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[2024] ZALMPPHC 190
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Estate Late Phalane and Others v Master of the High Court Polokwane and Others (1971/2018) [2024] ZALMPPHC 190 (25 November 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:1971/2018
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
Signature:
Date:
25 NOVEMBER 2024
In
the matter between:
THE
ESTATE OF THE LATE MAKGANYANE
FIRST PLAINTIFF
ANDRONICA
PHALANE.
MAHLOKO
JEMINA MPHAHLELE N.O
SECOND PLAINTIFF
PHAHLE
PHALANE
THIRD PLAINTIFF
And
MASTER
OF THE HIGH COURT
FIRST DEFENDANT
POLOKWANE
THE
DEEDS OFFICE POLOKWANE
SECOND DEFENDANT
DEPARTMENT
OF CO-OPERATIVE
THIRD DEFENDANT
GOVERNANCE
HUMAN SETTLEMENTS
AND
TRADITIONAL AFFAIRS
OF
LIMPOPO.
CYNTHIA
JULIET PHALANE N.O.
FOURTH DEFENDANT
CYNTHIA
JULIET PHALANE
FIFTH DEFENDANT
JUDGMENT
MONENE
AJ
INTRODUCTION
[1]
In this action proceedings the two plaintiffs, children of two now
deceased parents,
seek a declaratory order to the effect that an
immovable property known as Erf 5[…], Lebowakgomo Zone A,
District Thabamoopo
(“the property”) which was purchased
in the mid-seventies by their vests not in the estate of their
father, Gulbooi
Phalane but in the estate of their mother, Makganyane
Andronica Phalane.
[2]
Opposing the relief sought is Cynthia Juliet Phalane in both her
personal capacity
as a wife to the plaintiffs’ deceased father
to whom she was married after their deceased father’s divorce
from their
now late mother and her capacity as executrix of their
father’s estate. She avers that the property forms part of her
joint
estate with the plaintiffs deceased father and her late
husband, Gulbooi Phalane(“Gulbooi”).
[3]
This action meta morphed from an application which was brought by the
now late Makganyane
Andonica Phalane(“Andronica”) for the
relief as in casu which, which having been opposed by Cynthia Juliet
Phalane
(“Cynthia”), remained undetermined up to
Andronica’s death. After the death of their mother, Andronica,
the plaintiffs
issued summons against Cynthia seeking essentially the
same relief of a declarator that the property is part of their
mother’s
estate as opposed to that of their deceased father as
executed by their stepmother, Cynthia.
[4]
Upon the plaintiffs in casu applying for the two matters, that is,
their late mother’s
application and their action be
consolidated since they sought the same relief, Bresler A J ordered
consolidation with the main
application papers standing as combined
summons and the answering affidavit thereto standing as a plea, a
consequence of which
was for the consolidated matters to appear
before me as a trial.
THE
ISSUE AND PARTIES’ KEY STANCES THEREON
[5]
Crisply, the issue is whether the property constitutes part of the
estate of the plaintiffs’
mother which estate is executed by
the second plaintiff or is part of their deceased father’s
estate, which estate is executed
by the plaintiffs’ stepmother.
[6]
The plaintiffs aver that in support of their case is, in the
first-place, proof that
their father had, when he divorced from their
mother in 1976, forfeited the property to their mother and, in the
second place,
that in 1995 their father had expressly declared that
the property belonged to their mother. In the third place they aver
that
their mother had been the one paying for the bond on the
property while, in the fourth place, they submit that having stayed
in
the property for at least thirty years, their mother had become
lawful owner thereof in terms of
section 1
of the
Prescription Act 68
of 1969
.
[7]
The fourth and fifth defendant contend that the property vests in the
estate of the
late Gulbooi Phalane because it was registered in his
names only and further that the registration thereof was completed
after
the date of his divorce from the late Andronica Phalane in
1976. They submit that the property fell outside that which Gulbooi
forfeited at divorce because the forfeiture happened before the
property was registered in Gulbooi’s names.
[8]
Beyond the pleadings the parties led oral evidence before this court,
with both plaintiffs
testifying in their case and the fifth defendant
giving evidence in opposition. The balance of the defendants,
expectedly, did
not enter the fray.
