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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

Case number: 41128/2013

Date: 13 February 2014

In the matter between:

MB MOIMANE..............................................................Applicant

And

SR RACHIDI......................................................First Respondent

THE REGISTRAR OF DEEDS.....................Second Respondent

JUDGMENT

PRETORIUS J,

[1] The applicant seeks an order that the Registrar of Deeds - second respondent - should cancel the deed of ownership in respect of two immovable properties known as E…. 7…. and E… 6.., M…. A,

N…, Limpopo Province. These properties had been registered in the name of the first respondent 17 years ago. A further order is sought that the second respondent be ordered to register the half share of each property in the applicant’s name and the other half share in the estate of the deceased, who had passed away during 2007.

[2] The applicant was married to the deceased Mr Chuchu Stephan Moimane on 4 April 1981, in community of property. On 5 August 1985 the deceased received a deed of grant of ownership unit for residential purposes for Unit 7…, N… D…...

[3] In 28 January 1991, E… 6…, N…. district was also registered in the name of the deceased.

[4] On 17 October 1996 a decree of divorce was granted and it was ordered that the joint estate be divided This is 17 years ago.

[5] The applicant alleges that the deceased and the first respondent had colluded two months before the divorce to have these two properties transferred into the name of the first respondent. The applicant cannot provide any evidence to this effect.

[6] The first respondent denies these allegations vehemently. His evidence is that on 20 July 1992 the deceased approached him to buy these two erven to enable him to use the money to buy a tractor-trailor for his and the applicant’s business. The parties agreed to a selling price of R 40

0. 00 and R20 000.00 respectively for the two houses. He paid R10 000.00 as a cash deposit and thereafter as per agreement, R1000.00 per month, until the full price had been paid.

[7] It was furthermore agreed that the properties would only be transferred into the first respondent’s name once the full amount had been paid. The first respondent paid the R1000.00 cash to the applicant personally each month and she recorded the payments in a book which she kept.

[8] The deposit of R 10 000.00 was paid in cash on 30 August 1992 and this was recorded by the applicant. At each monthly payment of R1000.00 both the applicant and the first respondent signed in the book. The price for the two properties was paid in full during 1995. Both the deceased, who was the first respondent’s uncle, and the first respondent went to Smith Attorneys during 1995. Ultimately the properties were registered in the first respondent’s name on 26 June 1996.

[9] According to the first respondent the applicant had been aware of these transactions throughout and was the person to whom the monthly payment of R1000.00 was made. At no stage, after the divorce, and even after the deceased’s death did the applicant mention that the properties were fraudulently registered on the first respondent’s name. Although the applicant and first respondent live close together, she has never complained until now, although they have met numerous times after the deceased’s death.

[10] There is no explanation by the applicant as to why it took her so long to bring this application. The deceased and applicant were divorced in 1996 - 17 years ago. The deceased passed away in 2007 - 7 years ago. In all this time there were no complaints from the applicant. The applicant admits that she became aware of the first respondent’s ownership during 2007, after the deceased had passed away, but refrained from taking any steps. There is no explanation from the applicant as to why she had decided to keep quiet until now. The court would at least expect her to give a reason for her tardiness and lack of interest in this matter. The court would also expect that she would provide a reason for her sudden interest after 17 years.

[11] The applicant has no evidence at all that these properties were transferred to the first respondent in a fraudulent manner. In this instance the Master of the High Court would have an interest, but the applicant failed to join him.

[12] The first respondent’s counsel referred the court to Oriental Products (Pty) Ltd v Pegman 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA) where Shongwe JA held at paragraph 12:

“Under the abstract system the most important point is that there is no need for a formally valid underlying transaction, provided that the parties are ad idem regarding the passing of ownership”

[13] In Meintjies NO v Coetzer and Others 2010 (5) SA 186 (SCA)

Leach JA held at paragraph 21:

“At the outset I must record that cases such as Du Plessis v Prophitius and Legator McKenna (see para [8] above) recognised the abstract theory of transfer as part of our law, and that under that theory, even though a valid underlying contract (eg of sale) is not necessary, the passing of ownership of immovable property only takes place when there has been delivery effected by registration of transfer coupled with a so- called 'real agreement' or 'saaklike ooreenkoms', the essential elements of which are an intention on the part of a transferor to transfer ownership coupled with a corresponding intention on the part of the transferee to become the new owner3’

[14] The applicant has to prove the allegations set out in the affidavit upon a balance of probabilities. She has to prove that she had no

knowledge of these transactions as alleged by the first respondent. The court finds it strange that the applicant waited until after the death of the deceased to do a deed search and that the applicant waited a further six years to launch this application. The respondent sets out in great detail as to how he had acquired the two properties trying to help the deceased and the applicant at the time.

[15] She does not deal with the extraordinary length of time it took her to launch the application in her founding affidavit. In the Meintjies case (supra) the court held that where an applicant became aware that the property is no longer registered into the correct name, but in the first respondent’s name and did nothing to intervene by either writing a letter to the Registrar of Deeds, or confronting the respondent, or launching an application to court, the applicant is estopped from asserting her right to the property.

[16] In this instance the applicant has been divorced since 1996. At the time of the divorce she did not insist on her half share of these two immovable properties. She does not provide the court with any explanation. The deceased passed away in 2007 and only now, 6 years later she comes to court. The inference that the court can draw is that she had received the cash payment from the first respondent as alleged by the first respondent and had received her half share of the estate at the time of divorce.

[17] I have considered all the pleadings, authorities and arguements, mindful that the applicant has to prove her case on a balance of probabilities. I cannot find that the applicant has proven her case as required by law, as she had failed for 17 years to address the representation that the first respondent is the lawful and registered owner of the said two properties.

[18] The following order is made:

1. The application is dismissed with costs.

Judge C

Pretorius

Case number : 41128/2013

Heard on : 3 February 2014

For the Applicant / Plaintiff : Adv M Joubert

Instructed by : Mnisi

For the Respondent : Adv GS Maritz

Instructed by : Paul Coetzee

Date of Judgment : 14 February 2013

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