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[2019] ZASCA 149
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Van Wyk v The MEC: Department of Local Government and Housing of the Gauteng Provincial Government and Others (1026/2018) [2019] ZASCA 149 (21 November 2019)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1026/2018
In the matter between:
MARK VAN
WYK
APPELLANT
and
THE MEMBER OF THE EXECUTIVE COUNCIL: DEPARTMENT OF LOCAL
GOVERNMENT AND HOUSING OF THE GAUTENG
PROVINCIAL
GOVERNMENT
FIRST RESPONDENT
THE
MINISTER OF THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM OF
THE REPUBLIC
OF SOUTH
AFRICA
SECOND RESPONDENT
THE MINISTER OF
PUBLIC WORKS OF THE REPUBLIC
OF
SOUTH
AFRICA
THIRD RESPONDENT
THE REGISTRAR OF
DEEDS, PRETORIA
FOURTH RESPONDENT
THE SHERIFF OF THE
COURT, PRETORIA SOUTH EAST
FIFTH RESPONDENT
Neutral
citation:
Van Wyk v The MEC: Department of Local Government
and Housing of the Gauteng Provincial Government
(1026/2018)
[2019] ZASCA 149
(21 November 2019)
Bench:
Ponnan, Van der Merwe, Mocumie and Mbatha JJA and Eksteen AJA
Heard:
6 November
2019
Delivered:
21 November 2019
Summary:
Pleadings – define the issues and scope and ambit of the
dispute between the parties – court declining to order transfer
on the basis that the immovable property did not vest in the seller –
such issue not properly raised on the pleadings or
ventilated in the
evidence and therefore ought not to have been a triable issue in the
proceedings.
ORDER
On appeal from
:
Gauteng Division of the
High Court, Pretoria (Khumalo J sitting as court of first instance):
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
is set aside and replaced
by:
‘(a) The first defendant is ordered to sign all
documentation and perform all such acts as may be necessary to effect
transfer of Erf 302 Moreletapark and Erf 537 Moreletapark (the
properties) to the plaintiff, subject thereto that in the event
that
the first defendant has returned the existing guarantee to the
plaintiff or in the event that the existing guarantee has lapsed
prior to the issue of this order, it shall be effected against prior
delivery to the first defendant of a replacement bank guarantee
issued by a recognised financial institution for payment of the
balance of the purchase price in respect of the properties in the
total sum of R543,000.00, payable against registration of transfer of
the respective properties;
(b)
Failing first defendant’s compliance
with the order in
paragraph 1 above within 30 days of the date of this order
(alternatively within 30 days of date of the delivery
of the
aforesaid replacement guarantee), the fifth defendant is authorised
and directed to sign all documentation and to perform
all such acts
as may be necessary on behalf of the first defendant, in order to
effect registration and transfer of the properties
to the plaintiff;
(c)
The fourth defendant is directed, to the
extent necessary, as a
precursor to effecting transfer to the plaintiff, to make such
entries or endorsements in or on any relevant
register, title deed or
other document to cause registration of the properties into the name
of the first defendant.
(d)
The first defendant is ordered to pay the
costs of the plaintiff’.
JUDGMENT
Ponnan JA (Van Der Merwe, Mocumie and Mbatha JJA and Eksteen AJA
concurring):
[1]
This is an appeal against a judgment of the Gauteng Division
of the High Court, Pretoria (per Khumalo J) whereby the appellant’s
claim against the Gauteng Provincial Government for transfer of two
notarially tied erven in Moreletapark, Pretoria was dismissed,
ostensibly on the basis that the properties in question did not vest
in the latter.
[2]
The first of the two properties, Erf 302, was knocked down at
a public auction on 15 June 2000 to the appellant, Mr Mark Van Wyk,
for the sum of R570 000. At the conclusion of the auction the
appellant signed a document entitled ‘Conditions of Sale –
Public Auction’, which inter alia provided that: (a) ‘the
State Attorney will undertake registration of the property
in the
name of the purchaser’ and (b) ‘the Purchaser accepts the
sale of the property on the terms and conditions set
out in the deed
of sale’. The deed of sale, which was subsequently signed by
the parties, reflected the Gauteng Department
of Development Planning
and Local Government (the department) as the seller. Although the
appellant duly performed his obligations
in terms of the deed of sale
by, inter alia, timeously paying the deposit of R57 000 (being 10% of
the purchase price) and securing
the balance of R513 000 by way of a
bank guarantee from a recognised financial institution, it proved
impossible for him to obtain
registration and transfer of the
property.
