Dookie and Another v Singh and Another (2658/07) [2008] ZAKZHC 32 (8 February 2008)

IN THE HIGH COURT

OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

2658/07

CHANDIKA DOOKIE APPLICANT

versus

SABITH SINGH FIRST RESPONDENT

REGISTRAR OF DEEDS SECOND RESPONDENT

RESERVED

JUDGMENT

Delivered on: 8 February 2008

NTSHANGASE, J

[1] This is an application in which, “pending the finalisation of an action for the rectification of the deed of sale” an order is sought in the following terms:

“1.1 That first respondent be interdicted and restrained from disposing of or encumbering the immovable property described as sub B of Sub 140 of Lot 5 No. 1519, 144 Helston Road, Pietermaritzburg, KwaZulu-Natal or Erf 137 Lot 5 No. 1519 Pietermaritzburg, KwaZulu-Natal;

That second respondent be interdicted and restrained from transferring the property described as Sub B of Sub 140 of Lot 5 No. 1519 from the name of the first respondent to any other person or registering any further bond over the property described as Erf 137 Lot 5 No. 1519 Pietermaritzburg, KwaZulu-Natal;

That first respondent be interdicted from entering into any deed of sale with any person in respect of the property described as Erf 137 Lot 5 No. 1519 Pietermaritzburg, KwaZulu-Natal and Sub B of Sub 140 No. 1519 Pietermaritzburg, KwaZulu-Natal;

Costs of this application;

Further and/or alternative relief.

2. That pending the finalisation of this application the orders in paragraphs 1.1 to 1.3 above act as interim orders.”

[2] The application is opposed on the ground that the deed of sale is incapable of rectification as it is null and void ab initio.” In her answering affidavit the respondent says:

“The property described as Erf 137 of Lot 5, Pietermaritzburg is the description of the immovable property where I am resident, which immovable property is situate at 154 Helston Road. The said immovable property was never offered by me for sale.”

[3] The following facts are common cause between the applicant and first respondent:

3.1 The applicant and first respondent intended to enter into an agreement in which first respondent sought to sell to applicant who in turn sought to purchase property and, for that purpose they entered into a written deed of sale. It is dated 4 February 2005 though, as it appears to me, it is common cause that it was in error that in the last page thereof the date appears as 4 February 2004.

3.2 Both the applicant and the first respondent signed the deed of sale. It is Annexure “SS1” to the applicant’s founding affidavit.

3.3 In what appears to have been a mistake common to both the applicant and the first respondent, they both signed a deed of sale which described the property as “Erf 137 Lot 5, Pietermartizburg situated at 144 Helston Road,” which is not what the respondent intended to sell and what the applicant intended to purchase.

3.4 Both the applicant and the first respondent say such description was not correct.

[4] After the applicant and the first respondent had signed the deed of sale, applicant avers, she discovered that Udeshin Sewpaul, the estate agent involved in the process, who the applicant refers to as first respondent’s agent, had deleted the abovementioned description of the property and inserted and signed the following changed description:

‘Portion 800 (of 140) of Lot 5 No. 1519’

I may at this point state that the first respondent avers that she did not authorise Sewpaul to effect the change in the description of the property on the deed of sale. There was, before me, no evidence of written authority conferred by first respondent to Sewpaul.

[5] I deal first with the first respondent’s contention that the deed of sale does not comply with the provisions of section 2(1) of the Alienation of Land Act No. 68 of 1981 (“the Act”) and is therefore null and void ab initio and not subject to rectification. The first respondent contends that “the immovable property sold and purportedly being the subject of the said deed of sale cannot be identified on the ground by reference to the provisions of clause 1 of the said deed of sale without recourse to oral evidence from the applicant, the estate agent concerned and (first respondent) regarding (their) negotiations and consensus,” and that such evidence would be inadmissible.

[6] In regard to the contention, with reference to section 2(1) of the Act, that the deed of sale is null and void by reason of non-compliance with section 2(1) of the Act, what may need to be said is that section 2(1) of the Act does not prohibit rectification of a deed of sale. Section 2(1) 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.”

These proceedings are not for the enforcement of the contract of sale with reference to the deed of sale in question. I myself do not perceive my task in these proceedings to relate thereto as I perceive my task to be to decide whether or not the applicant has made out a case for entitlement to the orders sought pending finalisation of the action whose result may be for or against rectification of the deed of sale.

[7] In regard to the contention that the property cannot be identified on the ground without recourse to oral evidence regarding applicant’s and first respondent’s negotiations and consensus, Mr Lotz refers to various authorities including Clements v Simpson 1971(3) SA1(A) and others. Headermans (Vryburg) (Pty) Limited v Ping Bai [1997] ZASCA 33; [1997] 2 All SA 371(A) at 375 does set out the test as was cited by Mr Lotz as follows:

“The test for compliance with the statute in this regard is whether the land sold can be identified on the ground by reference to the provisions of the contract, without recourse to evidence from the parties as to their negotiations and consensus (Clements v Simpson 1971(3) SA 1(A) at 7F-G).”

