Mvusi v Mvusi NO and Others

• Jurisdiction: South Africa
• Judge: Davies AJ
• Judgment Date: 07 June 1995
• Docket Number: 322/87
• Court: Transkei Supreme Court
• Hearing Date: 01 June 1995
• Citation: 1995 (4) SA 994 (TkS)

A Davies AJ:

Before dealing with the nature of this action, I propose to set out certain background facts which are common cause or not seriously disputed.

Charles Mvusi (referred to hereinafter as 'the deceased') died intestate in 1973. He had married Susanna Keswa in 1896, the marriage being in B community of property. It followed that in terms of regulations made under s 23(10) of the Black Administration Act 38 of 1927 his estate (other than property specified under s 23(2) of the said Act) had to devolve according to common law ('as if he were a European') and not according to customary law. There were four children of the marriage, some of whom survived the deceased, and a number of other direct C descendants.

At the time of his death the deceased owned certain immovable property, namely a farm known as Diepkloof No 183, situated in the district of Umzimkulu. I shall refer hereinafter to this property as 'the farm'. It had been occupied by the deceased and members of his family for many years D and was regarded as the family home. Since there was immovable property in the estate the magistrate of Umzimkulu was obliged, in terms of the aforesaid regulations, to appoint a representative to administer the estate. On 5 March 1979 he appointed the deceased's eldest surviving son, Jotham Charles Mvusi (to whom I shall refer as 'Jotham'), as such representative. Thereafter, on 29 May 1979, the farm was transferred into E the name of Jotham by deed of transfer No TF 9/1979. The deed records that the 'appearer' (ie the attorney acting under the usual power of attorney from the transferor) declared that the transferee (Jotham) 'is the ab intestato heir of the said late Charles Mvusi', and in the power of attorney, signed by Jotham, it is stated that the property 'devolves' upon F him 'as the ab intestato heir' of the deceased. The transferor is described as Jotham in his capacity as 'representative in the estate' of the deceased.

In February 1982 Jotham entered into a deed of sale in terms of which he sold the farm to second defendant for the sum of R18 500, payable by way of a deposit and specific instalments.

G In or about September 1983, the magistrate of Umzimkulu, having been approached by 'other persons who claim to be heirs' to the deceased, withdrew the certificate appointing Jotham as the representative. He also wrote a letter (exh 'B') to Jotham informing him of this decision and notifying him that an enquiry into the estate would be held on 21 November H 1983, which enquiry Jotham was requested to attend.

The enquiry was duly held. Mr Bhengu, an attorney who was a member of a firm of attorneys who had been approached by those who claimed to be heirs, attended the enquiry. So did an attorney representing Jotham. It is not clear if Jotham himself was present, but whether he was present or not is immaterial. The magistrate confirmed at the enquiry that he had I terminated Jotham's appointment, and his attorney 'walked out' of the meeting.

No steps seem to have been taken by those claiming to be heirs to set aside either the transfer of the farm to Jotham or the sale to second defendant, and by deed of transfer No TF 5/1986, dated 18 February 1986, J the transfer of the farm from Jotham to second defendant was

Davies AJ

A formally registered, purportedly in pursuance of the deed of sale entered into by Jotham and second defendant in February 1983.

The plaintiff, who is a grandson and one of the co-heirs of the deceased, instituted this action in 1987. His locus standi has not been challenged and in effect it is accepted that he is really acting on behalf of all the B heirs (other than, of course, Jotham). He claims as against Jotham, cited as first defendant, an order calling upon him to render an account of his administration of the deceased's estate whilst he was a representative thereof and a debate of such account. As against the second defendant he claims an order directing the Registrar of Deeds (who is cited as the C nominal third defendant) to cancel the deed of transfer whereby the farm was transferred from Jotham to second defendant.

Jotham died in 1991. He took no steps during his lifetime to defend the action. On plaintiff's application, Jotham's executor was substituted as first defendant, and he has filed a notice to the effect that he abides the decision of the Court. It is not disputed that Jotham never rendered D an account of his administration of the deceased's estate and it is clear that at least in regard to his dealing with the farm he was in principle obliged to do so. Whether the executor should now be ordered to do so is debatable; I shall deal with this matter later.

The plaintiff founds his claim against second defendant for cancellation E of the deed of transfer whereby the farm was transferred to him by Jotham on two grounds, in effect a main ground and an alternative ground. In the first place it is alleged that Jotham misrepresented to the magistrate that he was the sole heir to the estate of the deceased and that he was only appointed as representative because of that misrepresentation; it is F then alleged that both the subsequent transfer of the farm to himself in his personal capacity and the transfer thereafter by him to second defendant were therefore void. In the second place it is alleged that at the time he took transfer of the farm second defendant was aware of the rightful claim of the plaintiff and the other heirs of the deceased to the farm - in effect that he was aware of the defect in Jotham's apparent title to the farm - and accordingly that he was not an 'innocent' G transferee and did not, by virtue of the transfer, acquire ownership of the farm.

The main ground

An evidential difficulty that faced the plaintiff was that all the H relevant records held by the magistrate of Umzimkulu were destroyed by floods in Umzimkulu in 1987. However, Mr Madlanga, who appeared for the second defendant, accepted that, having regard to the terms of the letter from the magistrate (exh 'B') and the terms of the deed of transfer whereby the farm was transferred from the estate of the deceased to I Jotham, plaintiff had established, on a balance of probabilities, that Jotham was appointed as the representative of the estate because he misrepresented to the magistrate that he was the sole heir of the deceased. It is not alleged in plaintiff's particulars of claim that this misrepresentation was fraudulent, and in any event Mr Mbenenge, who appeared for the plaintiff, accepted that Jotham may not have realised J that the estate had to devolve according to common law and not

Davies AJ

A according to customary law (in which case he would have been entitled to take transfer of the farm). Plaintiff's case must therefore be decided on the basis that Jotham's misrepresentation was innocent, although I may say in passing that in my view it is probably irrelevant whether it was innocent or fraudulent.

B The first question to be decided is whether it follows, as contended by Mr Mbenenge, that the transfer of the farm to Jotham must be regarded as a nullity. Put in another way, did the registration of the transfer of the farm to Jotham effectively transfer dominium in the farm to him?

What was, in principle, necessary in order that dominium should pass? Carey Miller, in his work The Acquisition and Protection of Ownership, C deals with the matter at 118 onwards. The first requirement, he says, is that the parties must be in a position to pass and acquire ownership, which means normally that the transferor must be the owner or authorised by the owner. I would add that in regard to property in a deceased estate the transferor must clearly be the executor or representative or a person D authorised by him. There are exceptions to the rule that the transferor must be the owner (or authorised by him) but they are irrelevant in the present case. The second requirement listed by the learned author - that the parties must be legally competent to give and receive ownership - does not call for consideration here. And the third requirement is that the parties must intend the passing of ownership. In this regard the learned E author deals with the difference between the 'abstract' and the 'causal' approach to the transfer of dominium. He states at 124 para 9.2.2.3(a) that:

'An abstract approach to the transfer of dominium is concerned with the parties' intention to pass and receive ownership, in the abstract, regardless of whether this is supported by an underlying causa or basis. F On the other hand, the causal approach requires a linking causa or basis - typically, an underlying contract - which can be seen as the raison d'être for delivery'.

He thereafter reviews the authorities and cases and comes to...