Opposed Application
MAVANGIRA J: In 1999 the
applicant herein entered into an agreement of sale in terms of which
he purchased an immovable property from the estate of the late
Johanna Maria Fransisca Logan as represented by the executrix
testamentary of the estate.
The immovable property, described as Stand 382 Good Hope Township of
Subdivision B of Good Hope, was transferred to the applicant in April
2007 by deed of transfer number 1597/2007.
On or about 1 October 2006 one Tsungirai Musenha and the first
respondent herein filed an application as co-applicants, in the
magistrates court in Case No.12060/06. They cited Robert Adrian
Campbell-Logan (the second respondent herein), estate late Maria
Johanna Campbell-Logan and the Registrar of Deeds (the fourth
respondent herein) as the first, second and third respondents
respectively.
They contended therein that the second respondent herein had sold to
them and they had purchased Stands Numbers 412 and 382.
They further contended that the second respondent herein was avoiding
them then for the purpose of passing transfer to them of the said
properties.
On or about 5 October 2006 a rule nisi was granted by the
magistrates' court in the following terms:
“A Rule Nisi be and is hereby
issued returnable to this honourable court on the ……………..
day of ………….. 2006 calling upon the first and second
respondents to show cause if any why? (sic)
1. first, second and third respondents and all those acting through
them should not be barred from transferring to anyone other than
first and second applicants Stand Numbers 412 and 382 respectively
being subdivisions of the remainder of subdivision B of Good Hope
held under Deed Number 6180/95. (sic)
2. first, second and third respondents should not be ordered to
effect transfer of Stand 412 and 382 to first and second applicants
Stand Numbers 412 and 382 respectively being subdivisions of the
remainder of subdivision B of Good Hope held under Deed Number
6180/95. (sic)
3. first, second and third respondents and all those acting through
them should not be barred from disposing first and second applicants
in any way of their occupation of Stand numbers 412 and 382
respectively. (sic)
4. first respondent should not be ordered to pay costs of this
application. (sic)
INTERIM RELIEF:
1. Pending the return date all respondents and all those acting
through them be and are hereby interdicted from disposing or
transferring to anyone Stand Numbers 412 and 382 respectively being
subdivisions of the remainder of subdivision B of Good Hope held
under Deed Number 6180/95.”
On 8 November 2006 the magistrate granted default judgment in the
same matter for an “interdict and compelling order” in favour of
the applicants therein.
On 29 November 2006 the sixth respondent issued Letters of
Administration appointing the third respondent as executor dative to
administer the estate of the late Maria Johanna Fransisca
Campbell-Logan, for the sole purpose of effecting transfer of “a
certain piece of land situated in the District of Salisbury being a
remainder of subdivision B of Good Hope being Stand Number 382
measuring 2200 square metres into the name of Cosma Chiangwa.”
On 4 July 2007 the immovable property was transferred into the name
of Cosma Chiangwa, the first respondent herein by deed of transfer
4079/2007.
The applicant now applies for an order in the following terms:
“1. That the sale to the first
respondent by the second respondent of Stand 382 Good Hope is null
and void. (sic)
2. That the registration of Stand
382 of Good Hope Township of Subdivision B of Good Hope into the name
of first respondent is null and void. (sic)
3. That the appointment of the
third respondent as Executor Dative of the estate of the late Maria
Johanna Fransisca Campbell-Logan is null and void.
4. That the applicant is the sole
lawful registered owner of Stand 382 Good Hope Township of
Subdivision B of Good Hope.
5. That the fourth respondent
shall, within 3 days of service of this Order upon him, delete the
name of the first respondent from the name of the applicant as the
registered owner of Stand 382 Good Hope Township of subdivision B of
Good Hope. (sic)
6. That the first, second, third
and fifth respondents shall pay costs of these proceedings jointly
and severally, the one paying the others to be absolved.”