[3]
Five years were to pass before the department explained, in a
letter dated 17 January 2005, that it was having difficulty in
effecting
transfer of the property to the appellant due to the fact
that it was notarially tied to Erf 537. The letter continued: ‘we
have evaluated the outer portion . . . and the market value is R
30,000. I will appreciate an indication from you, accepting this
price as to ensure finalization of the transaction.’ On 21
February 2005 the appellant replied: ‘I am prepared to pay
an
additional amount of R 30,000 (inclusive of VAT) in respect of the
portion of land referred to . . . as Erf 537 Moreletapark’.
The
parties thereafter entered into a second written agreement of sale in
respect of Erf 537 for the sum of R30 000. However, any
hope on the
part of the appellant that the matter had been resolved was
short-lived, because on 7 July 2005 the department addressed
a
further letter to the appellant in which it recorded that the
properties ‘have not been vested with the Gauteng Provincial
Government, and it will delay the process of transferring the
properties to your name’. The letter added: ‘[w]e
therefore
suggest that the matter should be treated with patience as
our Office is busy with the application of Item 28(1) certificate’.
[4]
On 30 July 2007 the department despatched a memorandum to the
Department of Land Affairs (now Department of Rural Development and
Land Reform), with a view to obtaining ‘a signed Certificate in
terms of Item 28(1) of Schedule 6 to the Constitution of
the Republic
of South Africa . . . confirming the vesting of [Erf 302] in the name
of the Gauteng Provincial Government’
and ‘to obtain the
concurrence of the Minister . . . for the disposal of the subject
property’. In relevant part, the
memorandum reads:
‘
2.3
According to the Gauteng Department of Local Government the property
was vacant and earmarked for educational purpose. The Directorate:
Land Management in the Gauteng Department of Local Government was
mandated to dispose of this property by the Gauteng Provincial
Department of Education . . . .
3.
Discussion
3.1 The Gauteng Provincial
Department of Education is of the opinion that the property is
superfluous to the needs of the State.
The subject property was sold
to a third party at an Auction during 1998 and is therefore not
available for land reform purposes’.
The
memorandum concluded:
‘
4.
Recommendations
4.1
In view of the above, it
is
recommended
that
the accompanying Certificate in terms of Item 28(1) of Schedule 6 to
the Constitution of the Republic of South Africa, 1996
(Act No. 108
of 1996) be signed whereby, Erf 302 Moreletapark, Registration
Division J.R, in extent of 1.0100ha; is vested in the
name of Gauteng
Provincial Government.
4.2
It is also
recommended
that you concur to
the Gauteng Provincial Government intended disposal of the above
property’.
[5]
On 10 October 2008 the Department of Land Affairs approved the
recommendation. The following certificate then issued on 25 November
2008:
‘
I,
Mduduzi Petrus Shabane, Acting Director-General of the Department:
Land Affairs, acting in the name and on behalf of the Republic
of
South Africa, a competent authority as contemplated by Item 28(1) of
Schedule 6 to the Constitution of the Republic of South
Africa, 1996,
do hereby certify that the following property / properties owned by
the State, namely:
1.
Erf 302 Moreletapark,
Registration Division JR, Province of Gauteng Measuring: 1,0100 (One
comma Zero One Zero Zero) hectare
Held
vide
Title Deed No. T9685/1978
2.
Erf 537 Moreletapark
Extension 7, Registration Division JR, Province of
Gauteng Measuring: 393
(Three Nine Three) square metres
Held
vide
Title Deed No. T42699/1981
Has / have vested in the
Provincial Government of Gauteng in terms of Section 239 of the
Constitution of the Republic of South Africa,
1993 (Act 200 of 1993).
