IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No. 5171/2015
Case No.4070/2015
In the matter between:
KOMMANDANTSDRIFT Plaintiff
and
JOHANNES BRITS First Defendant
NICO LE ROUX Second Defendant
REGISTER OF DEEDS Third Defendant
ABSA BANK LIMITED Fourth Defendant
Coram: NUKU J
Heard on: 21 November 2024
Delivered on: 13 January 2025
JUDGMENT
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NUKU, J
[1] The ongoing dispute between the parties in this matter relates to the validity of
two transfers of the property known as The Farm Oude Zanddrift Number 446, situated
in the Division of Uniondale, Western Cape Province ( the property ). The first is the
transfer of the property from the plaintiff to the second defendant which was registered
at the Deeds Office in Cape Town on 21 Septem ber 2000 (the first transfer ). The
second is the subsequent transfer of the property from the second defendant to the first
defendant which was registered at the Deeds Office in Cape Town on 17 July 20 08 (the
second transfer ).
[2] The property is currently registered in the name of the first defendant under Deed
of Transfer Number T 47986/2008 and two mortgage bonds are registered over the
property, one in favour of Absa Bank Limited, the fourth defendant and the other in
favour of Sentraal-Suid Kooperasie Limited (SSK). SSK is not a party to these
proceedings because it elected to abide the court’s decision when these proceedings
were brought to its attention.
[3] The property is a product of a consolidation of the following two properties ,
namely Portion 3 (a portion of portion 2) of the Farm Zand Drift Number 118 ( Micheal’s
Farm ) and Portion 2 (a portion of portion 1) of the Farm Onder Zanddrift Number 119
(the Wedge ) in respect of which the Certificate of Consolidated Title Number
T90464/1994 was i ssued by the Registrar of Deeds, Cape Town on 29 November 1994.
[4] Prior to the c onsolidation referred to above Micheal’s Farm had been registered
in the names of Mr Micheal Arnaoldus Le Roux (Micheal ) and Mrs Petr a Le Roux and
this may explain why it became known as Micheal’ s Farm. The Wedge, on the other had
been part of another property known as Portion 1 of the Farm Onder Zanddrift Number
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119 which was registered in the name of Mr Meyer Le Roux (Mr Le Roux ), the father of
Mr Meyer Le Roux ( Meyer ), Nico Le Roux ( Nico ) and Micheal.
[5] During 1993, Mr Le Roux subdivided Portion 1 of the Farm Onder Zanddrift
Number 119 to create the Wedge which he transferred to Micheal and his wife during
1994. Micheal and his wife, in turn consolidated the Wedge w ith Micheal’s Farm to
create the property as mentioned in paragraph 3 above.
[6] The plaintiff acquired the property from Micheal and his wife in terms of a Deed
of Transfer registered at the Deeds Office in Cape Town on 11 December 1997 under
Deed of Transfer Number T119146/1997. Meyer is the sole member of the plaintiff.
[7] During 2000, the plaintiff and the second defendant concluded an agreement for
the sale of the property (the 2000 agreement of sale ) pursuant to which the property
was transferred to the second defendant as described above. It is now common cause
that the plaintiff and the second defendant laboured under a common mistake tha t they
were only dealing with Micheal’s Farm and not the Wedge or the property . It is because
of this common mistake that Parker J declared the agreement of sale void , a decision
which the first defendant has unsuccessfully appealed.
[8] During 2008, the first and second defendant s concluded an agreement for the
sale of the property (the 2008 agreement of sale ) pursuant to which the property was
transferred to the first plaintiff. Again, Parker J has determined that this agreement of
sale is void because of the common mistake that the first and second defendants
laboured under when they concluded the agreement, namely that they were dealing
with Micheal’s Farm and not the Wedge or the property.
[9] In declaring the two agreements of sa le void, Parker J either omitted or was not
called upon to deal with the issue of the validity of the transfers pursuant to which the
property was transferred. When the matter served before the Supreme Court of Appeal,
that court declined to decide the issue as a court of first instance and referred it back to
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this court for determination. Thus, this court is required to determine the validity of the
first and second transfers. The p laintiff appreciating that a decision on this issue is not
dispositive of the entire lis t between the parties , has indicated that the issue of a
consequential relief, in the eve nt of the transfers being declared void, will have to be
dealt with at a later stage.
