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[2024] ZAECMHC 79
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Nkondlwana v Letsaba and Others (Appeal) (CA14/2024) [2024] ZAECMHC 79 (15 October 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE NO. CA 14/2024
In
the matter between:
JANE
NTOMBESITHATHU NKONDLWANA
APPELLANT
and
EPHRAIM
LETSABA
FIRST RESPONDENT
MARATLALI
LETSABA
SECOND RESPONDENT
UNIDENTIFIED
OCCUPANTS OF
THEREMAINDER
OF THE PORTION
OF
ERF 3[...]
THIRD RESPONDENT
UMZIMVUBU
LOCAL MUNICIPALITY
FOURTH RESPONDENT
JUDGMENT ON APPEAL
Rugunanan
J
[1]
The substantial issue for decision in this
appeal is whether the appellant is entitled to an order evicting the
first, second and
third respondents as unlawful occupiers of a
fenced-off portion of fixed residential property known as Erf 3[…],
KwaBhaca
(formerly Mount Frere), of which they are currently in
occupation.
[2]
The
basis for the appellant’s contention that the respondents are
unlawful occupiers stems from her cancellation of an alleged
oral
lease agreement between her deceased husband and the first
respondent, as also the first respondent’s failure to provide
a
deed of alienation as contemplated in section 2(1) of the Alienation
of Land Act
[1]
.
[3]
Beshe
J decided the issue against the appellant (as applicant in the court
a
quo
)
and dismissed with costs her application brought in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of
Land
Act
[2]
for eviction of the
respondents.
[4]
Ancillary to that dismissal was an order in
favour of a counter-application by the first and second respondents,
respectively husband
and wife, who claimed that the property was sold
to them by the deceased. Relying on the doctrine of notice, they were
granted
relief
inter alia
declaring them to be joint owners of a fenced portion of the property
and directing the appellant to do all things necessary to
facilitate
the subdivision and registration of transfer of the occupied portion
to the first and second respondents.
[5]
Save for the first respondent (hereinafter,
the respondent) the remaining parties have no involvement in the
appeal namely;
(a)
the second respondent, albeit that she deposed to a supporting
confirmatory affidavit to that of the respondent,
(b)
the third respondent, who are persons residing on the property at the
instance of the respondent, and
(c)
the
fourth respondent which is the local municipality, having indicated
that it abides the decision of this court.
[6]
The appeal to this court lies with leave
being granted on petition to the Supreme Court of Appeal and is
against the entire
judgment and order of Beshe J. Problematic are the
grounds of appeal. They present difficulty in engaging with the
simplicity of
a reasoned judgment and are nebulous, imprecise in
their formulation, and wanting in eloquence and clarity.
[7]
The appellant’s heads of argument and
oral submissions on her behalf suffered the same deficits and were
rightfully condemned
by opposing counsel in argument.
[8]
In
finding that there was a clear dispute of fact between the parties on
whether or not the respondent and the appellant’s
husband, with
the appellant’s knowledge, previously entered into a sale
agreement for an unsurveyed portion the property,
the court
a
quo
decided the matter on acceptance of the respondent’s version,
absent a referral to oral evidence. The court
a
quo
considered that the dispute raised in the counter-application was
material to the relief sought by the appellant in the main
application.
[3]
Applying the
Plascon-Evans
test
[4]
it decided the matter –
both in the main application and in the counter-application –
in favour of the respondent on
the basis that his version was
inherently credible.
[9]
The finding by the court
a
quo
trails straightforwardly to the
crux of the issue on appeal. Put otherwise, the finding that there
was a sale agreement between
the deceased and the respondent, and of
which the appellant had knowledge, defeats her contention that he is
an unlawful occupier
following her purported cancellation of a lease
agreement.
[10]
On
the facts, the applicability of the doctrine of notice stems from the
appellant’s knowledge. The doctrine relied upon in
the
counter-application was explained by the Supreme Court of Appeal in
Meridian
Bay Restaurant v Mitchell
[5]
as follows:
‘
Under
the doctrine of notice, someone who acquires an asset with notice of
a personal right to it which his predecessor in title
has granted to
another, may be held bound to give effect thereto. Thus a purchaser
who knows that the merx has been sold to another,
may, in spite of
having obtained transfer of delivery, be forced to hand it over to
the prior purchaser. Reverting to my earlier
example: If C had
purchased with knowledge of the prior sale to B, B would be entitled
to claim that the transfer to C be set aside
and that transfer be
effected from A to B, or B may perhaps even claim directly from C.’
[11]
We are at the outset not persuaded that
there is merit in departing from the approach adopted by the court
a
quo
and what follows hereafter
accentuates this sentiment by advancing reasons for the concluding
order on appeal.
