prescription, on the one
hand and acquisitive prescription on the other. In the case of
acquisitive prescription
one has to do with real rights. In the case
of extinctive prescription one has to do with the relationship
between a creditor and
a debtor. The effect of extinctive
prescription is that a right of action vested in the creditor, which
is a corollary of a 'debt',
becomes extinguished simultaneously with
that debt. In other words, what the creditor loses as a result of
operation of extinctive
prescription is his right of action against
the debtor, which is a personal right. The creditor does not lose a
right to a thing.
To equate the vindicatory action with a 'debt' has
an unintended consequence in that by way of extinctive prescription
the debtor
acquires ownership of a creditor's properly after three
years instead of 30 years that is provided for in
s 1
of the
Prescription Act. This
is an absurdity and not a sensible
interpretation of the
Prescription Act.
[26] I am aware that
we are differing from a view that has been expressed in three
judgments of this court, albeit in my view none
of those decisions
was dependent upon the correctness of that view for the ultimate
result. However, to the extent that this view
could be seen as the
ratio decidendi of those decisions, I would hold that it was
incorrect. I am aware of the restricted basis
upon which this Court
departs from its earlier decisions, but am of the view that this is
one of those rare cases in which it is
appropriate to do so. First,
the decision (Barnett) is of reasonably recent origin so it cannot be
said that people have organised
their affairs on the basis that it
was correct. Second, the author of the decision has indicated that it
should be reviewed by
this Court. Third, the perpetuation of that
view gives rise to absurdity in the construction of an important
statute and would
cause uncertainty in a multitude of relationships.
[27] In the
circumstances, the court a quo erred in upholding the special plea on
the basis of its finding that a claim for delivery
of a tractor was a
'debt' that becomes prescribed after three years by virtue of the
provisions of
s 10
of the
Prescription Act."
[10
]
In the present matter, the Applicants submitted that no lawful
passing of ownership of Erf 2[…]
Mahwelereng A, took place
from the 1
st
and 2
nd
Applicant's joint estate
to the 1
st
Respondent on 2 August 1996 through Deed of
Grant No TG823/96. It was submitted that the registration of the
property in the name
of the 1
st
Respondent was unlawful
and null and void,
ab initio
, and must be cancelled.
[11]
It was submitted, that it therefore follows that the transfer and
registration of the property
to the 2
nd
Respondent was
also null and void as the Sheriff was acting on an unlawful Judgment
and Writ of Execution.
[12]
The Applicants' however lose sight of the fact that the 2nd Applicant
was already appointed as
Executor of the deceased estate on 28
November 2011. They only instructed their attorneys to investigate
the status of the property
on 10 November 2015 and only instituted
proceedings on 23 July 2020. The Applicants knew as early as 23
January 2014 that the 1
st
Respondent owned the property.
[13]
The Applicants claim is directed at setting aside the registration of
the property in the name
of the 1
st
Respondent and the 2
nd
Respondent and then procuring transfer of the property back in the
estate of the deceased, and is therefore not a vindicatory claim.
[14]
In addition, in order for the Applicants to succeed with a
vindicatory claim, they had to allege
and prove ownership of the
property and that the Respondents were in possession of the property
when they instituted action. (See
Goudini Chrome (Pty) Ltd v MCC
Contracts (Pty) Ltd
[1992] ZASCA 208
;
[1993] 1 All SA 259
(A),
1993 (1) SA 77
(A) p82
and Concor Construction (Cape) (Pty) Ltd v Santambank Ltd
[1993] 2
All SA 496
(A)
)
[15]
It is common cause that the Applicants are not the owners of the
property, but the 1
st
Respondent was, and now the 2
nd
Respondent. The Applicants can therefore, in my view, also on this
ground, not rely on a vindicatory claim.
[16]
The Applicants also lose sight of the fact that when the property was
sold to the 1
st
Respondent by the deceased, the deceased
declared in the sale agreement at clause 7.3 thereof as follows:-
"7.3 The Seller
warrants in favour of PURCHASER COMPANY in respect of the SALE
PROPERTY that (save as expressly agreed to in
writing by PURCHASER
COMPANY):
7.3.1 the
SELLER is the registered owner of the SALE PROPERTY;
7.3.2 no
person has or, on REGISTRATION, will have any rights of acquisition
(including options, rights of pre-emption
or rights of first refusal)
in respect of the SALE PROPERTY nor any right to encumber the SALE
PROPERTY;"
[17]
I find it highly improbable that the Applicants, and especially the
2
nd
Applicant in her capacity as executrix of the estate
of the deceased, did not know of the fact that the deceased was not
the owner
of the property from at least around end of the year 2011,
beginning of the year 2012.
[18]
Accordingly, this court therefore makes the following order:-
1.
The point
in limine
of prescription is upheld.
2.
The Application is dismissed with costs.
M.
NAUDЀ-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
24
JULY 2024
JUDGMENT
DELIVERED ON:
23
OCTOBER 2024
For
the Applicants:
Adv.
R. Baloyi
Instructed
by:
Kgariya
Inc.
C/O
Everton Dankuru Attorneys,
Polokwane
admin@edalaw.co.za
info@bhlattorneys.co.za
For
the 1
st
Respondent:
Adv.
Minnaar
Instructed
by:
Slade
Shezi Attorneys
C/O
Pratt Luyt & De Lange,
Polokwane
dolla@prattluyt.co.za
For
the 2nd Respondent:
Adv.
A. Basson
Instructed
by:
Borman
Snyman & Barnard Inc.
C/O
Niland Pretorius Inc.
Polokwane
martie@nilandpretorius.co.za