[10] No additional evidence was led for the purposes of determining the validity of the
transfers and the court was requested to determine the issues based on the evidence
that was led in the trial before Parker J. That evidence has been summarised both in
the judgment of Parker J , as well as the Supreme Court of Appeal judgment and in my
view, it is not necessary to summarise it again. It suffices to state that what th at
evidence boiled down to is that the plaintiff never intended to sell the property to Nico
and Nico never intended to purchase the property from the plaintiff because both parties
intended to buy and sell Micheal’s Farm. Further , Nico never int ended to sell the
property to the first defendant because as he only meant to sell Micheal’s Farm which
as his understanding was that he had only acquired Micheal’s Farm from the plaintiff.
[11] The submissions made on behalf of the plaintiff, paraphrase d amount to this –
regarding the first transfer - the plaintiff had no intention of transfer ring the property to
the second defendant because it never intended to sell the property to the second
defendant in the first place . Similarly, the se cond defendant had no intention of taking
ownership of the property as he, when taking ownership of the propert y, laboured under
the mistaken idea that he was taking ownership of Michael’s Farm , this being the
property he understood to have bought from the plaintiff .
[12] As regards to the second transfer – the submissions are that the second
defendant who did not regard himself as the owner of the property had no intention of
passing ownership of the property to the first plaintiff . This is because he could never
have int ended to pass ownership of something that he did not think was his. The
submission goes further that judging from the conduct of the first defendant , he also
could not have intend ed to take ownership of the property . Thus, so goes the
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submission, the common mistake that vitiated the agreements of sale should also vit iate
the transfers.
[13] The conduct of the first defendant referred to above is the fact that the first
defendant had allowed the plaintiff to continue with its farming operations on the
Wedge , in the period between 2008 and 2012, without a demur . This, however, only
changed when the first defendant engaged the services of a land surveyor who advised
that the extent of the property includes the Wedge . In short, the argument is that the first
defendant, prior to the advice by the land surveyor, did not regard the Wedge as part of
the property.
[14] It was submitted on behalf of the first defe ndant that the plaintiff is not entitled to
claim retransfer of the property because Nico, in signing the necessary documents on
the basis of which the transfer of the property was effected, signalled his intention to
pass ownership of the property to the fist defendant. It was submitted further that the
voidness of the underlying agreement for the sale of property is irrelevant for the
purposes of determining the validity of the transfer of the property . The latter argument
is based on the land registratio n system that South Africa has adopted called the
abstract system of transfer in terms of which the validity of the transfer does not depend
on the validity of the underlying agreement pursuant to which the transfer is effected.
[15] Both parties approached the matter from a correct legal position that the abstract
system of land registration applies with the result that the underlying agreement
pursuant to which the transfer is registered is not determinative of the validity of the
transfer. In this regard both parties referred the court to the decision of the Supreme
Court of Appeal in Legator McKenna Inc and Another v Shea and Others1 where
Brand , JA stated the following:
‘In accordance with the abstract theory the requirements for the passing of
ownership are twofold, namely, delivery – which in the case of immovable
1 2010 (1) SA 35 (SCA) at para [22]
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property , is effected by registration in the Deeds Office – coupled with a so -called
real agreement or “saak like 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 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, for
example sale, ownership will not pass – despite registration of transfer – if there
is a defect in the real agreement …” (footnotes omitted)
[16] None of the parties take issue with the first requirement for the passing of
transfer, namely, the registration of the property at the Deeds Office in Cape Town in
the name of the first defendant. The issue is whether such registration was coupled with
the so -called real agreement and as Brand JA stated, the principles applicable to
agreements apply to real agreements. Essentially then this involves a factual enquiry
whether the registration of the property at the Deeds Office in Cape Town in the name
of the first defendant was coupled with an intention on the part of Nico to transfer
ownership and the intention on the part of the plaintiff to become owner of the property.
