IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 570/04
In
the matter between :
ALLEN
THEMBA KHOZA PLAINTIFF
AND
SDVIANGELE
KUNENE DEFENDANT
FOR
PLAINTIFF MR. A. LUKKELE
FOR
DEFENDANT MR. J. MASEKO
12th
October, 2004
The
plaintiff who seeks eviction of the Defendant from certain premises
described as Portion 14 of Lot 345, situate in Zakhele Township,
Extension No. 2, District of Manzini, Swaziland, measuring 221 square
metres, has applied for summary judgement. From paragraphs three and
four of the plaintiff's particulars of claim the plaintiff's cause of
action as pleaded appears to be the rei vindication.
In
response to the summary judgement application the defendant has filed
an affidavit resisting summary judgement which he has given the title
"Answering affidavit." During the hearing Mr. Maseko raised
an objection in limine in respect of the attestation of the affidavit
filed in support of the application for summary judgement. In a
"notice to raise a point in limine" the objection is
formulated as follows;
2
"2.
The Plaintiff's affidavit verifying the particulars of claim together
with the verifying affidavit are improperly attested to in that the
names and designations of the Commissioner of Oaths are not
reflected. These must appear ex facie the papers or on the face of
the affidavit."
This
point was developed during argument by saying that even though the
person who has signed the affidavit as commissioner of oaths has
attached a rubber stamp mark of the station commander, Matsapha such
a person may possibly not be an ex officio commissioner of oaths
because according to Mr. Maseko an ex officio commissioner of oaths
in the Royal Swaziland Police Force is a member who holds the rank of
Sergeant and above. The argument went on to say that in the absence
of an indication that the person was indeed a sergeant one cannot say
if the person who signed this affidavit and apparently administered
the oath on the plaintiff is indeed a commissioner of oaths. Mr
Maseko's submission was not supported by any case law authority
requiring that the designation of the Commissioner of Oaths must
appear on the face of the affidavit. What is clear on the affidavit
is that the signatory describes himself as a Commissioner of Oaths
and in my view that is sufficient. The defendants point in limine is
misconceived in that at best it may well be that the defendant is
denying that the signatory is a commissioner of oaths, which denial
he is entitled to make, but it cannot be raised as a point in limine.
The defendant is entitled to dispute the fact that the signatory is a
Commissioner of oaths and thereby bringing evidence in support of its
contention that the signatory is not a Commissioner of Oaths. The
signatory having described himself as the Commissioner of Oaths it
can only be a factual or evidential matter whether he is indeed a
Commissioner of Oaths. In any event even the legal notices upon which
the defendant relies for the proposition that it is only a sergeant
in the Royal Swaziland Police Force who can execute a document as a
Commissioner of Oaths may not be something I can take judicial notice
of because such a legal notice is not legislation or law, but at best
it is an administrative act or delegated legislation which has to be
pleaded and proven by evidence if necessary. On this basis the point
in limine fails.
On
the merits of the application the defendant's case appears to be that
the property belongs to the defendant simple because the intention of
the previous owner, the Swaziland National Housing Board as
transferor in transferring the property to one Albert
Lubhaca
Dludlu was induced by a misrepresentation which the said Mr. Dludlu
made to the said Board to the effect that the property was under the
said plaintiff's occupation. The defendants' case proceeds further as
follows, that had the Swaziland National Housing Board been aware of
the fact that the Mr Dludlu was not in occupation of the property it
would not have transferred the property to him who in turn
transferred same to the Plaintiff. The Defendant says the property
belongs to it. The defendant states that the plaintiff had purchased
the property from one Albert Lubhaca Dludlu. The defendant says he
had given occupation of the property to the said Albert Lubhaca
Dludlu when he (the defendant) left this country to reside in South
Africa in 1994. Apparently according to defendant the said Albert
Lubhaca Dludlu was not authorised by him to relinguish the occupation
to any other person or to sell the property to any such person. It
appears that the defendant had occupied the property with the hope
that some day it would be transferred to him by the Swaziland
National Housing Board or the crown, by virtue of the fact that he
regarded himself as the occupant of the said property. According to
the defendant the said Albert Lubhaca Dludlu had possessed or
occupied the property on the basis of authority granted by the
defendant. The question which arises for decision therefore is
whether the above facts as set out by the defendant would constitute
a defence, if proven at a subsequent trial. The answer to that
question it would seem to me would depend inter alia on whether an
effectual transfer of the property from the said Albert Dludlu to the
plaintiff did occur. The answer to the latter question would in turn
depend on whether there was an effective conveyance of the property
from the Crown to the said Albert Lubhaca Dludlu. This is so because
if the property had not passed to Mr Dludlu in the first place then
he could not, in conformity with the principle expressed in the maxim
nemo dat quod non habet, have passed the property to the Plaintiff
and on that basis the plaintiff cannot be the owner. Similarly the
said Albert Lubhaca Dludlu could not have been the owner at any
stage. The plaintiff's caused of action is the vindicatio rei and if