In the main, the applicant contends that the appointment by the sixth
respondent of the third respondent as the executor dative of the
estate during the lifetime of the executrix testamentary and during a
period of time when the executrix testamentary was still holding
office and was not incapacitated is not valid in law.
He further contends that when the second respondent sold Stand 382 to
the first respondent, he (the second respondent had no title to pass
and that the sale by the second respondent was done in the second
respondent's personal capacity and was also done without authority.
He also contends that when the second respondent sold the property
(to the first respondent) he knew that it had already been sold to
the applicant as he had co-signed the agreement of sale between the
applicant and the executrix testamentary.
It is also contended by the applicant that the fourth respondent
registered the property into the name of the first respondent without
checking his register.
Furthermore, the fifth respondent, who was the conveyancer of the
property into the first respondent's name did not conduct any
checks as to title to the property before drafting and lodging
conveyancing papers with the Deeds Registry. If he had exercised care
he would have discovered that the immovable property belonged to the
applicant as it had already been registered into the applicant's
name more than two months earlier.
The applicant further contends that the position stated by the
executrix testamentary in the letter of 1 September 2007 is the
correct position at law.
The letter raised with the sixth respondent the invalidity of the
appointment of the executor dative as it was done when the executrix
testamentary had not been removed from the office by a competent
court or judge.
The contention then was that the sixth respondent acted without
authority when he appointed the third respondent as executor dative
and consequently all acts done by the executor dative in relation to
the transfer of the property is of no force or effect.
The property was thus illegally transferred into the name of the
first respondent.
He also contends that the third respondent ought to have known that
the sale by the second respondent to Tsungirai Musenha and the first
respondent was defective.
It is the applicant's contention that there is sufficient
justification for this court to grant him the relief that he seeks.
The respondents on the other hand contend that the application ought
not to succeed for various reasons.
Firstly, that the applicant is alleging fraud, on the part of the
persons who prepared and authored the documents which are being
challenged and that such persons would need to be cross examined in
trial proceedings.
They contend, secondly, that there are disputes of fact which cannot
be resolved on the papers, such disputes being in relation to how two
agreements of sale could have been concluded for the same property
with the fourth respondent. These, issues it is contended, cannot be
adequately addressed in affidavits.
The third reason stated is that the applicant has not challenged or
caused the suspension of the “compellation orders authorising
transfer of the property in issue emanating from Case No. 1206/06
granted by the Magistrates Court.”
They contend that the court therein decided that the property
belonged to the first respondent and until that order is suspended,
this court cannot hear the applicant's case. The fourth reason
stated is that the applicant has no real rights over Stand 382 Good
Hope Township of subdivision B of Good Hope and that the Registrar of
Deeds has confirmed by letter that the property belongs to the first
respondent.
It is contended that the applicant's supposed title deed is not a
valid title deed and does not confer any rights on him. Consequently,
the applicant cannot challenge the registration of a property which
he does not own. They contend that there is no double registration of
the immovable property in issue.
The fifth reason stated is that the applicants purported agreement of
sale dated 1999 with the executrix testamentary is invalid because
the executrix testamentary did not then have authority from the sixth
respondent to sell the property, such authority only having been
granted by the sixth respondent on 27 February 2006.
The applicant has in any event sued the wrong party as he should sue
the estate from which his rights emanate in terms of the agreement of
sale.
Finally, it is stated that the relief prayed for by the applicant is
impracticable and unprocedural as he may not sue to remove an
executor or challenge the Master's decision in these proceedings.
In addition to the above the first respondent states that he has been
in occupation of the property since July 1998 and has built a two
bedroomed house thereon. He has also been paying all utility bills
and rates. Even before transfer of the property to him, he used to
pay the bills.
The first respondent also says that at the time of the alleged sale
to the applicant he was already in occupation of the property and if
the applicant had been diligent he could easily have found that out.
Furthermore, the second respondent could sell the property to him as
he was the beneficiary and he had full authority to do so.