In terms of Item 28(1) of Schedule 6 to the Constitution of the
Republic of South Africa, 1996, I request
the Registrar of Deeds,
Pretoria to endorse the vesting of the immovable property /
properties in the name of the said Government,
on the relevant title
deed(s), register(s) or other document(s)’.
[6]
Despite now having to hand the Item 28 certificate, the
department had a change of heart. Why, remains unexplained. In a
letter
dated 14 April 2010, the department wrote: ‘
The
above refers. Kindly note that the Department is of the opinion that
the purported agreement of sale pursuant to the auction
held in 2002,
and any other agreement that might have been entered into in relation
to the two Erven mentioned above, is of no
force and effect.
You
should note that at the time of the purported agreement, the said
Erven did not vest in the Gauteng Provincial Government but
the
National Government, which in term of
Section 2(1)
of the
State Land
Disposal Act, 1961
, only the President has the authority to dispose
of the said land. In the circumstances, the GPG did not have any
legal authority
to enter into the agreement nor dispose of the
property and as such, acted
ultra vires
. Accordingly, there is
no valid cause for the transfer of the property to Van Wyk
Development Corporation.’
[7]
Thus, almost a decade after the appellant had purchased Erf
302 at the auction, he was compelled to issue a combined summons out
of the North Gauteng High Court, Pretoria on 21 November 2011. The
Member of the Executive Council: Department of Local Government
and
Housing of the Gauteng Provincial Government (the successor to the
department) was cited as the first defendant. The Minister
of Rural
Development and Land Reform, the Minister of Public Works, the
Registrar of Deeds, Pretoria and the Sheriff of the Court,
Pretoria
South East were cited respectively as the second to fifth defendants.
Aside from the first defendant, the others took
no part in the
proceedings. The first defendant, who defended the appellant’s
claim in the court below and opposes the appeal
in this court, will
henceforth be referred to as the respondent.
[8]
In the main, the appellant sought an order that the respondent
‘sign all documentation and perform all such acts as may be
necessary to effect transfer of Erf 302 Moreletapark and Erf 537
Moreletapark’ to him. Alternatively, the appellant sought
repayment of the deposit in the sum of R 57,000 plus interest and
costs. The matter proceeded to trial before Khumalo J, who dismissed
the main claim but upheld the alternative claim with costs. The
appeal by the appellant against the dismissal of the main claim
is
with the leave of that court.
[9]
The high court held ‘[n]otwithstanding being satisfied
that the execution of the sale agreements was proven, for the seller
to be able to pass transfer or for the sale agreement to constitute a
valid sale, the seller should be the owner or have been authorized
by
the owner to sell the property’. In that, it was plainly wrong.
It is trite that it is not a requirement for a valid
contract of
sale that the seller must be the owner of the thing sold. As it was
put in
Köster v Norval
:
[1]
‘
In
Alpha Trust (Edms) Bpk
v Van der Watt
1975 (3) SA 734
(A)
743H-744A, Botha JA summarized the legal position as follows:
“
Dit
is duidelik dat dit vir ‘n geldige koopkontrak volgens ons reg
geen vereiste is dat die verkoper van die koopsaak eienaar
daarvan
moet wees nie. Ofskoon dit die doel van die koopkontrak is dat die
koper eienaar van die verkoopte saak moet word, is die
verkoper egter
nie verplig om
die
koper eienaar daarvan te maak nie. Hy moet die koper slegs in besit
stel en hom teen
uitwinning vrywaar. Dit
beteken dat die verkoper daarvoor instaan dat niemand met ‘n
beter reg daartoe die koper wettiglik
van die verkoopte saak sal
ontneem nie, en dat hy, die verkoper, die koper in sy besit van die
saak sal beskerm”.
[2]
G R J Hackwill,
Mackeurtan’s
Sale of Goods in South Africa
,
5
th
ed
states:
“
As has been indicated
elsewhere, although the parties to a contract of sale usually
contemplate a transfer of ownership in the thing
sold, this is not an
essential feature of the contract, and sales by non-owners are quite
permissible”. (p 23, para 3.1.1.)