It is clear from this dictum that a deed of sale can be rectified to give effect to its signatories’ intention.

[8] I shall now refer to the averments of both the applicant and the first respondent in regard to the question of identifiability of the property. In that regard, in reference to a response by first respondent’s attorneys to applicant’s attorneys’ letter, which stated that “there was no incorrect designation of the property as it [the deed of sale] referred to 144 Helston Road which is indeed the address of the said property,” the applicant states in paragraph 9 of her founding affidavit:

“On 11 September 2006 Stowell and Company, responded by stating that it was a subdivision which was to be purchased and that the agreement originally referred to the whole property.”

To this the first respondent’s response in paragraph 13 of her answering affidavit is as follows:

“I admit the allegation contained in this paragraph. I point out that Annexure “SS5” to the applicant’s founding affidavit incorrectly refers to Erf 137, Lot 5, being the description of the whole of the immovable property in question and being situate at 144 Helston Road. That is in fact incorrect as Erf 137 Lot 5 is the immovable property where I am currently resident, the street address being 154 Helston Road.”

[9] What emerges from both the applicant’s averments and first respondent’s response thereto, is that there is no dispute that the property was incorrectly described on the deed of sale as Erf 137, Lot 5. That is precisely the reason why the applicant seeks that the deed of sale be rectified. It is in order that statutory formalities be complied with and in order to give effect to the intention of the parties to the agreement. What also emerges is that “it was a sub-division,” a portion of the property situated at 144 Helston Road which was to be sold to applicant. The applicant identifies the property in question as Sub B of Sub 140 of Lot 5 No.

1519. I consider the property to be identifiable from the diagram which, though not attached to the deed of sale, is annexed as “SS2” to the applicant’s founding affidavit. In my view there is, in the light of this, no room for the contention that the property is not identifiable to any of the parties to the agreement which would necessitate recourse to oral evidence to identify it. Although the applicant identifies the property as has been indicated to be Sub B of Sub 140 of Lot 5 No. 1519, the respondent has, in a bare denial, refrained from committing herself to providing detail as to what she regards as the correct identification of the property. Instead, she merely contends that it is not identifiable without recourse to oral evidence. Such a response, being in the nature of a bare denial, cannot, in my view, prevail. That, in my view can hardly be regarded as raising a genuine and bona fide response. It is inconceivable that the first respondent would have engaged in a deliberate process of alienating property to the point of signing a deed of sale which even reflects the price to be paid for such property without being aware of the property to be sold and without it being in reference to a specific portion of her property.

[10] There is, before me, no factual basis for holding that the applicant’s action for rectification is doomed to failure. The action for rectification is, in my view, not devoid of prospects of success. Without preservation of the status quo by way of the relief sought, any judgment in applicant’s favour in the action for rectification would be rendered nugatory.

[11] It appears from Annexure “SS7” to applicant’s founding affidavit, received from the first respondent’s attorneys that the first respondent’s intention is to resell the property. The applicant has reasonable cause for apprehending that the property will be alienated. As the first respondent, though requested not to sell, is unwilling to agree thereto, the applicant is left with no alternative but to approach the court for relief.

[12] I am persuaded that the application must succeed. As it is evident from paragraph 15 of the founding affidavit, where the applicant states that “(a)n action for the rectification of the said description of the property in the deed of sale will be instituted immediately,” that such action is yet to be instituted, an appropriate order which takes cognizance of that fact must be made.

[13] In regard to costs, I consider that it would be appropriate to order that the question of costs stand over for decision at the trial.

[14] I make the order that pending the finalisation of an action by the applicant for the rectification of the deed of sale:

the first respondent be interdicted and restrained from disposing of or encumbering the immovable property described as Sub B of Sub 140 of Lot 5 No. 1519, 144 Helston Road, Pietermaritzburg, KwaZulu-Natal or Erf 137 Lot 5 No. 1519 Pietermaritzburg KwaZulu-Natal;

the second respondent be interdicted and restrained from transferring the property described as Sub B of Sub 140 of Lot 5 No. 1519 from the name of first respondent to any other person or registering any further bond over the property described as Erf 137 Lot 5 No. 1519 Pietermaritzburg KwaZulu-Natal;

the first respondent be interdicted and restrained from entering into any deed of sale with any person in respect of the property described as Erf 137 Lot 5 No. 1519 Pietermaritzburg KwaZulu-Natal;

the costs of this application be costs in the action for rectification of the deed of sale instituted by applicant, subject to (e) below.

Should the applicant not institute such action within 14 days of this judgment the orders under (a), (b), (c) and (d) above will fall away, and the applicant will pay the costs of this application.

Date of Hearing: 16 November 2007

Date of Judgment: 8 February 2008

Counsel for the applicant: Adv PC Bezuidenhout

Instructed by: WHA Compton Attorneys

Counsel for the first respondent: Adv GME Lotz

Instructed by: Stowell & Co.

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