Member of The Executive Council For Housing, Provincial Government and Traditional Affairs v Dr Dlova Legal and Corporate Services
| Jurisdiction | South Africa |
| Judge | Petse ADJP |
| Judgment Date | 24 April 2008 |
| Docket Number | 1140/2006 |
| Hearing Date | 22 February 2008 |
| Court | Transkei Division |
Petse ADJP:
INTRODUCTION:
[1] The applicant instituted these proceedings against the seven respondents fully described hereunder on 6 October 2006 in which he seeks the undermentioned relief:
that the purported Deed of Donation embodying a memorandum of agreement made and entered into by and between the Provincial Government of the
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Eastern Cape, as represented by the Applicant, and SBK Trust, represented by VUYISILE DLOVA, in respect of a property described as the remainder of Erf 6441, Mthatha (in extent 145, 2753 hectares and held under certificate of consolidated title T225/1985) (the Property) be declared to be of no force and legal effect;
that the purported power of attorney for the appointment of an unidentified person signed by the applicant on 6 March 2006 to transfer the property to SBK Trust be declared to be of no force and legal effect;
that such respondent or respondents who may elect to oppose this application pay costs of suit, including costs of two counsel, jointly and severally the one paying the other to be absolved only in the event of them opposing this application, and
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that this Honourable Court grant such further and/or alternative relief as may seem to it meet.
[2] I have put the terms of para 4 of the applicant's notice of motion in parenthesis for reasons that will become more apparent later in this judgment.
THE PARTIES:
[3] The applicant is Mr Samson Ncedani Kwelita ("Kwelita") who brings these proceedings in his official capacity as the Member of the Executive Council responsible for the Department of Housing, Local Government and Traditional Affairs in the Eastern Cape Provincial Government duly appointed as such during May 2005 in terms of section 132 (2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) with offices located at Tyamzashe Building, Second Floor, Bhisho;
[4] Kwelita has averred in the founding affidavit that he institutes these proceedings in his capacity as
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the political head of the Department of Housing, Local Government and Traditional Affairs ("the Department");
a repository of ministerial powers delegated to him by the Minister of Land Affairs of the Government of the Republic of South Africa; and
a representative of the Eastern Cape Provincial Government.
[5] The first respondent is DR DLOVA LEGAL AND CORPORATE SERVICES, an entity, cited herein as a trustee of SBK Trust and whose chosen residential address for purposes of section 5 of the Trust Property Control Act, 1988 (Act 57 of 1988) is 7 Mfebe Street, Southridgepark, Mthatha. The precise legal status of the first respondent is said to be unknown to Kwelita.
[6] The second respondent is VUYISILE DLOVA, an adult male resident of 7 Mfebe Street, Southridgepark, Mthatha, cited herein in his official capacity as a nominee of the first respondent.
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[7] The third respondent is NELISA MATHANDABUZO, an adult female cited herein in her official capacity as a trustee of SBK Trust and who, it is alleged, has chosen address for purposes of section 5 of the Trust Property Control Act at Nikwanto Centre, Community Development House, Vezamafa Place, East London Road, Mthatha.
[8] The fourth respondent is KING SABATHA DALINDYEBO MUNICIPALITY, which is described as :
an organ of State within the local sphere of government exercising legislative and executive authority over, inter alia, Southrigdgepark, Mthatha ; which :
functions in its area in accordance with the political, statutory and other relationships between its political structures, political office bearers and administration and its community;
is successor-in-title to the Municipality of Mthatha;
has its head office at Munitata Building, corner of Leeds Road and Sutherland Street, Mthatha.
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[9] The fifth respondent is SOUTHRIDGE PROPERTIES (PTY) LTD, which-
is a company with limited liability, incorporated in terms of the laws of the Republic of South Africa; and
has its principal place of business at 399 Homes Trust Building, 23 Alexandra Road, Mthatha.
[10] The sixth respondent is THE REGISTRAR OF DEEDS, MTHATHA, with offices located at Ground Floor, Botha Sigcau Building, Leeds Road, Mthatha.
