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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 5378/2024
In the matter between:
MPOIKANA ALFRED MAIFALA
1ST APPLICANT
MILLICENT TSAKANI MAIFALA
2ND APPLICANT
-and-
PETER RAIPHEHLI RAMASHAPA
1ST RESPONDENT
MMAKAMA SARA RAMASHAPA
2ND RESPONDENT
MMONE PHILLIP LEDWABA 3RD RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE 10 APRIL 2025 SIGNATURE ………...………………
REGISTRAR OF DEEDS , LIMPOPO 4TH RESPONDENT
Delivered : 10 April 2025
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 10 April 2025 at
10:00 am .
Date heard : 4 April 2025
Coram : Bresler AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1] The First and Second Applicant (the ‘Applicants’) apply for the sale agreement
concluded between the First and Second Respondents as sellers , and the Third
Respondent as purchaser , in respect of Erf 7[…] Seshego -E, Limpopo Province
(the ‘Property’) to be declared null and void ab initio , and for the transfer of the
Property to the Third Respondent, pursuant to the sale agreement to be set aside.
[2] The application is opposed by the First, Second and Third Respondents.
Factual synopsis:
[3] The Applicants ’ case is the following:
3.1 On or about the 5th of February 2019 a Sale agreement was concluded
between the First and Second Respondents as sellers and the Applicants
as purchasers . The full purchase price was consequently paid upon
signature of the Sale agreement.
3.2 In terms of the said Sale agreement the Property was sold to the
Applicants for a purchase price of R80,000 (eigh ty thousand rand) . The
Applicant s were entitled to occupy the property pending transfer thereof.
3.3 The Applicants commenced with the construction of a house on the
Property and also furnished the house .
3.4 On or about the 22nd of January 2024 , the First Applicant was informed
that unknown individuals were in the process of demolishing their house.
Upon arrival at the Property , he did not find anybody present but did
observe the structure being partially demolished .
3.5 An urgent application was launched in the Seshego Magistrates Court
restraining the Third Respondent inter alia from demolishing the house or
building on or developing the Property pending finalisation of th e current
proceedings .
3.6 During argument, this Cou rt was informed that the Magistrate’s Court’s
order was extended by agreement pending the outcome of the current
application.
3.7 The Applicants submit that the Sale agreement concluded between the
Applicants and the First and Second R espondents was concluded first,
which renders the Sale agreement between the First and Second
Respondents as sellers and the Third Respondent as purchaser void.
[4] The First and Second R espondents version is the following:
4.1 They admit that a Sale agreement was concluded between themselves
and the Applicants. They furthermore admit that the purchase price in the
amount of R80,000 .00 was paid. Subsequent hereto it transpired that the
Applicants were unable to pay the transfer costs.
4.2 The First and Second Respondent consequently agreed that the transfer
costs be paid out of the purchase price that was retained on trust by their
attorney.
4.3 After payment of the transfer costs and approximately in March 2019 , J.E.
Risiva Attorneys, who were appoint ed as the conveyancers, informed the
parties that the clearance figures need to be paid by the Applicants. The
Applicants failed to pay the clearance figures.
4.4 Hereafter the Applicants failed to take any further steps to have the
property registered in their names.
4.5 As the First and Second R espondents found the property vacant and
dilapidated, and were unable to reach the Applicants telephonically, they
mandated estate agents to market the property.
4.6 According to the First and Second R espon dents the Applicants then
repeatedly failed to pay the Municipal consumption account resulting in a
considerable arrear amount being owed to the Municipality. T hey also
submit that the Applicants abandoned the Property during or about 2020.
4.7 The First and Second R espondents endeavoured to settle the matter with
the Applicants but was unsuccessful. An amount of R60,000 was re paid to
the Applicants during or about 2024.
4.8 The First and Second R espondent therefore denies that the Applicants are
entitled to the relief.