[17] On the acceptance of the common cause facts that Nico never intended to
purchase the property from the plaintiff it seems to me that it follows logically that he
could never have intended to give what he never thought he had in the first place .
Otherwise, Nico would have had to have two intentions at odd with each other, that is
one intention to sell only Micheal’s F arm and another intention to give transfer of the
property. For that conclusion to be reached one would need clear evidence that Nico
had become aware of the fact that he had acquired not only Micheal’s Farm but the
entire property. His awareness of this f act would have to be shown to exist pri or to him
signing documents necessary to pass transfer. No such evidence was presented in this
matter.
[18] In my view, the first defendant misconstrued the plaintiff’s argument as if plaintiff
relied on the voidness of the agreements of sale as its basis of attacking the validity of
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the transfers. This may have been due to the fact that the plaintiff prefaced its
arguments with reference to the judgment that declared the agreemen ts of sale void.
But that was not the end of the plaintiff’s argument as paragraph 19 of the plaintiff’s
heads of argument makes plain :
‘As important as the court’s declaration that the contracts were void ab initio, is
the reason why they were found to b e void. They were found to be void because
both parties did not intend to buy, sell and transfer the property . They intended to
buy, sell and transfer something else, i.e the property less the piece of land
known as the wedge, a piece of land known as Mich eal’s Farm.’
[19] I must hasten to add that the reason that the agreements were found to be void,
did not include the fact that the parties never intended to transfer the property as that
issue was left undetermined. That court held that the parties intended to buy and sell
something (Micheal’s Farm) but the agreements recorded the Merx as the property due
to a common mistake between the parties , as the property . But as I understand the
plaintiff’s argument it is that the parties could never have intended to give and take
transfer of something different to which they intended to buy and sell in the firs t place.
So, the argument relies not on the invalidity of the agreements of sale but on the
mistake which resulted in the agreements of sale being found to be void.
[20] In my view, the fact that Nico signed the necessary documents to pass transfer of
the property to the plaintiff cannot assist the plaintiff in the absence of evidence to
support a conclusion that Nico intended to give transfer of the property to the first
defendant. The first defendant also gave no evidence to suggest that he regarded
himself as the owner of the property from the date of its registration into his name. This
is hardly surprising in view of the fact that it took him approximately four years b efore he
started laying claim to the Wedge and that this only came about after he had consulted
a land surveyor . Had he regarded himself as having acquired the property including the
Wedge, he would have undoubtedly asserted his rights soon after taking tr ansfer of the
property.
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[21] The first defendant has also sought define a “real agreement” with reference to
the Deeds Registries Act, 47 of 1937, as amended ( Deeds Reg istries Act ) and the
regulations promulgated thereunder. This, however, cannot assist the first defendant in
that it cannot provide evidence of the presence or absence of an intention of the
transferor to pass transfer a s well as an intention on the part of the transf eree to
become owner of the property being transferred.
[22] Reference was also made to some academic writings criticising the abstract
system and in particular an extract from LAWSA2 where the author states:
‘The most serio us objection to the abstract principle is that it works unfairly
towards the transferor who is left with a condictio on the ground of unjust
enrichment instead of a rei vindication. The transferor is especially hard hit in
cases where the transferee is insolvent. Since the transferee acquired ownership
in the article, he or she can also give valid title to a third party who will be
protected against the claims of the first transferor. The abstract principle thus
gives preference to considerations of legal certainty over considerations of
fairness. In this sense the abstract principle supp orts the principle of publicity.
Third parties who rely on the impression that a transfer has been competed are
protected.’
[23] With reference to the above passage it was submitted that titles of the first
defendant (as the second transferee) , Absa Bank as well as SSK (as bondholders over
the property) are protected because they can rely on the accuracy and reliability of the
documents held by the Deeds Office which are public documents.
