Mashazi v Mukuma and Others (17373/2021) [2024] ZAGPJHC 668 (22 July 2024)
- Citation
- [2024] ZAGPJHC 668
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Aucamp
- Case number
- 17373/2021
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Aucamp
- Case number
- 17373/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The applicant failed to establish that the second to fifth respondents were aware of the pre-existing sale agreement at the time of their purchase and transfer. The evidence does not support the contention that the fourth respondent's visit to the property constituted knowledge of the applicant's rights. As the second to fifth respondents are bona fide purchasers who acquired transfer, they are entitled to retain the property. The applicant's remedy lies against the first respondent for damages. The failure to disclose a cause of action is dispositive, and the application must be dismissed. The court did not find it necessary to rule on the issue of prescription.
Court disposition
Application dismissed with costs awarded against the applicant.
Orders
- The application is dismissed.
- The applicant is directed to pay the second to fifth respondents' costs, such costs to be taxed on scale B as provided for in terms of Rule 67A of the Uniform Rules of Court.
02
Material facts
Parties
Kelvin Twoboy Mashazi
Applicant Counsel: Adv Tungwana FMabalanganye Panuel Mukuma
RespondentFreddy Tshikosi Rakhadani
Respondent Counsel: Mr R KatombeDakalo Prescious Rakhadani
Respondent Counsel: Mr R KatombeMinty Patrick Ramabale
Respondent Counsel: Mr R KatombeTheba Thalitha Tumediso Ramabale
Respondent Counsel: Mr R KatombeThe Registrar of Deeds
Respondent03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the second to fifth respondents acquired the property as bona fide purchasers without knowledge of the prior sale to the applicant.
- 02
Whether the applicant is entitled to have the transfer to the second to fifth respondents set aside and to compel transfer to himself.
- 03
Whether the applicant's claim for enforcement of the sale agreement has prescribed under the Prescription Act.
Party arguments
- Applicant
- The applicant contends that he purchased the property from the first respondent in 2010, paid the full purchase price, and took occupation. He alleges that transfer was not effected due to the first respondent's lack of cooperation. Upon learning in 2021 that the property had been sold and transferred to the second to fifth respondents, the applicant seeks to set aside that transfer and compel transfer to himself. He argues that the fourth respondent's visit to the property in 2019 constituted knowledge of the pre-existing sale, relying on Jokozela v Ngece to support his position.
- Respondent
- The second to fifth respondents maintain that they purchased the property in good faith from the first respondent in 2019, were unaware of any prior sale to the applicant, and are bona fide purchasers. They further argue that the applicant's claim to enforce the 2010 sale agreement has prescribed under the Prescription Act. They seek dismissal of the application with costs.
05
Court’s reasoning
Legal principles
- 01
Kerr, Principles of Law of Contract 6th Edition p. 673; Gugu and Another v Zongwana & Others [2013] JOL31018 (ECN) at para 32
In cases of double sale, if transfer is passed to a subsequent bona fide purchaser, that purchaser is entitled to retain the property; the pre-existing purchaser's remedy is a claim for damages against the seller.
- 02
Kerr, Principles of Law of Contract 6th Edition p. 673; Gugu and Another v Zongwana & Others [2013] JOL31018 (ECN) at para 32
If the subsequent purchaser knew of the prior purchaser's rights at the time of purchase or transfer, the prior purchaser may claim transfer from the subsequent purchaser or seek cancellation of the transfer.
06
Ratio, limits and disposition
Ratio decidendi
The applicant failed to establish that the second to fifth respondents were aware of the pre-existing sale agreement at the time of their purchase and transfer. The evidence does not support the contention that the fourth respondent's visit to the property constituted knowledge of the applicant's rights. As the second to fifth respondents are bona fide purchasers who acquired transfer, they are entitled to retain the property. The applicant's remedy lies against the first respondent for damages. The failure to disclose a cause of action is dispositive, and the application must be dismissed. The court did not find it necessary to rule on the issue of prescription.
Obiter and limits
- The mere visit by a subsequent purchaser to the property, without evidence of knowledge of a prior sale, does not suffice to establish awareness of pre-existing rights.
- The applicant's reliance on Jokozela v Ngece was misplaced, as the facts of that case are distinguishable and do not support the applicant's argument.
Court disposition
Application dismissed with costs awarded against the applicant.
- The application is dismissed.
- The applicant is directed to pay the second to fifth respondents' costs, such costs to be taxed on scale B as provided for in terms of Rule 67A of the Uniform Rules of Court.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
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 LOCAL DIVISION, JOHANNESBURG
Case Number: 17373/2021
1. REPORTABLE: YES / NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES/NO
22 July 2024
In the matter between:
KELVIN
TWOBOY MASHAZI
Applicant
and
MABALANGANYE
PANUEL MUKUMA
First Respondent
FREDDY
TSHIKOSI RAKHADANI
Second Respondent
DAKALO
PRESCIOUS RAKHADANI
Third Respondent
MINTY
PATRICK RAMABALE
Fourth Respondent
THEBA
THALITHA TUMEDISO RAMABALE
Fifth Respondent
THE
REGISTRAR OF DEEDS
Sixth Respondent
Delivered: 22 July 2024 – This judgement was handed down electronically by circulation to the parties’ representatives by email, by being uploaded to CaseLines. The date and time for the hand down is deemed to be 10:00 on 22 July 2024.