[11] The seventh respondent is THE MASTER OF THE HIGH COURT, MTHATHA, whose offices are located at Metropolitan Place, Leeds Road, Mthatha.
[12] The fourth, fifth, sixth and seventh respondents are cited purely as interested parties on the basis that they may have an interest in the subject matter of these proceedings. No substantive relief is being sought against them.
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[13] Only the first, second and third respondents are opposing the application. The fourth and fifth respondents have filed notices to abide the judgment of this Court whilst the sixth and seventh respondents have elected to remain supine. In this judgment I shall, for the sake of convenience, refer to the first, second and third respondents collectively as "the respondents". The remaining respondents will be referred to in the manner and/or sequence in which they have been cited by the applicant.
[14] Although the papers in these proceedings comprise some 355 pages the issue that I am called upon to decide has, on the view I take of the matter, crystallized into a somewhat crisp one confined to a narrow compass.
BACKGROUND:
[15] With a view to putting the matter in its proper perspective I propose to sketch briefly the historical background that precipitated these proceedings.
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[16] The applicant's predecessor-in-office one Mr Gugile Ernest Nkwinti ("Nkwinti") concluded a Deed of Donation on 21 March 2001 in terms of which he, in his official capacity and representing the Department donated erf No. 6441 Mthatha ("the property") to the King Sabata Dalindyebo Municipality ("the donee") represented by a Mr Monwabisi Wellington Malothana, the latter acting in his representative capacity in terms of sec 208 of the Municipalities Act 24 of 1979 (Transkei) as the Town Clerk of the donee. For the sake of convenience I shall hereinafter refer to this donation as "the first donation".
[17] Unbeknown to Kwelita that the property had already been donated to the fourth respondent by his predecessor-in-office, he concluded a Deed of Donation with the respondents on 6 March 2006 (almost five years later) in terms of which he alienated the self-same property to the respondents. I shall for the sake of convenience refer to this donation as the "second donation."
[18] Pursuant to the first donation Nkwinti instructed a Conveyancer, Attorney Clayton Mkhululi Manxiwa ("Manxiwa") to attend to the registration of transfer of the property into the name of the fourth respondent. To this end Manxiwa was placed in possession of the Title Deed of the property. For reasons that
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are not readily apparent from the papers the fourth respondent instructed Manxiwa to hold the process of registration of transfer of the property into its name in abeyance pending further advices from it.
[19] It came to pass that Nkwinti left the Department of Housing, Local Government and Traditional Affairs in the Eastern Cape Provincial Government and was succeeded by Kwelita.
[20] Likewise, Kwelita, intent on giving effect to the second donation to the respondents signed a document titled "Power of Attorney to Transfer" also on 6 March 2006 in terms of which he appointed an unidentified Conveyancer to attend to the registration of transfer of the property to SBK Trust and to that end "to renounce all the right, title and interest which the Provincial Government of the Eastern Cape had in the property".
[21] I think it is timely to pause here and mention that the Title Deed of the property was a sine qua non for registration of transfer of the property which had long been in the possession of Manxiwa. Manxiwa was then requested by a Mr Mbulelo Jolwana, the Conveyancer instructed by Kwelita ("Jolwana") to place him
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in possession of the property's Title Deed so as to enable him to give effect to the mandate given to him by Kwelita which was register the property into the name of SBK Trust.
[22] Realising that there might well be something amiss Manxiwa did not accede to Jolwana's request but rather telephoned Kwelita drawing his attention to the existence of the first donation to the fourth respondent previously concluded by his predecessor-in-office (i.e. Kwinti).
[23] As a consequence of this communication with Manxiwa Kwelita then wrote to the respondents effectively advising them ultimately that the Department would no longer act in accordance with the terms of the second donation to them on the grounds that when he concluded the second donation with the respondents he was completely oblivious of the existence of the first donation previously executed by Nkwinti. In response to Kwelita's letter the respondents adopted the stance that it was not open to Kwelita to terminate their contractual relationship with them unilaterally and also intimated that they held Kwelita to the terms of the second donation despite the fact that Kwelita claimed to...
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