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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

REPUBLIC  OF SOUTH AFRICA

IN THE  HIGH COURT  OF SOUTH AFRICA
GAUTENG  DIVISION, PRETORIA	

                  				   REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED  	                                                                                        
                                   DATE: 29 JULY 2016
                                                                          CASE NO: 28553/2016

In the matter between:

SIMON MAFRIKA	1st  APPLICANT

BETTIE MAFRIKA	2nd  APPLICANT

and

NTSOPILALANA  JOHANNES  MAGONGWA	1st  RESPONDENT

NOMADLAZI  BEAUTY MAGONGWA	2nd  RESPONDENT

THE  REGISTRAR  OF DEEDS PRETORIA	3rd  RESPONDENT

J U D G M E N T

MALI J

	2
[1]    The applicants who are married in community of property instituted an application for the transfer of immovable property by the first and the second respondent. The first  and the  second  respondent  are married in community of property. The immovable property is described in the deeds office as [ Erf 7..,  Rabie  Ridge  Township],  registration division IR, Gauteng (measuring 315 square metres and held in terms of title deed  no T6…]/1995)  (" the property").

[2]     The third respondent  is  a  party  to  the  action  by  virtue  of  the  relief sought by the applicants. The first respondent does not oppose the application.

[3]    The applicants' case is that they purchased the property from the first respondent during August 2005. It is not in dispute that on 16 August 2005 the first applicant made a payment of R86000.00 to the first respondent and that on 25 August 2005 the first applicant and the second respondent signed the affidavit. The affidavit was intended to perfect the agreement of sale. The applicants' further basis of the agreement of sale is the Power of Attorney to  pass transfer  signed by the first  and the second  respondent.

[4]      The second  respondent  is opposing  the application  and has raised   a point in limine. She has also filed a counterclaim for the eviction of the applicants  and  unlawful occupiers  of the property.

POINT  IN LIMINE

[5]     The  complaint  is  that  the  agreement  of  sale  relied  upon  by  the applicants does not comply with  the  conditions  of  Alienation  of Land Act  No 68 of  1981 ("the Act").  Section 2 of the Act provides;

"No alienation  of land  after  the commencement  of this section shall,  subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by  the parties  thereto  or by  their agents acting on  their  written authority."

[6]     As  alluded  above  the  applicant's  case  is  based  on  the  Power  of Attorney to pass transfer. It is not in dispute that the first and second respondent signed a power of attorney to effect transfer. The second respondent does not deny that it is indeed her signature  that  is appended in the power of attorney. She  however  states  that  she cannot remember  signing the  power of  attorney.  It is apposite  to refer to following  clause contained  in the  power of attorney;

"We, the undersigned, Ntsopilana Johannes  Magongwa  Identity Number. . . . . . and Nomadlazi Beauty Magongwa Identity Number. . . . .. Married in community of property to each other  (  the  Transferors) hereby  nominate,  constitute  and appoint:

CHRIS  NORTHWELL MATHEBULA

with power of substitution to be the true and lawful Attorneys and Agents  of  the  Transferors  in  the  name  ,  place  and  stead  of the

Transferors to appear before the REGISTRAR OF DEEDS  at PRETORIA and then and there to declare that  the  Transferors did  on 14 August  2007,  truly and lawfully sell  to (own emphasis):

SIMON MAFRIKA  [Identity Number  49…]"

[7]     Although the Power of attorney authorises the representative of the respondents to transfer the property sold by the first and the second respondent in the  past tense,  being  14 August  2007, the hurdle is that it is not signed  by the purchaser and the   seller.

[8]     The  second  respondent's  submission  is that  she  never  signed  the deed of sale albeit the first respondent signed same. It is  further submitted that there is a dispute about the signature in the Power of Attorney. It is not clearly stated what the dispute is about, neither it is stated that she is not the bearer of the signature in the  Power  of Attorney.

[9]      It  is  not  in  dispute  that  the  second  respondent  further  signed  an affidavit titled "AFFIDAVIT Transfer of- [ERF 7..] RABIE RIDGE TOWNSHIP' The predicament  pertaining  to  the  affidavit  is that  it  is not commissioned and also not signed  by the  witnesses.  Counsel for the second respondent submitted that even if the signature  in  the affidavit is hers because of  it  is  non-compliant  it  should  be disregarded.   Again  the  second   respondent  is  non-  committal  about

her signature, she does not state unequivocally that  she  did  not append  her signature.

[1O]   In  fact  the  second  respondent's  response  to  the  above  1s the following;

"I recall the First Respondent coming to my house in Limpopo several times. I did not however sign a deed of alienation and at  all times refused to sell my property. I note Annexures  "MAF16" to  "MAF19",  I do not recall signing those documents. Further as is clear from these documents is that there are no witnesses who signed the document and no commissioner of oaths that verified it was indeed myself who signed same".

[11]    Furthermore  there  are  glaring  similarities  in  the  signature  denied by the second respondent appended in the power of attorney with the signature appended to her two affidavits at page 88 and 108 of the paginated papers. Counsel for the second respondent could not take further the submissions regarding the similarities of  the signature alluded above. He only stated that the second  respondent  is a pensioner and not wealthy to employ the services of a hand writing expert.

[12]   Counsel  for  the  applicant  further  submitted  that  the second respondent's signature appended in the  power  of  attorney  supports the   submission  that  there  was   intention   and  decision  to   sell   the

property. It is opportunistic of her to dispute the sale of the property relying on  non- commissioned  affidavits  bearing  her signature.