[24] The criticism of the a bstract principle, in my view, misses the point. A transferor
who had an intention to pass transfer of a property can never be heard to complain
about being held to a transfer that he or she intended to give. The criticism seems to
2 LAWSA Vol 27, Things, para 13
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conflate situations where a transferor could potentially assail the transfer based on
some defect regarding the underlying agreement . In that case it is the real agreement
that must prevail regardless of some defect in the underlying agreement. A defect in the
real agreement, on the other hand, is fatal to the transfer . This is because the
registration of transfer that is not coupled with the real intention does not result in a valid
transfer. In my view, there is thus no merit in this argument.
[25] To recap, the evidence established that the plaintiff, first and second defendant
all laboured under the mistaken understand ing that the property that they were dealing
with was the Micheal’s Farm. Contrary to that under standing it was the property that
was transferred and not Micheal’s Farm. It was not even possible for the parties to
transfer Micheal’s Farm as the latter ceased to exist , in a form capable of being
transferred, when it was consolidated with the Wedge to create the property. Such a
mistake is of such a nature as to render the transfer void in that at the time when the
transfer was registered the plaintiff’s intention in respect of the first transfer was to give
transfer of Micheal’s Farm . For his part, Nico’s intention was to become owner of
Micheal’s Farm and not the property. There was thus a defect in the real agreement the
consequence of which is that there was no valid transfer of the property. The plaintiff is
therefore entitled to the relief set out in p rayers A1 to A3 of the summons to be declared
as the rightful owner of the property , to have the records held by the Registrar of Deeds,
Cape Town rectified to reflect it as the rightful owner of the property as well as an order
directing the third defendant to rectify it s records to reflect the plaintiff as the rightful
owner of the property.
[26] The above outcome concludes only but one aspect of the litigation between the
parties, that is the issue of the rectification of the documents held at the Deeds Office in
Cape Town to reflect the plaintiff as the owner of the property. There are still
outstanding issues including the monies exchanged between the parties as part of the
purchase price. As well as mortgage bonds registered over the property . The parties’
legal representatives did not make it clear whether the order, in the event of the plaintiff
being successful, would be carried into effect immediately before dealing with what the
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plaintiff’s lega l representatives termed consequential relief. The parties are at liberty to
determine these issues among themselves failing which they can approach the court for
direction on whether this order is to be carried into effect immediately or whether the
order is suspended pending finalisation of the residual issues including the
consequential relief.
[27] The plaintiff has been successful, and I am of the view that the costs should
follow the result. Only the first defendant defended the action and as such the costs are
awarded only against him. The plaintiff has submitted that costs should be awarded on
the C -scale given the complexity of the matter. I am not persuaded that costs on the C -
scale are warranted. The ma tter involves an application of trite principles to a given set
of fact. The facts themselves do not present any complexity . Costs therefore shall be
awarded on t he B-scale.
ORDER
[28] In the result I make the following order:
28.1 It is declared that t he plaintiff is the owner of the property known as The
Farm Oude Zanddrift Number 446, situated in the Division of Uniondale,
Western Cape Province ( the property ) which is currently registered at the
Deeds Office in Cape Town in the name of the first defendant under Deed
of Transfer Number T 46 007/2008 ( the D eed of Transfer );
28.2 The Deed of Transfer and / or any other deeds or documents held by the
third defendant relating to the property are be re ctified to reflect the
plaintiff as the owner of the property ;
28.3 The third defendant is authorized and directed to give effect to the orders
set out in sub-paragraphs 26.1 and 26.2 above ;
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28.4 The first defendant is ordered to pay the plaintiff’ s costs of suit on the B -
scale including costs occasioned by employment of counsel;
28.5 The parties are granted leave to approach the court for directions on
whether sub -paragraphs 26.1 to 26.3 of this order are to be carried into
effect immediately or w hether the y are to be suspended pending
finalisation of the residual issues including the consequential relief .
__________________________
L.G. Nuku
Judge of the High Court
APPEARANCES
For plaintiff : P A Myburg SC
Instructed by: Cluver Markotter Attorneys , Stellenbosch
For first defendant : J I Du Toit SC
Instructed by : Le Roux Lamprecht Inc, George
For Second to
Fourth defendants : No appearance