The respondents thus contend that the application should be dismissed
with costs on the higher scale.
The papers before this court reveal the following.
The agreement of sale in terms of which the applicant purchased the
property in issue was executed in 1999. The seller of the property in
terms of that agreement being the estate late Johanna Maria Fransisca
Logan was represented therein by the executrix testamentary of the
estate.
The executrix testamentary was
granted authority in terms of section 120 of the Administration of
Estates Act, [Cap
6:01] to sell the
property otherwise than by public auction. The date of issue of such
authority is unclear as the only discernible part reads “2005”.
The papers also show that on 29 November 2006 letters of
administration were issued by the sixth respondent in terms of which
the third respondent was appointed as the executer dative of the same
estate and an endorsement was made therein that the letters were
issued for the sole purpose of effecting transfer of the same
property to the first respondent.
It is also shown by the papers that there are two deeds of transfer
in favour of the applicant and the first respondent respectively, in
respect of the same property being Stand 382 Good Hope Township of
Subdivision B of Good Hope.
The only difference between the two deeds appears to be in relation
to the extent of the property.
Deed of Transfer 1597/2007 in favour of the applicant records the
extent of the property as 1998 square meters whilst deed of transfer
4079/2007 in favour of the first respondent records the extent of the
property as 2200 square metres.
It is a fact borne out by the papers therefore, that there are two
deeds of transfer in favour of two different persons in respect of
the same property.
The first respondent has sought
to rely, inter
alia, on the letter
written on 3 April 2008 by the Assistant Registrar of Deeds addressed
to the third respondent and which reads in part:
“Ref:
Deed Number 1597/2007 and 4079/2007
Reference is made to your letter dated 28 March 2008 where you wanted
this office to clarify the position of Deed of Transfer 1597/2007 and
4079/2007. (sic)
Our investigation has shown that both deeds refer to Stand 382 Good
Hope Township of Subdivision B of Good Hope. There are two records in
our database. One in the name of David Katerere under transfer
p11…1597/2007, dated 2 April 2007, and the other in names of Cosma
Chianwa under transfer 4079/2007 dated 4/7/2007. (sic)
On further investigation we noted that Deed of Transfer 4079/2007 was
deducted first at the surveyor General's office and 1597/2007 was
rejected because the stand was already registered.
It is not clear why deed 4079/2007 was deducted first at the surveyor
General. But this is not unusual since work is allocated to various
examiners whose performances differ. What it now means is that Deed
4079/2007 has completed all the processes while transfer 1597/2007
has not, making it invalid. (sic)
However ownership of the property
and cancellation of invalid deed has to be done by the courts in line
with section 8 of the Deeds Registries Act [Cap
20:05].”
At the hearing of this matter Mr.
Mandizha
submitted that the appointment of the executor dative was for the
sole purpose of transferring Stand 412 into Tsungirai Musenha's
name.
He submitted that it was not clear how Stand 382 was transferred into
the first respondent's name without letters of administration
having been issued for that purpose.
He submitted that the letters of
administration in relation to Stand 382 were issued to the agent of
the executrix testamentary and the third respondent was not such an
agent. Yet, the transfer of Stand 382 into the first respondent's
name was based inter
alia, on
the papers prepared and signed by the third respondent as executor
dative and the fifth respondent as conveyancer.
This, he submitted, must be viewed in conjunction with the fact that
the fourth respondent registered the property into the first
respondent's name notwithstanding the fact that the applicant's
name appeared on the register as the registered owner of that
property.
At p89 of the papers appears the letters appointing third respondent
as executor dative of the estate and for the sole purpose of
transferring Stand 382 into first respondent's name.
It was also submitted that the letter written by the Registrar of
Deeds indicating that the applicant's deed is invalid ought not to
be admitted as evidence as the registrar is one of the respondents
and cannot be viewed as being entirely objective.
