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2024
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[2024] ZAFSHC 384
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Setsoto Local Municipality v Moeletsane and Others (1227/2023) [2024] ZAFSHC 384 (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
1227/2023
In
the matter between:
SETSOTO
LOCAL MUNICIPALITY
Applicant
and
NKOPANE
MICHAEL MOELETSANE
1
st
Respondent
NTHUSENG
MOHOSHO
2
nd
Respondent
DEPARTMENT
OF HUMAN SETTLEMENTS
(FREE
STATE PROVINCE)
3
rd
Respondent
THE
REGISTRAR OF DEEDS
4
th
Respondent
Coram:
JP DAFFUE J
Heard
:
28 NOVEMBER 2024
Order
granted
:
28 NOVEMBER 2024
Reasons
handed down:
29 NOVEMBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 14H00 on 29 NOVEMBER
2024.
Summary
:
A municipality brought an application for the cancellation of a deed
of transfer in terms whereof it transferred immovable
property to the
first respondent more than two decades ago. The applicant’s
municipal manager deposed to the founding and
replying affidavits.
She relied mostly on inadmissible hearsay evidence and did not
provide any proof that the applicant’s
municipal council had
resolved to institute the proceedings. An application to postpone was
dismissed and the main application
was also dismissed with costs.
REASONS
DAFFUE
J
[1]
On 28 November 2024 the following order was granted:
‘
1.
The application for postponement is dismissed.
2.
The main application is dismissed with costs.
3.
Reasons shall follow in due course and shall be sent electronically
to the parties.’
[2]
These are my reasons. When Adv Z Nyezi started to present
her oral
argument, I pointed out the following aspects and requested her to
make appropriate submissions and/or provide me with
authority:
a.
the applicant’s deponent, Me FN Malatjie,
is the current
municipal manager of the Setsoto Local Municipality, the applicant
herein, who relied for her authority to act based
on her appointment
as municipal manager together with a delegation of powers attached as
annexure FM2 to the replying affidavit;
b.
certain signing powers were granted to her
as municipal manager and
nothing more;
c.
no resolution was filed in terms whereof the
applicant’s
municipal council resolved to launch application proceedings in order
to declare the transfer of the immovable
property to the first
respondent invalid and for the cancellation of deed of transfer
number T19263/2021 in terms whereof the first
respondent is the
registered owner of the property;
d.
the deponent was appointed as municipal manager
in 2022 and although
she submitted that the contents of her affidavit fell within her
personal knowledge, it is clear that she
was relying on hearsay
evidence in respect of about each and every allegation contained in
her affidavits;
e.
the aforesaid deed of transfer does not contain
a single condition in
favour of the applicant or any other entity, either as referred to by
her, or at all;
f.
the
causa
for the transfer is apparent from the deed of
transfer, to wit that the property was sold on 26 March 2001 to the
first respondent
at a purchase price of R540.81;
g.
the so-called Rapid Release Program relied
upon by the deponent
pertaining to conditions imposed upon persons to whom erven are
granted, was not in existence in 2001, it
being a new program which
was developed in Gauteng during 2021 only, as stated by the first
respondent and there was no reason
not to accept his version.
[3]
Upon pointing out the problems to Ms Nyezi, she requested
an
adjournment in order to obtain instructions. After about half an hour
I was called back to the court. It appeared that there
was no
responsible municipal employee in court and that the applicant’s
attorney unsuccessfully tried to contact someone
telephonically. No
responsible person could be located to provide instructions.
Therefore, Ms Nyezi requested a postponement in
order to obtain
instructions which, according to her, might possibly entail
withdrawing the application.
[4]
Mr Geyer on behalf of the first respondent, instructed
by Legal Aid
South Africa, opposed the application vehemently. He pointed out that
the notice of motion was served on the first
respondent in the
beginning of 2023. In terms thereof the applicant intended to
approach the court on 20 April 2023 for relief.
The first
respondent’s answering affidavit was filed timeously on 11 May
2023, but no replying affidavit was forthcoming
from the applicant
for some time. In order to obtain finalisation, the first respondent
even filed a notice in terms of rule 30,
read with rule 30A. This
caused the applicant to apply for condonation for the late filing of
the replying affidavit. This interlocutory
application was eventually
granted on 15 August 2024, applicant to pay the costs thereof. The
problems facing the applicant was
to some extent set out in the
answering affidavit and again in the first respondent’s heads
of argument. Consequently, the
applicant could not be heard to say
that it was taken by surprise.
