Buffel v Steenkamp and Others (1806/2021) [2021] ZAFSHC 245 (10 August 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 1806/2021

In the matter between:

ITUMELENG

ZACHARIA

BUFFEL APPLICANT

and

IZAK

JACOB STEENKAMP 1st

RESPONDENT

(In his capacity as the Master’s representative

In the deceased estate: Musho Lucas Buffel:

Estate no:1214/2014)

KELEBETSWE

VIVIAN MONGALE 2nd

RESPONDENT

THE

REGISTRAR OF

DEEDS, BLOEMFONTEIN 3rd

RESPONDENT

THE MASTER OF THE HIGH COURT,

FREE STATE DIVISION, BLOEMFONTEIN 4th

RESPONDENT

JUDGMENT BY: MOLITSOANE, J

HEARD ON: 5 AUGUST 2021

DELIVERED ON: 10 AUGUST 2021

[1] The applicant brought this application seeking the following relief:

1.1 That the agreement of sale entered into between the late Mush Luca Buffel (the deceased) and the Applicant, dated 2 April 2010, in terms of which the Applicant purchased the immovable known as Erf 388848, Mangaung, Bloemfontein District, measuring 319 square metres, General Plan L14/1993, held under Certificate of Registered Title T7961/1993(the property) from the deceased, be declared as a valid sale agreement;

1.2 That the First Respondent- be ordered and directed to take all steps necessary to ensure the successful registration and transfer of the property into the name of the Applicant; alternatively,

1.3 That the First Respondent be ordered and directed to sign, on behalf of the estate of the deceased, all documents necessary for the successful transfer and registration of the property into the name of the Applicant; further alternatively,

1.4 That in the event the First Respondent fails or refuses to comply with this order, that the Registrar of this Court or the Sheriff be authorised and directed to sign all documents necessary to cause the successful transfer and registration of the property into the name of the Applicant;

1.5 That the First Respondent be ordered to pay the costs of the application.

[2] The case for the Applicant is briefly as follows: The deceased was the uncle of the Applicant and the father of the Second Respondent. The deceased is the registered owner of the property aforementioned. It is the case for the Applicant that he took occupation of the property win 2010 after the deceased had evicted her (deceased’s) girlfriend from the property. The Applicant asserts that he funded the eviction.

[3] The Applicant alleges that in the same year,2010, he and the deceased entered into a written agreement in terms of which the deceased sold him the property for the sum of R35 000.The agreement was prepared by a firm of attorneys. The said agreement was signed on 2 April 2010 by the deceased, the Applicant and the witnesses in front of the attorney who prepared it. The purchase price was paid in full to the deceased. On 13 July 2011 deceased passed on before the property could be transferred and registered in the names of the Applicant.

[4] On the other hand the First Respondent contends the authenticity of the signature of the deceased on the written agreement. The First Respondent says that the Second Respondent immediately disputed the signature of the deceased on the agreement. Later the Second Respondent brought a copy of an affidavit in support of an application for eviction signed by the deceased in 2009. The signature according to both the First and Second Respondent on that affidavit differed from the one in the deed of sale. This prompted the First Respondent to send the signatures to a forensic specialist to conduct a handwriting examination between the signature on the affidavit and the signature on the written agreement. The handwriting expert concluded that there were no identifiable idiosyncratic similarities present between the two signatures and that significant inconsistencies exist between the signatures. The expert further concluded that the alleged agreement of sale was not produced by the author of the affidavit.

[5] The main issue in dispute is that the signature on the agreement of sale is not that of the deceased and consequently the First and Second Respondents deny the validity of the said agreement. It is the contention of the First Respondent that the Applicant should have foreseen a dispute of fact and not brought these proceedings by way of motion proceedings.

[6] It is apposite to deal with issue raised by the First Respondent concerning the dispute of fact. The Court in National Director of Public Prosecutions v Zuma noted that motion proceedings were designed for the resolutions of legal disputes based on common cause facts. Where final relief is sought in motion proceedings, the approach to determining the facts has been authoritatively set out as follows in Plascon –Evans Ltd v Van Riebeeck Paints (Pty) Ltd:

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such and order.”