Furthermore, that in any event, declaring a deed invalid is the
prerogative of the court and the registrar was thus usurping the
court's power when he wrote the letter.
Regarding the case of
X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd
2000 (2) ZLR 348 (S)
which was cited in the respondents' heads of argument, Mr. Mandizha
submitted that what is prohibited by law is an agreement for the
transfer of ownership before the granting of a subdivision permit. He
submitted that such agreement is not proscribed by the Deeds
Registries Act and that the Regional, Town and country Planning Act
has no relevance in matters of registration of title as title as
title does not flow from the agreement but is a product of the powers
conferred on the Registrar of Deeds and is regulated by the Deeds
Registries Act.
The provisions of the Deeds Registries Act are not affected by the
Regional, Town and Country Planning Act.
Mr. Mandizha
submitted that s5(b) of the Deeds Registries Act requires the
registrar to examine all deeds or other documents submitted to him
for execution or registration, and after examination reject any such
deed or other such document the execution or registration of which is
not permitted by this Act or by other law, or to the execution or
registration of which any other valid objection exists.
He submitted that there is no requirement in this provision for the
contract of sale of a piece of land to be submitted to the registrar
together with the deed for examination. Neither does it require the
Registrar not to register transfer of a property the sale agreement
of which contains a suspensive condition.
He submitted that the Deeds registries Act does not require the
registrar to do so, and the registrar should not, concern himself
with the agreement of sale as it is not his duty to do so.
It was further submitted that in any event, there is no
counter-application before this court for the setting aside of the
Deed of Transfer registered in favour of the applicant. This, it was
submitted, must be taken as an indication that the first respondent
knew or must have known that his title was defective.
It was also Mr. Mandizha's
submission that the only question that this court must concern itself
with is whose property is Stand 382.
He submitted that the answer to this question is to be found in s10
of the Deeds Registries Act which provides that once real rights have
been registered in a person's name he shall be deemed to be the
owner of the property.
He submitted that the use of the word “deemed” in the said
section gives room for any party to challenge the ownership conferred
on the person registered in the Deeds Registries office.
Furthermore, that in
casu,
the first respondent
has opted to use a shield instead of an offensive weapon as he has
resorted to merely defending himself without seeking to assert his
own title.
He also submitted that in terms of s11 of the same Act transfers of
land should follow the sequence of registration. Thus whenever
ownership is being changed, the registered owner must first divest
himself of the ownership of the property or the court should divest
him of it and then declare as owner the person who has challenged
such title.
On this basis, it was submitted, it is very clear that the first
respondent's deed is unlawful and therefore null and void as his
registration as owner was subsequent to that of the applicant, over
the same property.
It was submitted that this is sufficient justification for this court
to declare the registration of the first respondent as owner to be
null and void.
It was submitted that while the transfer to the first respondent
purported to be transfer from the estate of the late Joanna Maria
Fransisca Campbell-Logan, the property was at the time no longer a
part of the deceased estate because it had already been transferred
to applicant.
Furthermore, s11(1)(b) of the same Act provides that it shall not be
lawful to depart from any such sequence in recording in any Deeds
registry any change in the ownership in such land or of such real
right unless the registrar is satisfied that the circumstances are
exceptional and has consented to such departure.
Mr. Mandizha's
final submission was that the property was sold by the heir, that is
the second respondent, at a time when the property had not yet
resided in the heir and thus he had no power whatsoever to deal with
the property as he did.
He submitted that while the sale of another person's property is
not unlawful, transfer or delivery of that property is unlawful and
is null and void.
Mr. Uriri
on the other hand made submissions to the following effect.
The submissions by Mr. Mandizha
about the inapplicability of the Regional, Town and Country Planning
Act have already been considered and rejected by the Supreme Court in
the X-Trend-A-Home case.