Summary: Property – double sales – if transfer is in fact passed to subsequent bona fide purchaser he is entitled to retain the property – pre-existing purchaser must claim damages against seller.
JUDGMENT
Aucamp AJ
[1] The applicant and the first respondent on 30 November 2010 concluded a written agreement of sale in terms of which the first respondent sold the property described as Erf 5[…] C[…] City, Extension Township, Situated at 8[…] B[…] C[…], C[…] City Extension, to the applicant. The purchase price was duly paid by the applicant in instalments with the last payment having been made on 3 November 2011.
[2] Notwithstanding the conclusion of the sale in 2010, the payment of the purchase price and the applicant having taken occupation on 5 December 2010, transfer of ownership in and to the property never took place. According to the applicant, this was solely due to the failure of the first respondent to have provided his co-operation with the formalities involved in the conveyancing process.
[3] Instead on 24 January 2021 the applicant was advised by the second to fifth respondents that they had purchased the property from the first respondent on 13 December 2019 and that transfer of ownership had been registered in their names some time thereafter.
[4] The applicant initiated this application on 9 April 2021 seeking to have the sale and transfer of the property in the names of the second to fifth respondents set aside and to obtain an order compelling the first respondent to give transfer of ownership to the applicant pursuant to and in terms of the sale agreement dated 30 November 2010.
[5] The first respondent does not oppose the application and instead an answering affidavit was filed only by and on behalf of the second to fifth respondents. The sixth respondent obviously was suited to this application purely as an interested party and no relief is being sought against the said respondent.
[6] Only two points have been advanced in opposition to the application namely that the second to fifth respondents acquired the property as bona fide purchasers and were wholly unaware of the sale transaction in existence between the applicant and the first respondent. Furthermore, it is alleged that the claim to seek enforcement of the sale transaction with the first respondent had prescribed in terms of the Prescription Act, Act 68 of 1969. As such the respondents seek an order whereby the application is dismissed with cost.
[7] In Kerr, the Principles of Law of Contract 6th Edition page 673 and in the matter of Gugu and Another v Zongwana & Others[1] it was held that the legal position in respect of a double sale can be summarised as follows:
“In the case of double sales other than those in which one party has an option in a lease, if transfer is in fact passed to C and C is bona fide, he is entitled to retain the property and B is left with an action for damages against A, the seller. However, if C knew of B’s
rights when he bought or when he took transfer, then B can claim against C transfer from C to himself or he can claim against A and see cancellation of the transfer to C and transfer from A to himself.”
[emphasis added]
[8] The critical question accordingly is whether the second to fifth respondents at the time of having concluded the second sale agreement with the first respondent and the subsequent registration of transfer ownership thereof, giving effect to the said sale, were aware of the pre-existing sale between the applicant and the first respondent in 2010.
[9] The second to fifth respondents in their answering affidavit confirms that they were unaware of the dealings between the applicant and the first respondent. The applicant on the other hand attempts to refute the allegation, albeit in argument and not in the founding or replying affidavit that the visit by the fourth respondent to the applicant at the property on 11 November 2019, constituted knowledge on the part of the respondents of the pre-existing sale. Counsel for the applicant referred me to the matter of Jokozela v Ngece[2] in support of the contention that the mere visit of the fourth respondent to the applicant, with no details having been provided of what was discussed, more specifically that the fourth respondent was advised of the pre-existing sale between the applicant and the fourth respondent, would suffice. I considered the matter referred to and fails to identify the relevance thereof to this matter.
[10] As I am unable to find that the applicant has disclosed a cause of action in support of the relief claimed, the failure in this regard is dispositive of the entire matter and I need not make any findings in relation to the issue of prescription.
ORDER
[11] Consequently, I make the following order.
[1] The application is dismissed.
[2] The applicant is directed to pay the second to fifth respondents’ costs, such costs to be taxed on scale B as provided for in terms of Rule 67A of the Uniform Rules of Court.
AUCAMP AJ
ACTING JUDGE OF THE
HIGH COURT
GAUTENG, JOHANNESBURG
HEARD ON: 21 May 2024
DATE OF JUDGEMENT: 22 July 2024
For the Applicant:
Adv Tungwana F
Instructed by Makinta Attorneys
For the Respondent:
Mr R Katombe
Instructed by Katombe Attorneys
[1] [2013] JOL31018 (ECN) at para 32
[2] 2017 JDR 0827 (ECG)
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