“
The
delivery required of a seller is the delivery of undisturbed
possession (
vacua
possessio
) coupled
with the guarantee against eviction. It is not necessary that the
seller should pass the ownership, for the implied engagement
of the
seller is a warranty against eviction and not a warranty of title,
but he must divest himself of all his proprietary rights
in the thing
sold in favour of the purchaser.” (p 66, para 6.2)
(See
also De Wet & Van Wyk,
Kontraktereg en Handelsreg
, 5th ed,
vol 1 p 329)’.
[10]
The high court further reasoned:
‘
58. Firstly, the item
28(1) certificate was invalid since it was issued by the Acting
Director General of the Department of Land
Affairs dated 25 November
2008, instead of the Minister. No causa for such endorsement is
mentioned except that the Minister concur
for its disposal. That is
contrary to the purpose mentioned in the Title Deed for which the
property was transferred to the state.
59.
Furthermore it was not
possible for the Minister of Agriculture and Land Affairs to alter
the vesting of a property from the National
Government to the
Provincial Government by merely issuing a new certificate in terms of
item 28(1). The court regarded the certificate
as a tool to effect
registration by the Minister of Land Affairs of a vesting to the
National Government; see the unreported judgment
of the SCA in
Yellowstar Properties
v Department of Development Planning and Local Government
(549/07)
[2009] ZASCA 25
(27 March 2009).
60.
The properties therefore
at the time of sale were not vested in the Provincial Government,
specifically the Department of Local
Government and Housing or
Department of Education. It was therefore ultra vires the MEC’s
authority to dispose of the properties
that being contrary to the
s
2(1)
provision of the Disposal Act.
61.
In the memorandum to the
Minister it is mentioned that the properties were to be vested on the
Provincial Government for the purposes
of being disposed to third
parties, which is not a valid causa for the purpose of transfer. The
vesting is said to have already
happened in terms of s 239 of the
Interim Constitution when it came into operation on 27 April 1994.
The effects of non- compliance
or misuse of the certificate
undermines the Constitutional principles contained in s 40 and 41 of
the Constitution itself and hampers
efficient land administration and
reform.’
[11]
It is unclear how any of these came to be triable issues in
the case. They were not raised by the respondent on the pleadings.
Pleadings
play a vital role in litigation. They define the issues as
well as the scope and ambit of the dispute between the parties. Save
for the first 6 paragraphs of the appellant’s particulars of
claim, which were introductory in nature, the remaining allegations
were met with the following response in the respondent’s plea:
‘[a]ll averments herein contained are denied and the
Plaintiff
is put to the proof thereof’. That repeated refrain appears
some 21 times in the plea. The plea did not answer
any of the points
of substance raised by the appellant. A plea must state clearly and
concisely all the material facts on which
a defendant relies and must
be of sufficient precision to enable a plaintiff to know what case he
or she needs to meet.
[12] Although nothing was made in
the high court of the point that the plea may well have run
afoul of
rule 22(2),
[3]
that the respondent simply contented itself with a string of bare
denials, appears to have compelled the appellant to adduce evidence
at the trial, the greater part of which proved in retrospect to be
either common cause or undisputed. The appellant, an advocate,
testified that having seen a newspaper advertisement for the sale of
120 Gauteng Provincial Administration properties, he attended
the
public auction over three days in June 2000. Of the three properties
that he purchased at the auction, the other two were successfully
transferred into his name by the department. The appellant was
accompanied by the second witness, Mr Savvas Skordis, a close friend,
who not only witnessed the appellant’s signature on the
conditions and deed of sale in respect of Erf 302, but also himself
purchased a property at the auction. The third witness was Mr Kevin
Gie, who testified that he delivered the relevant bank guarantees
to
the department. The respondent did not call any witnesses. The only
case advanced in cross-examination of the plaintiff and
his witnesses
was that it denied having concluded any contract with the plaintiff.
[13]
Much of the evidence adduced on behalf of the appellant was
taken up with the long history, lengthy exchange of correspondence
and
the department’s sudden and unexplained about-turn after a
decade of generally lackadaisical and desultory responses to the
appellant’s increasingly plaintive demands for transfer.