In casu,
on deed of transfer
1597/07 the causa
is given as a sale. He
also highlighted that both the Deeds Registries Act and the
regulations made in terms thereof require that each deed of transfer
must on the face of it disclose the cause of the transfer and that
this is what in conveyancing terms is referred to as the causa
clause.
Such causa
must be valid
otherwise the resultant deed if based on an invalid causa
is necessarily
invalid.
The Deeds Registries Act and the
Regional, Town and Country Planning Act are complementary and a causa
which is invalid by
reason of breach of the Regional, Town and Country Planning Act is
necessarily invalid for purposes of the Deeds Registries Act. He
quoted the famous “you can not put something on nothing and expect
it to stay there” statement by Lord Denning in Macfoy
v United Africa Co Ltd
[1961] 3 ALL ER 1169
(PC) at 1121.
Mr. Uriri submitted that the
applicant is in fact seeking to enforce an illegal contract and that
that is another reason why the application must fail as the maxim ex
turpi causa
applies and cannot be
relaxed in the circumstances.
Mr. Uriri
also submitted that
the applicant bases his case on facts which are in fact in dispute.
The applicant claims that his title was registered first whereas it
is clear from the papers that the first respondent's deed of
transfer has gone through all the processes and the applicant's has
not.
In this regard reliance was being placed on the letter from the
fourth respondent's office already referred to earlier in this
judgment. He submitted that this dispute of fact cannot be resolved
on the papers.
Furthermore that this is a dispute which should have been foreseen at
the outset as the applicant was aware at the time of instituting this
application that the first respondent was registered in terms of deed
of transfer 4079/07 as the owner of the same property.
Mr. Uriri
submitted that before
instituting this application the applicant was aware that limited
letters of administration had been issued to the third respondent by
the sixth respondent for purposes of transferring the property in
issue from the estate. Such letters of administration can only be set
aside in terms of the procedure stipulated in the Administration of
Estates Act, [Cap
6:01].
As that has not been done the relief sought by the applicant in
paragraph 3 of his draft order cannot be granted.
He further submitted that the limited letters of administration were
issued pursuant to a compelling order issued by the magistrates'
court. As that order has not been set aside and cannot be set aside
in these proceedings, the applicant would need first to seek a
nullification of that order if so advised.
He submitted that from the papers it appears that having become aware
of the order, the applicant neither sought rescission of it nor a
declaratory order to the effect that it was obtained by fraud, if
that be his contention.
He submitted the instant proceedings are certainly not the process by
which the magistrate's order could be rescinded or set aside.
It was submitted that in view of the applicant's persistent denial
that there are grave disputes of fact in this matter when there
clearly are, the applicant cannot now ask the court to refer the
matter for the hearing of evidence as the applicant clearly ought to
have proceeded by way of action in the first place.
He submitted that there is no justification for interference with the
first respondent's registration as owner of the property and that
for all the reasons stated above the application must be dismissed
with costs on the scale stated earlier in this judgment.
Section 14 of the Deeds Registries Act provides:
“Subject to this Act or any
other law -
(a) the ownership of land may be conveyed from one person to another
only by means of a deed of transfer executed or attested by a
registrar.”
Section 8 of the Deeds Registries Act which is referred to in the
above quoted letter provides as follows:
“(1) Save as is otherwise
provided in this Act or in any other enactment, no registered deed of
grant, deed of transfer, or conveying title to land, or any real
right in land other than a mortgage bond, and no cession of any
registered bond not made as security, shall be cancelled by a
registrar except upon an order of court.”
The letter by the Assistant Registrar of Deeds does not constitute
cancellation of the Deed of Transfer in favour of the applicant.
In my view, it expresses the author's opinion on the matter.
In any event there is no application or counter application before
this court for the cancellation of the said deed of transfer.
It does not, in my view, support the first respondent's contention
that there is no double registration of the property. The fact is
that there is double registration of the property in issue; the one
registration being in favour of the applicant and effected on the 2
April 2007 whilst the other registration is in favour of the first
respondent and was effected on 4 July 2007, some three months later.