[5] The Third Respondent’s version is the following:
5.1 The Third Respondent pleads that the Applicants ’ claim has prescribed.
According to the Third Respondent, the Applicants ’ claim is a personal
right that accrued upon conclusion of the Agreement. They did not
enforce the personal right, resulting in the personal right to claim transfer,
prescribing.
5.2 The Third Respondent a lso submits that the A pplicants fail ed to disclose
all material facts to the court , alternatively failed to act in good faith. The
issues pertaining to the non -payment of transfer costs , the arrear
municipal account and the settlement amount paid to the A pplicants were
not disclosed in their Founding affidavit.
5.3 It is furthermore the case of the Third Respondent that the Applicants
should have been aware that a material dispute of fact exists and that
action proceedings should have been issued. In this regard, reference to
the opposed Magistrate’s Court proceedings is relevant as the factual
dispute was already known to all the parties at that stage .
5.4 It is not disputed by the Third Respondent that he entered into a sale
agreement with the First and Second Respondents. The Third
Respondent persists in its view that his Sale agreement is valid and
enforceable, resulting in the subsequent transfer being valid.
[6] It is clearly common cause between the parties that transfer was affected in the
name of the Third Respondent pursuant to a sale agreement that superseded the
sale agreement on which the Applicants rely .
[7] In reply to the First and Second R espondents ’ answering affidavit the Applicants
state that they were not responsib le for payment of the rates and taxes associated
with the transfer. The demand was therefore not met. The Applicants persist in
their claim that the First and Second R espondents have no right to sell the
property to other people after selling it to the Applicants and prior to cancellation or
termination of the sale agreement. They also reiterate that they did not accept
R60,000 .00 (sixty thousand rand) as full and final settlement of the matter.
[8] In reply to the Third Respondents answering affidavit, the issue of prescription is
denied, and the Applicants persist with the version that the second Sale
agreement should be set aside in favour of first Sale agreement.
[9] When the proceedings in court commenced, this Court requested the parties to
address it specifically on two issues:
9.1 Prescription; and
9.2 Factual dispute
Issues that require determination:
[10] In this Court’s view, of critical importance is to determine if the claim of the
Applicants has prescribed. Prescription will bring about an end to the current
proceedings rendering a determination of the remaining issues unnecessary.
[11] Insofar as it may have an impact on the proceedings, this Court is furthermore
called upon to determine if there was a foreseeable factual dispute, rendering the
application proceedings unsuitable to resolve the said dispute.
The Applicable Legal Princip les:
[12] The law pertaining to prescription of a debt, was extensively dealt with by
numerous courts in the past. It has now become established law that a claim to
transfer immovable property is a personal right subject to the three -year time limit
contemplated in the Prescription Act , Act 68 of 1969 .
[13] Section 11(d) of the Prescription Act provides:
‘11 Period of prescription
…
(d) save where an Act of Parliament provides otherwise, three years in
respect of any other debt .
[14] The relevance of prescription has been said to be:
‘The Prescription Act deals with prescription in general. In terms of s 10(a)
debt is extinguished by prescription after the lapse of a period which applied
in respect of the prescription of the debt. A claim is thus after a period of
time no longer actionable and justiciable. It is a deadline which, if not met,
could deny a plaintiff access to a court in respect of a specific claim.’1
[15] In Radebe v Government of the Republic of South Africa and Other s2,
Booysen J stated:
‘The effect of the expropriation, whether valid or not, is that the applicant has
been deprived of ownership of the land. He was thus left with no more than
a personal right (if he has any right at all) to claim redelivery of the land by
registration of title in his name. Such a claim constitutes a debt within the
meaning of s 10 and 11 of the Prescription Act 68 of 1969. While “debt” is
not defined in the Act, it has to be given a wide and general meaning.
(HMBMP Properties (Pty)Ltd v King 1981 (1) SA 906 (N) at 909A -B). There
1 Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC)
2 1995 (3) SA 787 (N) at 804 A – C
is no reason why a claim for vindication of property, movable or immovable
should not be included. (Joubert (ed) The Law of South Africa vol 21 para
96.)