Unsurprisingly, the high court found that the ‘evidence of
all
the witnesses was clear, cohesive and honest’; and that ‘the
matter was decided pretty much reliant upon this evidence’.
It
accordingly held that the sale agreements relied upon by the
appellant had been proved. As I shall show, that should have been
the
end of the matter.
[14]
The summons alleged, in part, that:
‘
23. Erven 302 and 537,
Moreletapark at all relevant times constituted provincial land, as
envisaged by the provisions of Section
2 and as defined by Section 1
of the Gauteng Land Administration Act, 11 of 1996,
[4]
vesting in the Gauteng
Provincial Government in accordance with the provisions of section
239(1)(
b
)
of the Constitution of the Republic of South Africa (Act 200 of
1993), which vesting is confirmed:–
23.1
in a memorandum dated 30
July 2007, annexed hereto and marked annexure “N”, as
confirmed by the Second Defendant’s:–
23.1.1
Acting Chief Director:
Gauteng Provincial Land Reform Office on 30 July
2007;
23.1.2
Director: Public Land
Support Services on 10 November 2008;
23.1.3
Deputy Director-General:
Land and Tenure Reform Implementation on 25 November 2008; and
23.1.4
Acting Director-General
on 25 November 2008.
24. The certificate in terms of
item 28(1)
[5]
was issued following an
application by the First Defendant and following confirmation of the
vesting of the Erf 302 and Erf 537
in the Provincial Government of
Gauteng by the Gauteng Provincial State Land Disposal Committee, as
confirmed by a memorandum issued
by the Director: Public and Support
Services of the First Defendant on 10 October 2008 . . . .’
Counsel
for the respondent submitted that it was for the appellant to have
adduced the necessary evidence in support of these allegations.
I
cannot agree.
[15]
In my view those allegations were superfluous to the
appellant’s cause of action, which sought no more than to
simply enforce
each of the two deeds of sale against the respondent.
The high court approached the matter on the basis that the appellant
bore
the overall onus and that it was for him to adduce the necessary
evidence that Erf 302 and Erf 537 vested in the respondent. But
it
was not for him to do so. It is important to point out that the term
onus
is not to be confused with the burden to adduce
evidence.
[6]
Here, had such a defence availed the
respondent, it was for the respondent to have
specifically
raised it in the pleadings and adduced evidence in
support thereof. It did not. What is more, a case may not be decided
by invoking
relevant legislation which is not relied upon in the
pleadings.
[7]
[16]
Further, the high court took the view that ‘the item 28
certificate was invalid since it was issued by the Acting
Director-General
of the Department . . . instead of the Minister’.
The provincial department had applied to the national department for
the
issuance of the certificate. The national department considered
and approved the request, which had the blessing of the Gauteng
Provincial State Land Disposal Committee. The memorandum also
required the national department ‘to obtain the concurrence
of
the Minister . . . for the disposal of the subject property’.
In those circumstances, in issuing the certificate, the
Acting
Director-General was plainly acting in terms of powers delegated to
him.
[17]
In any event, the Item 28(1) certificate could not simply be
disregarded as if it had never existed. Until set aside by a court in
proceedings for judicial review the Item 28(1) certificate exists in
fact and has legal consequences that cannot simply be overlooked.
[8]
This principle, laid down by this court in
Oudekraal
, received
the
imprimatur
of the Constitutional Court in
Kirland
.
It there held
that an ‘invalid
administrative action may not simply be ignored, but may be valid and
effectual, and may continue to have
legal consequences, until set
aside by proper process’.
[9]
Moreover, there was no challenge by the respondent to the
certificate.
As a ‘good
constitutional citizen’, the respondent should either have
accepted the certificate as valid, or gone to
court to challenge it
head-on.
[10]
That it failed to do. Thus, the high court in effect upheld a
collateral challenge to the Item 28(1) certificate, which the
respondent
had not and could
not
raise in these proceedings. This, in circumstances where none of the
other defendants, who were cited by the appellant, had
participated
in the proceedings or opposed the relief
sought.
[18]
Finally, it is necessary to pass certain observations about
Yellowstar
.
