Meintjes NO v Coetzer and Others

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Shongwe JA, Leach JA, Theron AJA and Seriti AJA
• Judgment Date: 29 March 2010
• Citation: 2010 (5) SA 186 (SCA)
• Docket Number: 089/09
• Hearing Date: 15 February 2010
• Counsel: JG Bergenthuin SC for the appellant. Z Omar (attorney) for the respondents.
• Court: Supreme Court of Appeal

Meintjes NO v Coetzer and Others
2010 (5) SA 186 (SCA)

2010 (5) SA p186

Citation	2010 (5) SA 186 (SCA)
Case No	089/09
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Shongwe JA, Leach JA, Theron AJA and Seriti AJA
Heard	February 15, 2010
Judgment	March 29, 2010
Counsel	JG Bergenthuin SC for the appellant.; Z Omar (attorney) for the respondents.

Flynote : Sleutelwoorde B

Land — Transfer — Waiver of ownership rights — Whether land transferable by waiver of ownership — Abstract theory of transfer — Real agreement to transfer ownership may be valid notwithstanding invalidity of sale — Ownership may be acquired by waiver, provided that real agreement not defective, ie that waiver valid.

C Vindication — Land — Fraudulent transfer and registration — Requirements for passing ownership not met in absence of intention to transfer ownership — Ownership of land fraudulently transferred not lost — Owner entitled to recover land by way of rei vindicatio.

D Contract — Legality — Contracts contrary to public policy — Specific instances — Rights acquired by waiver in favour of party that earlier attempted to acquire such rights by fraudulent means — Rights fraudulently obtained unenforceable.

Headnote : Kopnota

E In an executor's claim for the rectification of title deeds to reflect the deceased as owner of properties that the respondents (two of her children) had fraudulently obtained transfer of, her alleged acquiescence in the fraud was presented in defence as having constituted a waiver of her right to ownership.

The executor, the brother of the respondents, was nominated as the sole heir in his mother's amended will, executed after she became aware of the F fraudulent transactions. The inference the respondents wished the court to draw from their exclusion as heirs was that their mother had changed her will (which had previously included them as heirs) because they had already received what they otherwise would have inherited, and that the amendment of her will therefore supported their contention that she had waived G her rights in the properties.

The Provincial Division of the High Court rejected the executor's claim, holding that the deceased had waived her right to reclaim the properties. In an appeal to the SCA, the court identified the issues for determination as whether (1) the deceased had waived or abandoned her right to the ownership of her fraudulently transferred properties; and (2) land was H capable of being transferred by way of a waiver without a deed of alienation duly signed by both the owner and the transferee, as required by s 2(1) of the Alienation of Land Act 68 of 1981.

Held (per Shongwe JA; Mthiyane AJA, Theron AJA and Seriti AJA concurring), that, had the High Court addressed the executor's claim based on the I rei vindicatio, it would have enquired into the principles relating to the acquisition and loss of ownership of land. Under the abstract theory of transfer of ownership of land there were two requirements: delivery (which in the case of land was effected by registration in the deeds office), and a valid real agreement. The essential elements of the latter were an intention on the part of the transferor to have passed ownership and an intention on the part of the transferee to have become the owner. Although the abstract J theory did not require a valid underlying contract (such as an agreement of sale),

2010 (5) SA p187

ownership would not pass if there was a defect in the real agreement. A (Paragraphs [8] and [13] at 189F - J and 191E.)

Held, further, that in the present case both the obligation-creating agreement (causa) and the real agreement were absent due to the fraudulent conduct of the defendants, and that the deceased had accordingly never lost her rights of ownership, this notwithstanding the fact that the properties had been registered in the names of the respondents. (Paragraphs [8], [14] and [16] at 189F - G, 191F - H and 192B - C.) B

Held, further, that the respondents had failed to discharge the onus of proving that the deceased had had the intention to abandon the properties. The facts were plainly inconsistent with such intention: one would have expected her to have stated so unequivocally in her last will, but, instead, she had bequeathed her entire estate to the appellant. It was, however, C difficult to place any evidentiary value on the occurrences cited as indicative of the deceased's intention. (Paragraphs [11], [16] and [17] at 191A - B, 192B - C and 192G - H.)