[16] The case of Desai NO v Desai a nd Others3 specifically dealt with the obligation
of a party to procure registration of transfer of interests in an immovable property.
The following was stated:
‘For the reasons which follow I am of the opinion that the appellant's 'debt', ie
the obligation to p rocure registration of transfer in terms of clause 13(d), was
indeed extinguished by prescription. Seeing that this finding is decisive of the
case, it is unnecessary to consider the other aspects raised in argument,
including the submissions relating to t he true nature of the agreement and
the applicability of s 1(1) of Act 71 of 1969.
Section 10(1) of the Prescription Act 68 of 1969 ('the Act') lays down that a
'debt' shall be extinguished after the lapse of the relevant prescriptive period,
which in the instant case was three years (see s 11(d)). The term 'debt' is not
defined in the Act, but in the context of s 10(1) it has a wide and general
meaning, and includes an obligation to do something or refrain from doing
something. (See Electricity Supply Commission v Stewarts and Lloyds of SA
(Pty) Ltd 1981 (3) SA 340 (A) at 344F -G; Oertel en Andere NNO v Direkteur
van Plaaslike Bestuur en Andere J 1983 (1) SA 354 (A) at 370B.) It follows
that the undertaking in clause 13(d) to procure registration of transfer was a
'debt' as envisaged in s 10(1).
...
Section 12(1) of the Act provides that 'prescription shall c ommence to run as
soon as the debt is due'. This Court held in Deloitte Haskins &
Sells C Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty)
Ltd 1991 (1) SA 525 (A) at 532H that for p rescription to commence running
3 1996 (1) SA 141 (A) at 146
'there has to be a debt immediately claimable by the creditor or,
stated in another way, that there has to be a debt in respect of which
the debtor is under an obligation to perform immediately'.
(See also Benson and Another v Walters and Others 1984 (1) SA 73 (A) at
82B-E.)
[17] And further:4
‘I have difficulty in understanding how the appellant's contractual obligation
could suddenly have revived, by way of implied term or otherwise, many
years after the alleged performance thereof. My main problem with the
respondents' argument, however, is their interpretation of clause 13(d), and
more particularly their construction of the nature of the debt owed in terms
thereof. Clause 13(d) may not have been very happily worded, but it is
reasonably clear in my judgment that it placed an obligation on the appellant
to 'procure registration of transfer' of certain immovable properties. The
obligation wa s to pass transfer and not merely to sign and deliver
documents. Although clause 13(d) provided that registration of transfer had
to be effected at the respondents' expense by their conveyancers, the
appellant was the only person who could authorise the pa ssing of transfer. ’
[18] Premised on the aforesaid, it is clear that the obligation to pass transfer existed at
the time when the purchase price was duly paid by the Applicants and the First
and Second Respondent therefore had a duty to pass transfer to the Applicants in
return . During argument, Counsel for the Applicants submitted that the obligation
to transfer only existed when all the terms of the agreement has been met. T his
approach is evidently incorrect and is rejected in line with the quoted authorities.
4 At 148
[19] Prescription started running from th e point where transfer was due . Prescription
was not interrupted since approximately August 2020, when the First Respondent
contacted the First Applicant and asked him to expedite the transfer. It appears in
any event that this interaction is in dispute. The Applicants did not present any
evidence to court to justify a conclusion that prescription was effectively
interrupted to date.
[20] Be that as it may, if prescription began running anew from this date, it has not yet
been interrupted as no action has been instituted, and a period of more than 3
(three) years has prescribed. By the time the communications took place during
or about 2024, and when the amount of R60,000.00 was repaid, the claim had
already prescribed and could therefore not be revived.
[21] The point in lim ine regarding prescription therefore stands to be upheld. As the
issue of prescription has a final and definitive consequence for the application, this
Court does not see the need to deal with any other aspect.
[22] I find it appropriate however to remark on the existence of a foreseeable factual
dispute.