Section 10 of the Deeds of Registries Act provides -
“(1) Deeds executed or attested
by a registrar shall be deemed to be registered upon the affixing of
the registrar's signature thereto…”
Thereafter section 11 provides:
“(1) Save as otherwise provided
in this Act or as directed by the court -
(a) transfers of land and
cessions of real rights therein shall follow the sequence of the
successive transactions in pursuance of which they are made…”
The fourth respondent is of the opinion that the deed of transfer in
favour of the applicant is invalid for the reasons stated in the
letter from his office which letter has already been quoted above.
This aspect will be dealt with later in this judgment.
The respondents represented
herein raised the point that the applicant's case is premised on an
agreement of sale which is void ab
initio for the
reason that the sale was conditional upon the grant of a subdivision
permit in terms of the Town and Country Planning Act, [Cap
29:12].
It was submitted that the said
Act specifically proscribes such agreements and that both the Supreme
Court and the High Court have held such agreements are void ab
initio.
It was submitted that it follows therefore, that nothing can be
founded thereon and the applicant cannot seek to enforce that which
he does not have.
In support of these submissions
the following cases were cited inter
alia: Macfoy
v United Africa Co Ltd
[1961] 3 ER 1169 (PC) at 1121 where Lord Denning stated:
“If an act is void, then it is
in law a nullity. It is not only bad, but incurably bad. There is no
need for an order of the court to set it aside. It as automatically
null and void without more ado, although it is sometimes convenient
to have the court declare it to be so. And every proceeding which is
founded on it is also bad and incurably bad. You cannot put something
on nothing and expect it to stay there. It will collapse.”
In Muchakata
v Netherburn Mine
1996 (1) ZLR 153 Korsah JA stated:
“If the order was void ab
initio it was void
at all times and for all purposes. It does not matter when and by
whom the issue of its validity is raised; nothing can depend on it.”
In X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000
(2) ZLR 348 (S) McNally JA having revisited the history of s39 of the
regional, Town and Country Planning Act sated at 355 A-D:
“The agreement with which we
are concerned is clearly 'an agreement for the change of ownership'
of the unsubdivided portion of a stand. What else could it be for?
Whether the change of ownership is to take place on signing, or later
on an agreed date, or when a suspensive condition is fulfilled, is
unimportant.
It is the agreement itself which is prohibited.
The evil which the statute is designed to prevent is clear.
Development planning is the function of planning authorities, and it
is undesirable that such authorities should have their hands forced
by developers who say 'but I have already entered into conditional
agreements; major developments have taken place; large sums of money
have been spent. You can't possibly now refuse to confirm my
unofficial subdivision or development.'”
I will shortly deal with this submission.
The substantive part of the Master's report (the sixth respondent)
states as follows:
“The estate of the late Maria
Johanna Francisca Logan who died testate is registered with me under
DR1617/98 and Brenda Carol Leeper of Veritas Executor (Private)
Limited as the appointed executrix testamentary.
I also confirm that my office
authorised the sale of Stand No.382 Good Hope Township in terms of
Section 120 of the Administration of Estates Act [Cap
6:01].
My office unaware of the double sale and in compliance with the court
order under Case No.12060/06 consented to the transfer of the
disputed property in favour of the first respondent.
According to information on file there appear to be material disputes
which needs (sic) to be determined so as to establish which between
the two sales is valid and legal.”
In my view, this report does not detract from the facts which are
established by the papers.
The following are the facts which emerge from the papers and upon
which this matter will be determined.
Firstly, the applicant purchased the property in issue from the
estate as represented by the executrix testamentary. The first
respondent on the other hand purchased the same property purportedly
from the same estate but in his case the estate was represented by
the executor dative.
It is an undisputed fact that the executor dative was appointed to
the office while the executrix testamentary was still alive, holding
office, not incapacitated and still sane. Neither had the executrix
testamentary been removed from office.