[12]
According to the appellant, the
abovementioned lease agreement is alleged to have been entered into
between the respondent and her
husband during 1990 or 1991 when her
husband was the registered owner of the property prior to his death
in 2016. She alleges that
the agreement was terminated by her on
written notice to the respondent on 20 June 2019. Except for
complaining that no rent has
been paid to date, she volunteers no
detail of the amount of rental payable by the respondent. At the time
of terminating the agreement,
the appellant was the registered owner
of the property, having purchased it in 1994 from her husband to ease
his financial distress.
At present, she avers that the municipality
has billed her for unpaid services amounting to R45 878.26 and
attaches a tax
invoice in confirmation of the amount. It may as well
be mentioned that the billing is not to be accounted for in her name
and
is against the AFM Moving Gospel Ministry, a church led by the
respondent.
[13]
The version of the respondent is that in
1991 he requested the deceased to permit him to utilise a portion of
the property on which
there was a makeshift structure that the
respondent intended to utilise for conducting church services. The
respondent avers that
there was never a lease agreement between him
and the deceased. Theirs was an arrangement that emanated from a
friendship that
developed against the backdrop of the respondent, a
qualified electrician, who performed favours for the deceased by
servicing
the machinery of a dry cleaning business owned by the
deceased.
[14]
The deceased also operated a business
hiring out trucks and carting building material.
[15]
During October 1991 the deceased,
accompanied by the appellant, approached the respondent and offered
to sell him the portion of
the property being utilised to conduct
church services. The offer was made because the deceased was
experiencing financial difficulties.
Negotiations culminated in an
agreed purchase price of R40 000 payable by the respondent in
monthly instalments of R2 500.
The deceased introduced the
respondent to an attorney, Mr Bam, who drafted a deed of sale. The
deed was signed by the deceased
and the respondent, the deceased
having made it clear that registration of transfer would only take
place once the property was
subdivided – a process which the
deceased undertook to initiate. Because the deed of sale was prepared
with a manual typewriter
directly in the presence of the parties, and
the difficulty in making copies directly, the respondent avers that
he did not immediately
request a copy but considers that the deceased
did, at a subsequent stage, obtain a copy from the attorney. Despite
the respondent’s
best efforts to obtain a copy, these have come
to naught because Mr Bam has long since passed away and his office
files going back
many decades to 1991 are untraceable by his
successor in practise. The respondent nonetheless believes that the
appellant has the
deceased’s copy of the deed considering that
she is the executrix of his estate.
[16]
As soon as the deed of sale was concluded,
and with effect from 1 November 1991, the respondent
commenced making monthly
payments, as agreed, until the purchase
price was fully paid on 16 March 1993. The respondent’s wife
would accompany him
and the payments were made in the presence of the
appellant. Upon each payment the deceased issued the respondent a
signed receipt
indicating the amount receipted with its purpose noted
down as ‘
part payment for portion
of Erf 3[...]’
, and the balance
due.
[17]
The sequence of receipts are attached to
the respondent’s papers and, in sum, accord with the purchase
price of R40 000.
The appellant’s complaint about the
amount not corresponding with a schedule of payments in the sum of
R43 500 set out
in a letter from the respondent’s
attorneys is unsustainable since the letter is hearsay and does not
constitute evidence
under oath.
[18]
Tellingly, she does not deny that the
payments were made in her presence.
[19]
She avers instead that the signatures
appearing on the receipts differ with the deceased’s signature
in the deed of sale in
respect the sale of the property to her in
1994. Cognisant that it is within the realm of ordinary human
experience that a person’s
signature would not be identical at
all times, and that the appellant does not categorically aver that
the signatures on the receipts
are not those of the deceased, the
court
a quo
could not detect any discernible difference without expert input. Nor
can we.
[20]
Over the course of time, and to the
knowledge of the appellant, the deceased assisted the respondent to
transport building material
onto the property. With the consent of
the deceased and in full view of the appellant, the respondent
modified other existing structures
on the property into a church
building, a nine-roomed house in which he resides together with his
family, and a flatlet comprising
of seven rooms for securing rental
income. All the while the respondent maintained that he prevailed on
the deceased to have the
property subdivided but the deceased pleaded
for patience and moaned that it would be a costly exercise due to his
financial woes.
[21]
In 2017, a year subsequent to the passing
of the deceased in a motor vehicle accident, the respondent was
served with court process
in which the appellant sought an order
interdicting his activities on the property and that the structures
erected thereon be demolished.
It was then that the respondent learnt
of the sale of the property to the appellant in 1994.