[9]
I shall, post a brief outline of the background facts
infra
,
return to reflect on and analyze the evidence tendered in the light
of the applicable legal instruments.
BACKGROUND
FACTS IN BRIEF
[10]
The plaintiffs’ parents Gulbooi and Andronica Phalane got
married on 22 December 1969 in
community of property and profit and
loss.
[11]
During the subsistence of their marriage they applied for a grant of
a stand in Lebowakgomo after
which the Department of Bantu
Administration and Development South African Bantu Trust issued a
Deed of Grant. That stand was to
become Erf 5[…], the property
at the heart of the dispute in this matter on which a “bonded”
township property
was already erected. That deed of grant was issued,
according to patriarchal norms of the time, only in Gulbooi, the
man’s
names.
[12]
On 1 October 1976 the couple divorced and Gulbooi left the property
leaving Andronica in the
house raising their two children, to wit,
the plaintiffs in casu. Pursuant to their divorce Gulbooi forfeited
the entire joint
estate.
[13]
On 16 January 1977 the final registration of the property in
Gulbooi’s names was finalized.
[14]
In the meantime Andronica continued to pay the house bond and rates
fees and to stay in the house
raising the two children there. The
municipality house payment receipts were throughout the years,
although paid by Andronica,
issued in the names of Gulbooi because it
was in his names that the property was registered.
[15]
On 29 December 1986 Gulbooi got married to Cynthia Juliet Phalane.
They newlyweds set up house
in Masodi Village, Mokopane which about
130 kilometers from the property in Lebowakgomo.
[16]
In April 1995 Gulbooi and Andronica agreed to formally transfer the
property to Andronica with
both signing transfer papers and Gulbooi
making a transfer declaration. This transfer was, owing to logistical
hiccups and red
tape never finalized.
[17]
On 13 July 2008 Gulbooi passed away and was buried from his home with
Cynthia in Masodi.
[18]
After Gulbooi’s estate was reported and much later on 27
November 2018 Cynthia was appointed
executor of Gulbooi’s
estate. The estate is yet to be finalized.
[19]
Uncertain about the legal status as to ownership of the property,
Andronica launched the main
application for a declarator, as alluded
to supra, on 27 March 2018.
[20]
On 29 November 2019, with her declarator application still pending,
Andronica passed away.
[21]
Aware that the property was listed in the inventory of their late
father’s estate as executed
by Cynthia, the plaintiffs launched
action proceedings which, as alluded to supra, were consolidated with
their late mother’s
application resulting in this matter
appearing as a trial before this court.
THE
ORAL EVIDENCE LED
[22]
Phaahle Petersen Phalane the third plaintiff in this matter testified
that he was born of the
late Matsobane Gulbooi Phalane and the late
Makganyane Andronica Phalane in 1967 two years before the two could
get married. He
went on to tender the following evidence:
22.1 He
knew that his parents had jointly purchased the property prior their
1976 divorce and knew further that
the deed of grant in the property
was only issued after their divorce in 1977.
22.2 He
had stayed on the property with his mother from those mid-seventies
to 2014 when, because he had managed
to purchase his own property, he
had taken his sickly mother to come and stay with him. From 2014 his
mother had rented out the
house to various tenants.
22.3 He
knows Cynthia as his aunt or stepmother whom his father had married
after the divorce.
22.4
Cynthia had never stayed in the Lebowakgomo property.
22.5 He
denied Cynthia’s version that his mother had over the years
stayed at the property because his father
had been benevolent towards
her.
22.6
His father had never stayed at the house at all.
22.7
When his father passed on, he was buried from Cynthia’s home
and his coffin was not taken to nor past
the property.
22.8
His mother’s coffin was taken to go via the property on the day
of her funeral.
22.9
The property was paid for and owned by his mother for more than 30
years.
[23]
Mahlaku Jermina Mphahlele, the second plaintiff in this matter took
to the stand to state that
she was a sibling of Phaahle Phalane and
had upon her mother’s death been appointed executrix of her
mother’s estate.