Secondly, the applicant's agreement of sale preceded that of the
first respondent.
thirdly, it is also clear from the papers that the property was
registered into the applicant's name on 2 April 2007 by deed of
transfer 1597/2007 while the transfer to the first respondent was
done 3 (three) months later on 4 July 2007 by deed of transfer
4079/2007.
The relevant law applicable to the instant matter with particular
regard to the registration of real rights as provided in the
following sections of the Deeds Registries Act is:
“10
When registration takes place
(1)
Deeds
executed or attested by a registrar shall be deemed to be registered
upon the affixing of the registrar's signature thereto:
Provided
that no such deed which is one of a batch of interdependent deeds,
intended for registration together, shall be deemed to be registered
until all the deeds of the batch have been signed by the registrar.
(2)
If by inadvertence the registrar's signature has not been affixed
to a deed at the time at which the signature should have been affixed
in the ordinary course, the registrar may affix his signature thereto
when the omission is discovered, and the deed shall thereupon be
deemed to have been registered at the time at which the signature
should have been affixed.
(3)
All endorsements or entries made on title deeds or in registers in
connexion with the registration of any deed executed or attested by a
registrar shall be deemed to have been effected simultaneously with
the registration of such deed, although in fact they may have been
made subsequent thereto.” (emphasis added)
Section
11 then provides:
“11
Deeds to follow sequence of their relative causes
(1)
Save as otherwise provided in this Act or as directed by the court —
(a)
transfers
of land and
cessions of real rights therein shall
follow the sequence of the successive transactions in pursuance of
which they are made,
and if made in pursuance of testamentary disposition or intestate
succession they shall follow the sequence in which the right to
ownership or other real right in the land accrued to the persons
successively becoming vested with such right;
(b)
it
shall not be lawful to depart from any such sequence in recording in
any deeds registry any change in the ownership in such land or of
such real right unless the registrar is satisfied that the
circumstances are exceptional and has consented to such departure:
Provided
that — ………”. (emphasis added)
Section
14 provides:
“14
How real rights shall be transferred
Subject
to this Act or any other law —
(a)
the
ownership of land may be conveyed from one person to another only by
means of a deed of transfer executed or attested by a registrar;
(b)
other real rights in land may be conveyed from one person to another
only by means of a deed of cession attested by a notary public and
registered by a registrar:
Provided
that attestation by a notary public shall not be necessary in respect
of the conveyance of real rights acquired under a mortgage bond.”
(emphasis added)
On a perusal of s10, it follows therefore that when the registrar
affixed his signature to the deed of transfer in favour of the
applicant on 2 April 2007, the deed was with effect from that date
deemed to be registered.
Furthermore, and on a perusal of s14, ownership was conveyed from the
estate of the late Maria Johanna Francisca Campbell-Logan to the
applicant. Thus the applicant became or was henceforth deemed to be
the owner and the property and no longer formed part of the deceased
estate.
It therefore follows that when in deed of transfer 4079/2007 on 4
July 2007, it was purported to convey ownership of the property from
the estate to the first respondent, the estate at that stage was no
longer the owner thereof and it thus had no rights to transfer to the
first respondent.
The agreement of sale purportedly in favour of the first respondent
cannot therefore be valid.
In any event, the third respondent having been appointed as executor
dative whilst the executrix testamentary was still alive, holding
office, not incapacitated and still sane, was improperly appointed.
The deceased had left a will in which the executrix testamentary was
appointed. The sixth respondent was thus not dealing with an
intestate estate.
The third respondent's appointment as executor dative was in the
circumstances irregular and any acts carried out by him in the name
of the estate would thus be of no legal consequence.
According to the affidavit placed before the magistrate in 12060/06,
the second respondent, who is the heir to the deceased estate, sold
the property in issue to the first respondent.
It thus appears that the second respondent purported to sell the
property before the property had vested in him; hence arises the
illegality and nullity of the purported sale to the second
respondent.