Held, further, that the respondents were in effect asking the court to enforce a fraudulently obtained right, something that could not be countenanced in the light of public policy and constitutional principles. D (Paragraph [15] at 191H - 192A.) Appeal accordingly upheld.

Cases Considered

Annotations

Reported cases

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691): dictum in para [28] applied E

Du Plessis v Prophitius and Another 2010 (1) SA 49 (SCA): referred to

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A): referred to

Knysna Hotel CC v Coetzee NO 1998 (2) SA 743 (SCA): distinguished

Kristal v Rowell 1904 TH 66: referred to

Laws v Rutherfurd 1924 AD 261: referred to F

Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA): dictum in para [22] applied

Mahabeer v Sharma NO and Another 1985 (3) SA 729 (A): referred to

Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A): referred to

Preller and Others v Jordaan 1956 (1) SA 483 (A): referred to

Traub v Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd G 1983 (3) SA 619 (A): referred to

Union Free State Mining and Finance Corporation Ltd v Union Free State Gold and Diamond Corporation Ltd 1960 (4) SA 547 (W): referred to

Van Rensburg en Andere v Taute en Andere 1975 (1) SA 279 (A): referred to.

Case Information

Appeal against a decision in the North Gauteng High Court, Pretoria H (Botha J). The facts appear from the judgment of Shongwe JA.

JG Bergenthuin SC for the appellant.

Z Omar (attorney) for the respondents.

Cur adv vult. I

Postea (March 29).

Judgment

Shongwe JA:

[1] This appeal is against the judgment and order of the North Gauteng High Court (Pretoria) (Botha J) dismissing an action instituted by the J

2010 (5) SA p188

Shongwe JA

A appellant, as plaintiff, against the respondents, as first, second and third defendants. For convenience I shall refer to the parties as plaintiff and defendants, as in the court a quo. In that action the plaintiff sought an order directing the third defendant to rectify the title deeds of portions 2 and 3 of the farm Mazunga 142, Registration Division KT Limpopo B Province, to indicate that the deceased estate of John Meintjes (ID 170610 0008 086) is the registered owner of the said portions. In the alternative he sought an order compelling the first and second defendants to sign the necessary documentation to effect the transfer of portions 2 and 3 of the farm Mazunga 142, Registration Division KT Limpopo Province, to the deceased estate within 30 days of the order, failing which C the sheriff within whose jurisdiction area farm Mazunga 142 is situated, shall be authorised to sign all necessary documents to effect such retransfer. In its dismissal of the plaintiff's claim the court a quo found that the first and second defendants had succeeded in proving their defence of waiver. The matter is now before this court with the leave of D the court a quo.

[2] In my view the facts of this case are not in dispute, but the sole question for decision on appeal is whether the deceased had waived or abandoned her right to the ownership of portions 2 and 3 of her property, which were fraudulently transferred by the first and second E defendants into their names. Allied to this issue is the question whether immovable property is capable of being transferred by way of waiver without a deed of alienation duly signed by both the owner and the transferee as required by s 2(1) of the Alienation of Land Act 68 of 1981 (the Act).

F [3] A short backdrop of the history of the matter is perhaps necessary. The plaintiff and the first and second defendants are the children of the deceased John Meintjes, their mother, although the name may misrepresent her gender. She owned the farm Mazunga (the farm) situated in the Limpopo Province as described above. She lived on the farm with the G plaintiff and his family. In 1993 she made a will in which she bequeathed all her property to her children in three equal shares. In 1998 she applied for a subdivision of the farm into three portions, which application was granted. In 2003 she made another will in which she bequeathed each specific portion of the farm to her respective children. The first and H second defendants were to receive portions 2 and 3, respectively.

[4] The deceased became ill and died in January 2006. Before she died the first and second defendants had clandestinely orchestrated a transfer of I portions 2 and 3 of the farm into their names. This they did without the deceased's knowledge. Documents were falsified and eventually portions 2 and 3 of the farm were transferred and registered into their names. In the year 2002 a purported deed of sale in respect of portion 3 was produced...