[23] As mentioned herein before, the Applicants knew that the interactions and
communications pertaining to the transfer of the property was in dispute. This is
just one of numerous disputes raised in the papers before court. The Applicants
knew, alternatively, could have reasonably foreseen these disputes considering
the pending proceedings in the Magistrate’s Court. For reasons unknown to this
Court, the Applicants elected to launch application proceedings.
[24] Counsel for the Applicants argued that the said disputes does not constitute
‘factual disputes’ but rather a determination of the legal position. This Court does
not agree. It is trite law tha t, in interpreting the terms of an agreement, the Court
must consider the context within which the agreement was concluded. From the
facts before Court, it is clear that the Applicants and the First and Second
Respondents were not ad idem in their underst anding of their commitments in
terms of the agreement. Oral testimony is thus necessary to determine these
disputes. This was within the contemplation of the Applicants.
[25] Rule 6(5) of the Uniform Rules of Court provides:
‘Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to
ensuring a just and expeditious decision. In particular, but without affecting
the generality of the aforegoing, it may direct that or al evidence be heard on
specified issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for such
deponent or any other person to be subpoenaed to appear and be examined
and cross -exam ined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition of issues, or otherwise.’
[26] In National Director of Public Prosecutions v Zuma5 the Supreme Court of
Appeal stated:
‘[26] Motion proceedings, unless concerned with interim relief, are all about
the resolution of legal issues based on common cause facts. Unless the
circumstances are special, they cannot be used to resolve factual i ssues
because they are not designed to determine probabilities.’
[27] In the well -known decision of Plascon -Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd6 it was stated:
‘[The] affidavits reveal certain disputes of fact. The appellant nevertheless
sought a final interdict together with ancillary relief, on the papers and
without resort to oral evidence. In such a case the general rule was stated
5 2009 (2) SA 277 (SCA) at [26]
6 1984 (3) SA 623 (A) at 634E – 635D
by Van Wyk J (with whom D e Villiers JP and Rosenow J concurred) in
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA
234 (C) at 235E – G, to be:
“ ... where there is a dispute as to the facts a final interdict should only
be granted in notice of motion proceedings if the fact in the applicant’s
affidavits justify such an order ... Where it is clear that facts, though not
formally admitted, cannot be denied, they must be regarded as
admitted.”
[28] A failure to heed this basic proposition can (and generally should) result in the
application being refused when the disputes of fact on material issues were
foreseeable.7
[29] The foreseeable dispute of fact relates to material issues. The discussion
pursuant to the conclusion of the agreement, the occupation of the property
contrary to the agreement, the improvements erected on the property, the
responsibilities of the parties pertaining to municipal consumption charges , the
alleged breach of the agreement and the co nduct of Applicants and the First and
Second Respondents since the conclusion of the first Sale agreement, are all
essentially in dispute to the extent that this Court is not in a position to grant final
relief.
[30] On this basis also, the Application stands to be dismissed.
Costs:
[31] There is no reason why the cost order should not follow the outcome of the
proceedings. Having regard to the complexity of the matter, the nature of the
7 BR Southwood, Essential Judicial Reasoning, Lexis Nexis on p 23
issues raised and the importance of the matter to the parties, this Court is satisfied
that costs to counsel on Scale B is warranted.
Order:
[32] In the result the following order is made:
32.1 The application is dismissed.
32.2 The Applicants, jointly and severally, are ordered to pay the costs of
the First, Second and Third Respondents including costs to counsel
on Scale B.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES :
FOR THE APPLICANT S : Mr. TT Magabe
INSTRUCTED BY : Magabe Attorneys Incorporated
Polokwane
thabo@magabeattorneys.co.za
FOR THE FIRST AND SECOND
RESPONDENTS
: No appearance
INSTRUCTED BY : Legal Aid Clinic
University of Limpopo
Polokwane
Chaka.mokhudu@ul.ac.za
FOR THE THIRD RESPONDENT : Adv. M de Jager
INSTRUCTED BY : DDKK Attorneys
Polokwane
mp@ddkk.co.za
maryke@corelaw.co.za