Thus, both the agreement of sale and the deed of transfer in favour
of the first respondent are in the circumstances null and void.
None of the arguments raised by the first respondent as detailed
earlier in this judgment can be of any avail to the first respondent
in the face of the above stated and established facts.
It would appear to me that the issue of whether or not the provisions
of the Regional, Town and Country Planning Act are applicable and if
so with what effect, cannot be of any avail to the respondents in the
circumstances of this case.
Neither can it be the basis for this court in these proceedings, to
declare invalid the agreement of sale in favour of the applicant.
That agreement has not been subjected to scrutiny by this court.
The fact is that the applicant is currently registered as the owner
of the property and there is no basis for the court, in these
proceedings, to deny the relief sought by the applicant. The first
respondent cannot herein ask the court to declare the agreement
invalid.
The submission that the agreement of sale in favour of the applicant
was subject to a suspensive condition based on a proposed or desired
subdivision of the main property and therefore illegal, has been the
mainstay of the first respondent's stance.
There is no application before this court challenging or impugning
the said agreement of sale.
Thus the dicta quoted from the
X-trend-A-Home
in support of the
first defendant's case are not of any relevance in the
circumstances of this matter.
The rule nisi
in terms of which the
Magistrates' Court granted in favour of the first respondent and
another interim relief in the form of an interdict barring the
disposal or transfer of the property in issue has also been heavily
relied on by the first respondent. However a perusal of the rule nisi
reveals that no return
day was endorsed.
Theoretically, therefore, even though the interdict was granted as
interim relief, it is in effect for an indefinite period. That would
be unconscionable and could not certainly have been the intention of
the magistrates' court.
In any event the applicant was not a party to the proceedings in that
matter.
Furthermore, as correctly pointed out by the applicant, the
magistrates' court did not authorise an illegal transfer of the
property.
The purported transfer to the first respondent was invalid as already
discussed above. On the other hand the prior registration of the
applicant's ownership in the deeds registry is the strength of or
fortifies the applicant's case.
It appears to me that there is no material dispute of fact to justify
either the dismissal of the applicant's application or to refer it
to trial.
Although the deed of transfer in favour of the applicant was
registered first, the fourth respondent's opinion is that the deed
is invalid for the reasons stated in the letter from his office
already quoted above.
It would appear to me that this can only be viewed as the registrar's
opinion and not a statement or declaration of the legal position.
I am fortified in this assessment by the provisions of s8(1) of the
Act already quoted above, in terms of which any deed of transfer
shall not be cancelled by a registrar except upon an order of court.
There has been no order of court which has cancelled or authorised
the cancellation of the applicant's deed of transfer.
The applicant has established justification for the granting of the
order which he seeks and he must therefore succeed. Costs will follow
the cause. For the above reasons the following is the order of this
court.
IT IS ORDERED:
1. That the sale to the first
respondent by the second respondent of Stand 382 Good Hope Township
of Subdivision B of Good Hope is null and void.
2. That the registration of Stand
382 Good Hope Township of Subdivision B of Good Hope into the name of
the first respondent is null and void.
3. That the appointment of the
third respondent as executor dative of the estate of the late Maria
Johanna Fransisca Campbell-Logan is null and void.
4. That the applicant is the sole
registered owner of Stand 382 Good Hope Township of Subdivision B of
Good Hope.
5. That the fourth respondent
shall within 3 (three) days of service of this order upon him, delete
the name of the first respondent from the deeds register and retain
the name of the applicant as the registered owner of Stand 382 Good
Hope Township of Subdivision B of Good Hope.
6. That the first, second, third
and fifth respondents shall pay the costs of these proceedings
jointly and severally, the one paying the others to be absolved.
Chigwanda Legal Practitioners,
applicant's legal practitioners
Chivhinge & Company,
first, third and fifth respondents legal practitioners