Apart from confirming and corroboration his
brother’s entire version on how the property had been their
childhood home owned
by her mother over the years she stated further
that:
23.1
Her mother, Andronica, solely paid the bond and rates for their home,
which is the property in Lebowakgomo,
for all the years up to her
death. Her mother had kept receipts proving payment, copies of which
were attached to the pleadings.
23.2
The receipts were passed on to her by her mother and were in her
father’s name only because the property
had never been changed
from his father’s names to those of her mother.
23.3
She was shocked to discover only in 2016 that Cynthia was claiming
the property as part of her late father’s
estate.
23.4 In
recent years Cynthia had kicked out tenants from who she was
collecting rent and replaced them with her
own tenants from whom she
was collecting rent.
[24]
Cynthia Juliet Phalane testified in her defence to confirm that she
indeed had married the plaintiffs’
now deceased father years
after his divorce from Andronica. The key take homes from her
evidence were the following:
24.1
The property was not part of the property forfeited by Guulbooi to
Andronica because it was acquired only
after the divorce. She however
confirms that the process of purchasing the property had commenced
prior the divorce.
24.2
She confirmed that Andronica had occupied the property for more than
thirty years but insisted that she stayed
there with the permission
of the owner, Gulbooi.
24.3
She insisted that Gulbooi had been the one paying for the property
but could not produce proof thereof.
24.4
Whatever Andronica paid for the property was because she was some
kind of tenant or paying occupant.
BRIEF
ANALYSIS OF THE EVIDENCE
[25]
From the evidence led the following are clearly proven without any
dispute:
25.1
Andronica stayed on the property for more than 30 years.
25.2
The property was purchased by both Andronica and Gulbooi during the
subsistence of their marriage and only
registered post the marriage.
25.3
The bond on the property and rates were throughout the years paid
solely by Andronica.
25.4
Gulbooi did try to transfer the property over to Andronica and signed
declarations to that effect.
25.5 In
life Gulbooi never stayed at the property nor did he show any
interest at it.
25.6 At
death Cynthia did not consider the property to be Gulbooi’s
home where it would have been necessary
for customary rites purposes
to have his coffin to touch base with the property.
[26]
With these proven facts I am not persuaded that the defendant has
mounted any case before me
at all. All that I have is a widow who
wants property against a typhoon of facts all militating against her
claim on all the basis
of a declaratory order raised by the
plaintiffs.
[26]
The property having been purchased during the subsistence of the
marriage, at divorce it formed,
in my view, part of the marital
estate’s assets and liabilities. Gulbooi having forfeited the
entire estate at divorce cannot
be said to have retained the property
simply because the logistic of registration was finalized after the
divorce. What further
points that out to be true is the
incontrovertible proof of who paid the bond on the property from the
commencement of the bond
up to the death of Andronica. It would
offend any reasonable person’s sense of justice if by a stroke
of a technicality of
the property having been given Gulbooi’s
names under patriarchal dictates of the mid-seventies, his estate was
to be enriched
by property which he never wanted, never showed an
interest in and did not pay a cent for. The property was never his in
life and
was not regarded as such by anybody even at his burial time.
[27]
Furthermore, the declaration of intent to transfer of the property to
Andronica by Gulbooi pursuant
to an application to formally transfer
the property stands as further uncontroverted evidence before this
court which cannot and
should not be taken lightly. When this point
is assessed in the light of the fact of who paid the bond on the
property, justice
clearly demands that the estate of Andronica be not
unfairly prejudiced at the alter of upholding technicalities over
reality.
[28]
Even if I be wrong on the points of divorce forfeiture and
declaration on intention to transfer
of the property supra, which I
remain of the strong view I am not, I will still find, as I do that
the late Andronica had acquired
ownership of the property per
acquisitive prescription in terms of section 1 of the Prescription
Act 68 of 1969 (“the Act”)
which provides as follows:
“
Subject to the
provisions of this Chapter and of Chapter IV, a person shall by
prescription become the owner of a thing which he
has possessed
openly and as if he were the owner thereof for an uninterrupted
period of thirty years or for a period which, together
with any
periods for which such thing was so possessed by his predecessors in
title, constitutes an uninterrupted period of thirty
years,”
[29]
In
Gianchandi v Registrar of Deeds, Pietermaritzburg and
Others(D3519/2021) [2023] ZAKZDHC 10(14 March 2023)
the court
relied on section 1 of the Act referred to immediately supra in
declaring an applicant the owner of property on
the basis of open and
uninterrupted period of thirty years.