[13]      It is upon the above  submissions  that  it has been submitted  on  behalf of the applicants that the provisions of section 2(1) of the Act must be read with sections 15 (2)(a) and 15 (9) (a) of the Matrimonial Property Act,  88 of  1984 ("the Matrimonial Property Act")

[14]    In terms  of section  15(2)(a) of the  Matrimonial  Property Act  a spouse who is married in community of property shall not without the written consent of the other spouse "alienate, mortgage, burden with a servitude or confer any real right in any  immovable  property  forming part of the joint  estate."

[15]     However,  section   15(9(a)  of  the  Matrimonial  Property  Act   provides that:
"(9) When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section  16 (2), and-
(a) that person does not know and cannot reasonably know that the transaction is being entered into  contrary  to  those  provisions  or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms  of  the  said subsection (2) or (3), or while the power concerned  of the  spouse has not been suspended,  as the case may   be;"

[16]    These provisions  seek to regulate marriages  in community  of  property after the abolition of marital power . They are  intended  to  protect a bona fide third party who  enters  into a transaction  with  a person  who is  married  in community  of  property  if the  third  party  does  not know,

and cannot reasonably be expected to know that the person's spouse had to consent to the transaction or that  the  necessary  consent was not obtained.

[17]     For a purchaser, for his or her  interest  to  trump  those  of  innocent spouse, must prove that he or she did not know and could not have reasonably know and could not have known that the consent of the innocent spouse was lacking. If this is proved,  then  the  innocent spouse is deemed to have consented and his or  her  remedy  for any loss suffered as a result is an adjustment  in his or  her favour  when ( and if) the joint  estate is divided.

[18]      The question is whether  in  the  present  matter  the  facts  support the above provisions. The undisputed sequence  of events  is that the deed of sale was first signed by the applicants,  and  by the first respondent who at the time was residing in  Gauteng.  He then  took  the  deed of sale to the second respondent to Limpopo in their other residence. Subsequent to that, the Power of Attorney  referred  to  above  was signed by both respondents. From the above the applicants could not have known that the first respondent did not have the consent of the second respondent.

[19]   Above, I have alluded to the second respondent's unsatisfactory explanation which rather suggests  her opportunism.  This  is because o at paragraph 28. 3 ,28.4 ,28.5 and 28.6 of the second respondent's answering  affidavit  she states the following

"28.3 My husband and I are rural people and the  Applicants  are wealthy urban people. I respectfully submit that the Applicants unduly influenced my husband to accept an amount of R86000. 00 having him think that same was fair value for the  property.

28.4	I attach hereto as Annexure "NBM2" a  valuation  conducted  by my attorney of record produced by Lightstone. I pause to mention that this valuation report, is a comprehensive  report  that helps determine the fair market value of residential property in South Africa.

28.5	In terms of the report the estimated value of the property is R470

000.00 while the expected high value of the property  is R630   000.00.

28.6 I am advised that since  the  Applicants  made  payment  of R86000. 00 to my husband in terms of unenforceable, invalid and void contract, my husband is required  to tender repayments  of the  amount to the Applicant . . . .. ""

[20]      Some of the above submissions  made by the second  respondents   are just brave and bald statements. The  first  respondent,  her  husband who is supposedly influenced by wealthy urban  people  does  not oppose the application. Secondly the issue of the valuation of the property disregards the undisputed fact that the  payment  of  the property was made on 16 August 2005,  eleven  years  ago. The valuation which appears to  be the  trigger  of  opportunism  was made on  15 July 2015.

[21]    Furthermore  the  second  respondent  did  not  dispute   the  first applicant's  submission  at page  15 of the  paginated  record, paragraph
10. The submission  is as follows:

"10.1 On or about, our attorney of  record,  (sic)  Mr Ntewukeni contacted the 1st Respondent and he informed him that as far as  he was concerned he signed all the documents for us as he has travelled to Gauteng two times to sign the transfer documents  and further  that we have been to his homestead and his wife signed the documents and therefore they were not prepared  to sign any further   documents."

[22]       From the above  it is apparent that according to the first  respondent  he and his wife had completed the process to effect the transfer of the property. Therefore the applicants could not  have  reasonably known that the first respondent did not have consent from the second respondent to alienate the property. Furthermore  the  second respondent had at no time challenged the validity of the deed of alienation.

[23]       Having regard to the  above  it is deemed  that  the  second  respondent have consented to the alienation of the  property. The applicants  who are bona fide third parties are entitled to the protection afforded by section 15 (9) (a) of the  Matrimonial  Property Act, therefore  the  deed of alienation  is accepted as valid. The point  in limine must  fail.

[24]	In the result I make the following order;

24.1	The agreement of sale between the applicants and first and the second respondents is valid and enforceable;

24.2	The first and second respondents are compelled to do all things necessary to comply with the agreement and to  sign  all  the documents necessary in order to give effect of the transfer of the property in the names of the first and second applicant.

24.3	In the event that the first and second respondents fail to take the necessary steps referred to in paragraph 23.2  above,  the  Sheriff  of the above court is authorized to sign any documents and to take such steps on behalf of the applicants as may be necessary to give effect to this order.

24.4	The first and second respondents are prohibited from alienating, disposing of and transferring the property to any third party.

24.5	

The second respondent  is ordered  to  pay costs  including costs of counsel.

N.P. MALI JUDGE OF THE HIGH COURT

Counsel for the Applicants: Instructed by:

Counsel for the second respondent: Instructed by:

Date of Hearing: Date of Judgment:

Adv.  H. H. Cowley
N C NTEWUKENI ATTORNEYS

Adv. Y van Aartsen N O A KINSTLER

20 April 2016
29 July 2016