Dosa v Government of the Republic of South Africa and Others (304/2015) [2016] ZALMPTHC 5 (4 February 2016)

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

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 304/2015

DATE: 4 FEBRUARY 2016

In the matter between:

SHANTILAL DOSA....................................................................................................................Plaintiff

And

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA......................................1st Defendant

THE REGISTRAR OF DEEDS PRETORIA.................................................................2nd Defendant

THE SURVEYOR GENERAL PRETORIA...................................................................3rd Defendant

EAST AND WEST INVESTMENTS (PTY) LTD...........................................................4th Defendant

JUDGEMENT

KGANYAGO AJ

[1] This is an exception in terms of s23(l) of the Uniform Rules of Court, in terms of which the fourth defendant complains that the plaintiff's claim is both vague and embarrassing and fails to disclose a cause of action. The facts are briefly as follows: On the 28th April 1987 the plaintiff purchased immovable property known as site 3….., M…… T…… in the District of Thohoyandou. It alleged that one Aboo and the plaintiff orally agreed to apply to the Minister of Urban Affairs and Land Tenure of the then Republic of Venda for the subdivision of site 33 into two portions. The deed of grant in respect of portion 1 was to be issued in favour of Estee Investment whilst portion 2 was to be issued in favour of the plaintiff. The application was approved with effect from the 29th April 1987. However, the entire site was transferred to Estee Investment, which later transferred it to the fourth defendant. During 2011 site 33 was consolidated with various other ervens to form Erf 5……, M……. Township Thohoyandou, of which the fourth defendant is now the registered owner. The plaintiff now wants the transfer that took

place during 1987 be rectified and that the deed of grant be issued in its names in respect of portion 2 of site 33.

[2] On the 22nd July 2015, the fourth defendant served the plaintiff with a notice in terms of rule 23(1) of the Uniform Rules of Court in which it is claimed that the plaintiff's particulars of claim are vague and embarrassing and/or fails to disclose a cause of action.

[3] The plaintiff does not state the circumstances under which site 33 was transferred to Estee Investment in its entirely and not in accordance with the alleged approved sub-division. The plaintiff merely state that the Survey General of the then Republic of Venda has failed to amend its records in compliance with the instructions of the Director-General of the then Republic of Venda.

[4] The fourth defendant contends that site 33 was consolidated with various other ervens and does no longer exists as a separate property in the Deeds Registry, and that the plaintiff does not set out the facts which may sustain its prayer.

[5] The test on exception is whether on all possible reading of the facts no cause of action is made out. It is for the defendant to satisfy the court that the conclusuion of law for which the plaintiff contends cannot be supported upon every interpretation that can be put upon the facts, (see Children's Resource Centre v Pioneer Food 2013 (2) SA 213 (SCA)).

[6] in Telematrix Ltd v Advertising Standard Authority SA 2006 (1) SA 461SCA at para 3 the court stated:

"Exception should be dealt with sensibly. They provide a useful mechanism to weed out cases without legal merit. An over-technical approach destroys their utility. To borrow the imagery employed by Miller J, the response to an exception should be like a sword that cuts through the tissue of which the exception is compounded and exposes its vulnerability. Dealing with an interpretation issue, he added:

'Nor do I think that the mere notional possibility that evidence operate to debar the Court from deciding such issue on exception. There must, I think, be something more than a notional or remote possibility. Usually that something more can be gathered from the pleadings and the facts alleged or admitted therein. There may be a specific allegation in the pleadings showing the relevance of extraneous facts or there may be allegations from which it may be inferred that further facts affecting interpretation may reasonably possibly exists. A measure of conjecture is undoubtedly both permissible and proper, but the shield should not be allowed to protect the respondent where it is composed entirely of conjectural and speculative hypotheses, lacking any real foundation in the pleadings

or in the obvious facts".

[7] Counsel for the fourth defendant argued that from what appears on the particulars of claim, the plaintiff was never the owner of the property. It Is merely stating that it had purchased the property, but not stating that it took registration. The fourth defendant contends that the plaintiff has failed to allege any defect in the underlying or real agreement that resulted in the transfer of the property into the name of the fourth defendant that would serve to impugn the legitimacy of the fourth defendant's ownership. The fourth defendant is therefore of the view that they are seriously prejudiced in preparation of its plea,

[8] The plaintiff argues that in prayer 1 of their particulars of claim, they are praying for the rectification of the deed grant, and the court is empowered to order rectification of the error. The plaintiff contends that the deed of grant was not supposed to be described as it is now, and that at this stage ownership is irrelevant. The plaintiff argues that ownership passes if there is a real agreement, and the fourth defendant can raise that as a defence.

[9] The plaintiff is seeking an order that the first, second and third defendants rectify the deed of grant for the property that was consolidated on the 1st December 2011 by registering the plaintiff as the registered owner of portion 2 of site 33.

[10] From what appears on the plaintiffs particulars of claim, is that there was an oral agreement between Yusuf Omar Aboo and the plaintiff that site 33 be subdivided into portion 1 and 2. Portion 1 was supposed to be registered into the names of Estee Investments whilst portion 2 into the names of the plaintiff. The plaintiff further alleges that the entire site 33 inclusive of portions 1 and 2 was transferred to Estee Investment and the Minister of Urban Affairs and Land Tenure of the Republic of Venda and Survey-General of the Republic of Venda failed to amend its records in compliance with the instruction of the Director-General Urban Affairs and Land Tenure.

[11] It is common cause that the fourth defendant was not a party to the alleged oral agreement between the plaintiff and Yusuf Omar Aboo. It does not appear from the particulars of claim whether the transfer to the plaintiff was as a result mistake, fraud or corruption. The circumstances under which the property was transferred to the fourth defendant has not been stated. The plaintiff is not stating when they become aware that portions 1 and 2 has been transferred to Estee Investment and what prevented them to act immediately and rectify any error that has occurred. The plaintiff has also failed to state whether Estee Investment had a right to transfer the relevant portion to the fourth defendant. It is also not clear whether the transfer of the entire portions to Estee Investment was as result of the failure to amend the records in compliance with the instructions of the Director-General Urban Affairs.

[12] It is common cause that site 3…… does no longer exist, but has been consolidated with other ervens to form Erf 5……., of which the fourth defendant is now the registered owner. The transfer of site 33 to the fourth defendant was effected pursuant to a deed of sale, of which there is no suggestion that the property was fraudulently or improperly sold to the fourth defendant.

[13] There are no sufficient facts to challenge the validity of the transfer into the names of the fourth defendant. Under the circumstances, I agree with the fourth defendant's counsel that the plaintiff's particulars of claim is both vague and embarrassing and unable to sustain a cause of action. With plaintiff's particulars of claim as they stand, the fourth defendant will be prejudiced in preparation of its plea.

[14] In the result, I make the following order:

14.1 The exception is upheld with costs.

14.2 The plaintiff is hereby given leave to amend its particulars of claim within 10 (ten) days of receipt of this order, should it so wish.

M F KGANYAGO

ACTING JUDGE OF THE HIGH COURT

Date of hearing: 25 January 2016

Judgment Delivered: 05 FEBRUARY 2016