[30]
In casu Andronica was openly occupying the property from 1976 to 2019
when she passed away. That
is a period of 43 years.
[31]
Her occupation of the property was uninterrupted. It was never
challenged by Gulbooi, the one
person who could have. Even the
attempt at challenging the open occupation of Andronica as owner by
Cynthia when she first included
the property in the inventory of
Gulbooi’s estate in 2016 was long after 40 years and as stated
supra, without any merit.
Cynthia’s awareness of Andronica’s
occupation of the property only in 1999 is of no moment in terms of
the Act. Gulbooi
had been aware all the time.
[32]
As correctly referred to by counsel for the plaintiffs in his very
helpful Heads of Argument,
Morgenster 1711(Pty) Ltd v De Koch
No and Others 2012(3) SA 59(WCC)
counsels us that the
critical requirement is encapsulated in the phrase ‘possessed
openly and as if he is the owner thereof
which speaks to physical
possession coupled with animus domini. In that regard the argument by
Cynthia that at some point the house
was intermittently empty is of
no moment because it does not remotely suggest a diminished intention
to possess openly nor interruption.
[33]
I have noted and taken on board submissions by Mr Monyela on behalf
of the Cynthia that her rights
as a spouse of Gulbooi to the joint
estate of their marriage cannot, on the strength of
Le Roux and
Another v Johannes Coetzee and Others
[2022] ZA 46
at para 29(“Le
Roux”)
, that prescription cannot extinguish a right
valid in law. However, as I understand the law in that regard such a
right valid in
law must really be established at law and not be one
speculative as in casu for Cynthia. It must first be proven that the
property
is conclusively part of her estate with Gulbooi before the
Le Roux rationale kicks in. In casu Cynthia failed in the initial
stage,
that is, to prove the existence of such a valid right in law
before it can be determined whether prescription is strong enough to
contest such a right.
[34]
Accordingly in the light of section 1 of the Act the route to a
declarator in favour of Andronica’s
ownership of the property
is comprehensively and unassailably cleared. The plaintiffs must
succeed, and the fifth respondent should,
in the ordinary cause, be
mulcted with costs.
ORDER
[35]
In the result, I make the following order:
35.1
The late Mokganyana Andronica Phalane is declared to have been the
lawful owner of the immovable property
known as ERF 5[…],
Lebowakgomo-A township, District Thabamoopo.
35.2
The late Makganyane Andronica Phalane became entitled to the
ownership of the property named in 35.1 above
and to take transfer
thereof prior to her death.
35.3
The said property falls within Estate Late Mokganyana Andronica
Phalane with estate Number 009161/2019.
35.4
The Deeds Office in Polokwane is directed to register the title in
and to the property as may be necessary
for the administration of the
said estate and to subsequently furnish a title deed to whomever is
flowing from the execution of
the said estate may become entitled
thereto.
35.5
The Sherriff of the High court with the requisite jurisdiction, is
authorized and directed to sign all documents
necessary to give
effect to the orders above which the executrix of the said estate
cannot sign.
35.6
All the fourth and fifth defendants’ claims regarding the
property are dismissed.
35.7
The fifth defendant is ordered to pay the costs of the entire
consolidated proceedings on a party and party
scale including the
costs of counsel on scale B.
MALOSE.S.
MONENE
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
Last on
: 14 August 2024
Judgement
delivered on : 25 November 2024
For
the Plaintiffs
: Adv M
Coetzee
: Instructed by
Elliott Attorneys Inc
: Tel: - 012 021 5067
: Email:
keegan@elliottattorneys.co.za
For
the Fourth and Fifth : Adv. M S Monyela
Defendants:
: Instructed by PMK Tladi and Associates
: Tel: 015 295 2034
: Email:
dikeledi@pmktladi.co.za