In Wightman t/a JW Construction v Headfour (Pty)Ltd & Another the court said the following:

“[13] A real, genuine dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.”

[7] The Applicant seeks a final declaratory order. The pleadings reveal that on 28 August 2019 the Applicant’s attorneys of record requested confirmation from the First Respondent that the Applicant’s claim in respect of the sale of the house had been noted against the estate. In the letter, a request was further made to confirm that assistance in the transfer to the Applicant in terms of the sale agreement would be granted. On 22 October 2019 the First Respondent replied as follows: “It is our instruction that the contract submitted does not reflect the deceased persons signature on other documents signed by him.”

[8] On 11 June 2020 the First Respondent issued an application for the eviction of the Applicant from the property in the Bloemfontein Magistrate Court under case number 3973/2020. The First Respondent attached to the application an affidavit by a Forensic Practitioner in which the latter reiterated that she concluded that the deceased could not have signed the deed of sale which is the subject of this dispute.

[9] The pleadings as illustrated above show that as far back as 2019 the Applicant was aware that the signature on the deed of sale was disputed. It is clear from the proceedings in the Magistrate’s Court that the issue of the signature was seriously contested and the Applicant ought to have known that if he instituted the motion proceedings the issue of the signature would arise. Despite this knowledge, he persisted with motion proceedings.

[10] The Applicant does not seriously deal with the findings and conclusions of the Forensic Specialist. He accepts the expertise of this Practitioner as nowhere in his pleadings does he challenge it. With regard to the report itself, the only challenge to it appears as follows:

“The expert’s affidavit is contradictory as they state they compared an affidavit signed by the deceased which was signed in 2009 and the agreement of sale which was signed in 2019. The agreement was signed in 2010 and not in 2019 as stated in the expert witness statement as well as their report.”

In my view there is no contradiction. The essence of the finding and conclusion arrived is that the deceased did not sign the deed of sale was not attacked. What seems to be a ‘contradiction’ according to the Applicant relates to the alleged date of the report. In my view this may point to a typographical error as the deed of sale clearly indicate the date thereof as 2010.

[11] Counsel for the Applicant urged me to accept the evidence of the eye witnesses over that of the expert. The evidence of the witnesses relate to being present when the deed of sale was signed and also that the deceased actually sold the property to the Applicant. While I accept that at times eye witness account may be preferable to expertise evidence in other circumstances, it is my considered view that in the peculiar circumstances of this case, such an approach would not be correct.

[2] As pointed out above, the expertise of the witness as well as her report remains unchallenged. I can find no reason to reject or to prefer the eye witness account over it. Counsel for the Applicant, in his submissions, also conceded that the signatures on the affidavit and the one on the deed of sale appear to be different. What he urged me to find was that this apparent difference in the signatures, does not prove that the signature on the deed of sale was not made by the deceased. In my view this argument loses the essence of the attack on the course of action followed by Applicant to assert his claim. That there is a serious dispute of fact, is beyond question. If this is so, the Applicant should have proceeded by way of an action and not on notice of motion. This is fatal to his case.

[12] Counsel for the Applicant has urged me to exercise my discretion in terms of Uniform Rule 6(5)(g) and refer this matter for oral evidence if I found that there was a dispute of fact which could not be resolved on the affidavits. The Applicant knew as far back as October 2019 that the signature on the deed of sale was disputed. In the proceedings in the Magistrate court instituted in 2020 this issue arose again. In these proceedings of 2021 the same issue has reared its head once more. In my view it would not serve the interest of justice to refer this matter for oral evidence at this stage. Applicant’s claim must fail and there is no reason why costs should not follow the cause. I make the following order:

ORDER

1. The application is dismissed with costs.

P.E MOLITSOANE, J

On behalf of the Applicant: Adv. JJ Buys

Instructed by: Matlho Attorneys

BLOEMFONTEIN

On behalf of the 1st Respondent: Mr I Steenkamp

Instructed by: Steenkamp & Jansen Attorneys