[11]
In that matter,
a copy of a certificate that
had issued in respect of the property by the Minister of Land Affairs
under Item 28(1) was handed up
during the course of the hearing
before the high court. The high court took the view that this
obviated the need to deal with the
relief sought, namely, transfer of
the property purchased from the Gauteng Provincial Government. It
accordingly merely granted
an order which authorised the registrar to
effect transfer upon receipt of ‘the certificate’ from
the Minister of Land
Affairs. But the document handed in certified
that the property vested in national government and, in itself,
rather than providing
the solution to the problem, constituted the
very obstacle to the property being transferred to the applicant. In
dismissing an
application for leave to appeal brought by the Minister
of Land Affairs, the high court clarified that while the certificate
handed
in had been in the name of national government, the papers
stated that the provincial government was in the process of obtaining
the property from national government to enable it to effect
transfer, and that the stage at which it could do so had not been
reached. This indicated that the high court had not intended to
authorise transfer directly into the name of the applicant at that
stage, but merely to authorise the registrar of deeds to do so when
the certificate reflecting provincial government as owner had
come to
hand. Unfortunately, no such certificate was ever issued, as the
national government persisted in opposing transfer of
the property to
the applicant at a price that bore no relationship to its true market
value. As a result, the order of the high
court in no way overcame
the difficulty facing the applicant in that matter. The national
government remained the owner of the
property and the respondent
remained unable to transfer it to the applicant. On the facts,
therefore,
Yellowstar
is
plainly distinguishable from the present matter.
[19]
In my view, the true importance of
Yellowstar
is
to be found in the following dictum
:
‘
Item
28(1) of Schedule 6 to the Constitution provides for a competent
authority to issue a certificate
in
respect
of
immovable
property
owned
by
the
state
indicating
in
which
particular
branch of government such property is vested, whereupon a registrar
of deeds must make such entries or endorsements necessary
to register
such property in the name of that sphere of government. In order for
the respondent to be able to effect transfer to
the appellant, it had
to obtain an item 28(1) certificate recording that the property
vested in the Gauteng Provincial Government.
And in order to obtain
such a certificate, it was necessary for the respondent to first
persuade National Government to transfer
the property to the Gauteng
Provincial Government.’
[12]
Unlike in
Yellowstar
,
here: (a) national government has not staked a claim to the property
and (b) the department has not only persuaded national government
to
transfer the property to it, but also to issue an Item 28(1)
certificate recording that the property vested in it. It follows
that, inasmuch as the appellant is entitled to transfer and no
impediment stands in the way thereof, the action ought to have
succeeded before the high
court.
[20]
In the result:
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
is set aside and replaced by:
‘(a) The first defendant is ordered to sign all
documentation and perform all such acts as may be necessary to effect
transfer of Erf 302 Moreletapark and Erf 537 Moreletapark (the
properties) to the plaintiff, subject thereto that in the event
that
the first defendant has returned the existing guarantee to the
plaintiff or in the event that the existing guarantee has lapsed
prior to the issue of this order, it shall be effected against prior
delivery to the first defendant of a replacement bank guarantee
issued by a recognised financial institution for payment of the
balance of the purchase price in respect of the properties in the
total sum of R543,000.00, payable against registration of transfer of
the respective properties;
(b)
Failing first defendant’s compliance
with the order in
paragraph 1 above within 30 days of the date of this order
(alternatively within 30 days of date of the delivery
of the
aforesaid replacement guarantee), the fifth defendant is authorised
and directed to sign all documentation and to perform
all such acts
as may be necessary on behalf of the first defendant, in order to
effect registration and transfer of the properties
to the plaintiff;
(c)
The fourth defendant is directed,
to the extent necessary, as a
precursor to effecting transfer to the plaintiff, to make such
entries or endorsements in or on any
relevant register, title deed or
other document to cause registration of the properties into the name
of the first defendant.
(d)
The first defendant is ordered to pay the
costs of the plaintiff’.