[22]
Following a meeting between the parties
during April 2017 at which the appellant’s son Bonginkosi was
present, the latter
deposed to a police affidavit in which he
declared the following (all sic):
‘
On
the 23-04-2017, I … and my mother Mrs Jane N Nkondlwane gave
assurity to Mr E Letsabe & family that there will be
no
demolishing of their structures until the sub-division is done.’
[23]
Objectively considered, the affidavit does
not imply that a deed of sale was concluded. Apart from the assurance
that the property
be subdivided, the affidavit merely confirmed that
there will be no demolishing of structures (notwithstanding it being
common
cause that the respondent did not oppose the interdict
proceedings).
[24]
Against
this factual setting, the case presented by the appellant is posited
on section 2(1) of the Alienation of Land Act
[6]
which, in essence, lays down that no alienation of land shall be
effective unless it is recorded in a deed of alienation signed
by the
parties.
[25]
Relying both on the failure by the
respondent to produce a deed of sale and the purported cancellation
of the lease, the appellant
contends that she is entitled to an
eviction order since the respondent (as with the others) is an
unlawful occupier of the property
of which she is the registered
owner.
[26]
The judgment of the court
a
quo
(including the judgment refusing
leave to appeal) dealt with these issues. In bringing closure to this
matter, and salient for
our purposes, the succinct reasoning of the
learned judge when she refused leave to appeal is quoted:
‘
If
one party says that there was a lease agreement in place and the
other asserts that they bought the piece of land, I do not see
how
that can be viewed in any other way but to see that as a dispute of
fact. I do not wish to repeat the basis on which I dealt
with the
dispute of fact [in] applying the
Plascon-Evans
[7]
rule and
NDPP
v Zuma
[8]
…’
‘…
[And]
in so far as compliance with section 2(1) is concerned, I decided the
matter on the version that was presented by the respondents
in the
main application, namely that the deed of alienation was executed
before an attorney. That attempts as were detailed by
the first
respondent were made to get hold of a copy of the deed of alienation
were in vain. As well as the endeavours to have
the property
subdivided for purposes of transferring portion thereof to the first
and second respondents. I found respondents’
version to be
inherently credible and gave reasons for my finding in this regard.
Granted that the requirement that a contract
should be in writing is
an important one and one that is designed to eliminate disputes about
the said contract. I also listed
a number of factors that weighed in
favour of there having been such a contract of sale of the piece of
land in question. Those
being
inter
alia
: The invoices that first
respondent alleges were issued by the [appellant’s] husband
being in respect of monthly payments
the former made towards the
purchase of the piece of land in question; the apparent non-payment
of rent by the first respondent
for many years; evidence about the
apparent agreement to attend to the subdivision of the Erf in
question; the fact that the first
respondent has, dating back to the
‘90s developed the portion of Erf 3[...] by building a 9 roomed
house and 7 rental flats.
Hence I dismissed the main application and
found in favour of the first and second respondents in respect of
their counter-application.’
[27]
The reasoning employed by the court
a
quo
informs the orders granted against
the appellant in the main application and constitutes the logical and
lawful conclusion
of the court’s rejection of her version.
The orders in the counter-application similarly constitute the
court’s lawful
and logical conclusion of its acceptance of the
respondent’s version. The facts clearly indicate that the
elements of the
doctrine of notice were met and in that regard the
court
a quo
correctly granted an order compelling the appellant to transfer the
occupied portion of the property to the respondent and his
wife.
[28]
We are not persuaded that the learned judge
in the court
a quo
misdirected herself in law, or that she erred in her evaluation of
the material before her. She correctly concluded that it was
appropriate in the circumstances of this case to reject the version
presented by the appellant.
[29]
Interference on appeal is therefore not
warranted.
Order:
The appeal is dismissed
with costs.
S RUGUNANAN
JUDGE OF THE HIGH
COURT
I agree.
M MAKAULA
JUDGE OF THE HIGH
COURT
I
agree.
M GWALA
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For
the Appellant:
L W Qina
of L W Qina Inc., Mthatha, (Ref L W
Qina), Tel: 047-531 1789.
For
the First Respondent:
A Msindo
, instructed by V V Msindo
& Associates Inc., Mthatha (Ref Mr Msindo), Tel: 047-532 2231.
Date
heard:
05 August 2024
Date
delivered: 15 October 2024
[1]
Act 68 of1981.
[2]
Act 19 of 1998.
[3]
Judgment in application for leave to appeal.
[4]
Set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634E-635C.
[5]
[2011] ZASCA 30
para 14.
[6]
Act 68 of 1981.
[7]
Fn 4
supra
.
[8]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.