[5]
Postponements
are not there for the taking. Applications for postponement shall be
made timeously and it is expected of the applicant
for postponement
to explain their predicament fully and satisfactorily. The
Constitutional Court held as follows in
Lekolwane
and Another v Minister of Justice (Lekolwane):
[1]
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect the applicant must ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the court. In exercising
that discretion, this Court takes into
account a number of factors,
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
postponement is full and satisfactory, whether there is prejudice to
any of the parties, whether the
application is opposed and the
broader public interest. All these factors, to the extent
appropriate, together with the prospects
of success on the merits of
the matter, will be weighed by the court to determine whether it is
in the interests of justice to
grant the application.’
[6]
In
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as amici curiae)
[2]
the Constitutional Court referred to
Lekolwane
with approval in the following words:
‘
In
Lekolwane
and Another v Minister of Justice and Constitutional Development
this Court added the following factors to be considered in granting a
postponement: (1) the broader public interest; and (2) the
prospects
of success on the merits. The following factors
could non-exhaustively be added to the above: the reason for the
lateness of the application if not timeously made; the conduct of
counsel; the costs involved in the postponement; the potential
prejudice to other interested parties; the consequences of not
granting a postponement; and the scope of the issues that ultimately
must be decided. In balancing these factors it is of vital importance
to keep in mind that -
'(w)hat is in the
interests of justice will . . . be determined not only by what is in
the interests of the parties themselves,
but also by what, in the
opinion of the Court, is in the public interest. The interests of
justice may require that a litigant
be granted more time, but account
will also be taken of the need to have matters before this Court
finalised without undue
delay.' (footnotes omitted)
[7]
Ms
Nyezi tried to save the day by handing up from the bar a judgment of
the North West Division, Mahikeng which most definitely
did not
support her at all.
[3]
No doubt
the deponent to an affidavit in motion proceedings does not need to
be authorised by the party concerned to depose to
the affidavit.
However, the institution of the proceedings and the prosecution
thereof must be authorised. It would be preposterous
to accept that
any municipal manager may apply to a court, not authorised by a
resolution from the municipal council, to set aside
transactions
lawfully entered into years earlier, this being a classic example, in
seeking the cancellation of a deed of transfer
which was registered
in the Deeds Registry in 2001,
ie
23 years ago.
[8]
When I dismissed the application for
postponement, I invited Ms Nyezi to make any further submissions in
respect of the main application,
but she declined my invitation.
When Mr Geyer started to address me, I informed him that it
was not necessary as I was satisfied that there was absolutely no
merit
in the application. Consequently, the above order was made.
[9]
It is necessary to say something more about the merits
of the
application. I mentioned earlier that about no allegation contained
in the founding and replying affidavits falls within
the personal
knowledge of the deponent. In fact, she could not even say that
documents relating to the transactions between the
applicant and the
first respondent were kept under her control and that she relied on
the contents thereof. Apparently, a fire
broke out at the municipal
offices during 2011 and most of the municipality’s documents
were destroyed in the process. No
application has been made for the
hearsay evidence to be allowed in accordance with the provisions of
s
3
of the
Law of Evidence Amendment Act 45 of 1988
. Therefore, all
allegations by the deponent pertaining to the relationship between
the applicant and the first respondent as well
as the transactions
allegedly concluded between them are inadmissible and disregarded.
[10]
The applicant sought cancellation of the first respondent’s
deed of transfer.
Section 6(1)
of the
Deeds
Registries Act 47 of 1937
is applicable. It reads as follows:
‘
Save as is
otherwise provided in this Act or in any other law no registered deed
of grant, deed of transfer, certificate of title
or other deed
conferring or conveying title to land, or any real right in land
other than a mortgage bond, and no cession of any
registered bond not
made as security, shall be cancelled by a registrar except upon an
order of court.’
[11]
In casu,
no onus was placed on the first respondent to prove
his ownership of the immovable property, to wit erf 6645, situated in
the town
Meqheleng (extension 7), district Ficksburg, Free State
Province, measuring 328 m
2
and held by deed of transfer
T019263/2001, attached as annexure NMM01 to the answering affidavit.
The objective evidence could
not be disregarded.