V M Ponnan Judge of Appeal
APPEARANCES:
For
Appellant:
CJ Nel
Instructed by:
Malherbe Rigg & Ranwell
Inc., Pretoria Symington & De Kok, Bloemfontein
For
First to Third Respondents:
VS Notshe (with him ME Ngoetjana)
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
[1]
Köster v Norval
[2015] ZASCA 185
;
[2015] JOL 34890
(SCA)
para 4.
[2]
Loosely translated as: ‘It is clear that it is not a
requirement of our law for a contract of sale to be valid that the
seller must be the owner of the thing sold. Although it is the
purpose of the contract of sale that the purchaser will become
the
owner of the thing sold, the seller is not obliged to give ownership
thereof to the purchaser. He is only obliged to place
the purchaser
in possession and to warrant that he will not be evicted. This means
that the seller guarantees that no-one with
a stronger right thereto
will deprive the purchaser of the possession of the thing sold and
that the seller will protect the
purchaser’s possession of the
thing.’
[3]
Uniform rule 22(2) provides: ‘The defendant shall in his plea
either admit or deny or confess and avoid all the material
facts
alleged in the combined summons or declaration or state which of the
said facts are not admitted and to what extent, and
shall clearly
and concisely state all material facts upon which he relies’.
[4]
Section 2 of the Gauteng Land Administration Act 11 of 1996
provides:
‘(1)
The Premier may, on such terms and conditions as he or she may deem
fit acquire immovable property or dispose of Provincial
land.
(2)
Immovable property acquired in terms of subsection (1) shall vest in
the Gauteng Provincial Government.’
‘Provincial
land’ is defined in s 1 as ‘any immovable property which
vests in the Gauteng Provincial Government
in accordance with the
provisions of section 239(1)(
b
) of the Constitution of the
Republic of South Africa, 1993 (Act 200 of 1993), together with any
immovable property acquired by
the Gauteng Provincial Government
pursuant to this Act’.
[5]
Item 28 of Schedule 6 to the Constitution, headed ‘Registration
of immovable property owned by the state’, provides:
‘(1)
On the production of a certificate by a competent authority that
immovable property owned by the state is vested in
a particular
government in terms of section 239 of the previous Constitution, a
registrar of deeds must make such entries or
endorsements in or on
any relevant register, title deed or other document to register that
immovable property in the name of
that government.
(2) No duty, fee or other charge is payable in respect of a
registration in terms of sub-item (1).’
[6]
In
Pillay v Krishna & another
1946 AD 946
at 952-953
Davis AJA observed:
‘[I]n
my opinion, the only correct use of the word “
onus
”
is that which I believe to be its true and original sense (
cf.
D.
31.22), namely, the duty which is cast on the particular litigant,
in order to be successful of finally satisfying the Court
that he is
entitled to succeed on his claim, or defense, as the case may be,
and not in the sense merely of his duty to adduce
evidence to combat
a
prima facie
case made by his opponent.’ See also
South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd
1977 (3) SA 534
(A) at 548.
[7]
Maphango & others v Aengus Lifestyle Properties (Pty) Ltd
2012 (3) SA 531
(CC) para 113.
[8]
Oudekraal Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA) para 26.
[9]
MEC for Health, Eastern Cape & another v Kirland Investments
(Pty) Ltd t/a Eye and Lazer Institute
[2014] ZACC 6
;
2014 (3) SA
481
(CC) para 102. See also
Merafong City Local Municipality v
AngloGold Ashanti Ltd
[2016] ZACC 35
;
2017 (2) SA 211
(CC) para
104 and
Department of Transport & others v Tasima (Pty) Ltd
[2016] ZACC 39
;
2017 (2) SA 622
(CC) para 88
.
In
Merafong
para 43 the majority made it clear that
Kirland
did not
‘fossilise possibly unlawful – and constitutionally
invalid – administrative action as indefinitely
effective’;
it only placed ‘a provisional brake’ on determining the
invalidity of the act.
[10]
Merafong
para 60
[11]
Yellow Star Properties 1020 (Pty) Ltd v Department of Development
Planning and Local Government (Gauteng)
[2009] ZASCA 25; 2009
(3) SA 577 (SCA); [2009] 3 All SA 475 (SCA).
[12]
Para 4