[12]
Although,
registration on its own is not sufficient to transfer a real right to
immovable property, it is apparent from the deed
of transfer that the
necessary mental element was also present insofar as it is confirmed
therein that the property was sold by
the applicant to the first
respondent at a purchase price of R540.81. No doubt,
ex
facie
the document the applicant as transferor intended to transfer the
property to the first respondent as transferee who accepted the
acquired right whereupon the registration took place. In our law the
abstract theory of transfer applies. The Supreme Court of
Appeal
dealt with the principle as follows:
[4]
‘
In accordance with
the abstract theory the requirements for the passing of ownership are
twofold, namely delivery – which
in the case of immovable
property, is effected by registration of transfer in the Deeds Office
– coupled with a so-called
real agreement or 'saaklike
ooreenkoms'. The essential elements of the real agreement are an
intention on the part of the transferor
to transfer ownership and the
intention of the transferee to become the owner of the property.
Broadly stated, the principles applicable
to agreements in general
also apply to real agreements. Although the abstract theory does not
require a valid underlying contract,
eg sale, ownership will not pass
– despite registration of transfer – if there is a defect
in the real agreement.’
(authorities referred to omitted)
The applicant could not
point out any defects in the real agreement between the transferor
and transferee.
[13]
A municipal
manager is the head of administration of a municipality and the
responsible and accountable officer thereof. Their functions
are set
out in
s 55
of the
Local Government: Municipal Systems Act 32 of
2000
. None of the powers set out in
s 55
divest a municipality’s
municipal council of its executive powers. Nugent JA made this clear
in
Manana
v King Sabata Dalindyebo Municipality.
[5]
I quote:
‘
In my view
s 55(1)
is no more than a statutory means of conferring such power upon
municipal managers to attend to the affairs of the municipality
on
behalf of the municipal council. There is no basis for construing the
section as simultaneously divesting the municipal council
of any of
its executive powers. Indeed, as I have already pointed out, the
Constitution vests all executive authority – which
includes the
authority to appoint staff – in the municipal council and
legislation is not capable of lawfully divesting it
of that power.’
[14]
We would become a chaotic society if newly appointed municipal
managers may
as they wish
inter alia
seek cancellation of
deeds of transfer registered in the name of transferees. The relief
sought in the notice of motion shall be
referred to the municipal
council who will have to debate the issue after having been informed
of all relevant issues, whereupon
it may or may not resolve to take
action for cancellation of the deed of transfer
in casu
.
[15]
I referred to the allegation that conditions were imposed upon the
first respondent.
Again, this is pure hearsay, but most importantly,
the deed of transfer does not contain any conditions whatsoever.
There is also
no proof that the particular property has been
reallocated to another person and even if so, how this was legally
done.
[16]
The deponent failed, obviously because she is totally unaware of the
history
of the matter, to explain why it took the applicant more than
two decades to seek the relief that was now sought. The only
objective
reason for taking action belatedly is the first
respondent’s application in the magistrates’ court in
Ficksburg, claiming
eviction of the people occupying the RDP house
which was built on his property. The eviction application was
instituted as far
back as 2021 under Ficksburg case number 43/2021.
That application was postponed several times. The applicant is
apparent opposing
the relief sought. No doubt this High Court
application was instituted in order to prevent the eviction
application to be granted.
[17]
In conclusion, the first respondent’s point
in limine
pertaining to the absence of a resolution by the applicant’s
municipal council to institute action for the relief sought
is valid
and was upheld. Although unnecessary to consider the other aspects
mentioned above, it is reiterated that the applicant’s
deponent
relied on inadmissible hearsay evidence which carried no weight at
all and had to be ignored. The applicant made out no
case in light of
the objective facts and the first respondent’s version.
JP
DAFFUE J
Appearances
For
appellant:
Adv
Z Nyezi
Instructed
by:
Mhlokonya
Attorneys
Bloemfontein
For
first respondent:
Mr
W Geyer
Instructed
by:
Legal
Aid South Africa
Bloemfontein
[1]
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) para 17.
[2]
[2007] ZACC 14
;
2007 (5) SA 620
para 11.
[3]
Unreported judgment,
Ditsobotla
Local Municipality v Carewell Holdings 5 (Pty) Ltd and Another
(1396/22) [2023] ZANWHC 153 (1 September 2023).
[4]
Legator
McKenna Inc and Another v Shea and Others
2010
(1) SA 35
(SCA) para 22.
[5]
[2011] 3 All SA 140
(SCA) para 17.