the defendant can successfully show that the plaintiff is not the
owner that would be a valid defence to the claim. Now, the reason
given by the defendant for disputing that the ownership of the
property vests in the plaintiff is the alleged misrepresentation
allegedly made by Mr. Dludlu to the Swaziland National Housing Board
to the effect that he was the occupier of the property. This alleged
4
misrepresentation
is said to have induced the act of the crown or the Swaziland
National Housing Board to transfer the property to the said Albert
Lubhaca Dludlu who subsequently sold and transferred same to the
plaintiff. The essential elements in the transfer or conveyance of
real rights is dealt with by SILBERBERG & SCHOEMAN, in their LAW
OF PROPERTY, 2nd edition at page 73. Our law follows the so-called
abstract system in the conveyance of real rights from one person to
another. The Roman Dutch law makes a distinction between the
so-called underlying agreement, for example a sale, on the one hand
and the so-called real agreement on the other hand and treats the two
transactions as being independent of each other. The real agreement
which is the transaction which ought to convey the property from one
owner to a new owner is not necessarily vitiated or affected by
defects in the underlying transaction, like a sale. This doctrine has
also been expressed by saying, in so far as the element of the
intention of the parties is concerned, that the conveyance of
dominium in the Roman Dutch law occurs by traditio accompanied by
justa causa traditionis as opposed to contracts such as a sale and
the justa causa contractus. By justa causa traditionis is not meant
an underlying contract for the real agreement which is the
transaction for the conveyance of dominium or other real rights from
the transferor to the transferee, but all that is meant is an
appropriate reason for the transfer or simple a serious and
deliberate intention to transfer the ownership. In COMMISSIONER OF
CUSTOMS AND EXCISE V. HANDLES BROTHERS AND HUDSON LTD 1941 369 the
principle was stated as follows by WATERMEYER J.A.,
"If
the parties desire to transfer ownership and contemplate that
ownership will pass as a result of the delivery, then they in fact
have the necessary intention and the ownership passes by delivery. It
was contended, however, on behalf of the appellant that delivery
accompanied by the necessary intention on the part of the parties to
the delivery is not enough to pass ownership; that some recognized
form of contract (a causa habilis, as Voet, 41.1.35, puts it) is
required in addition...I do not agree with that contention. The
habilis causa referred to by Voet means merely an appropriate causa,
that is, either an appropriate reason for the transfer or a serious
and deliberate agreement showing an intention to transfer. "
J.E.
SCHOLTENS in his article titled JUSTA CAUSA TRADITIONIS AND CONTRACTS
INDUCED BY FRAUD, appearing in 1957 SALJ 280 states;
5
"Our
law, following Roman law, distinguishes between contractual relations
or, more generally, the circumstances underlying the intention to
transfer ownership by traditio, and the passing of ownership itself.
...It is, of course, a common place statement that the law relating
to transfer of ownership differs widely in various countries, even in
those which have a Roman law background. Moreover, a similar
terminology may cover divergent doctrines and conceptions. First, an
appropriate contract may forthwith transfer ownership without passing
of possession being a requisite to that effect. For instance, in
England and France ownership of movable property will generally pass
immediately on the conclusion of the contract of sale."
From
the above quoted passages, therefore, it is clear that our law draws
a distinction and treats independently the real agreement (i.e. the
reciprocal intention of the parties) to pass ownership as distinct
from the underlying obligatory transaction which provides a reason
for the transfer of the property and that defects such as error or
fraud in one of these transactions will not affect the validity and
effectiveness of the other. See also DALRYMPLE, FRANK AND FEINSTEIN
V. FRIEDMAN (2) 1954 (4) SA 649 (W) @ 664, PRELLA V. JORDAN 1956 (1)
SA 483 (AD). MCC BAZAAR V. HARRIS AND JONES (PTY) LTD 1954 (3) SA 158
(T).
Applying
this principle to the defendants' case as formulated in the affidavit
resisting summary judgement, the best view in favour of the defendant
that can be taken of his case is that the crown as represented by the
Swaziland National Housing Board resolved or intended to pass the
ownership of the property to a person who had been in occupation of
the property and that the said board acting in the aforesaid
representative capacity though clearly intending at the time of the
conveyancing transaction to pass ownership to the said Albert Lubhaca
Dludlu was operating under a mistake induced by Mr. Dludlu's
misrepresentation to the effect that he (the said Dludlu) was the
occupier of the property at the time. It seems to me that the
misrepresentation or error relates to the attribute of the said
Albert Lubhaca Dludlu as an occupier of the property. Put differently
the misrepresentation relates to the qualifications of the said
Albert Lubhaca Dludlu to receive transfer of the property in terms of
a resolution of the Swaziland National Housing Board as a
representative of the Crown which was the owner immediately preceding
Dludlu in the ownership of the property. The misrepresentation
relates to the process of identification or selection of the
aforementioned Albert Lubhaca Dludlu as the
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intended
transferee. The misrepresentation though affecting the process by
which Mr. Albert Lubhaca Dludlu was identified or selected as the
person to whom the property was to be conveyed or transferred does
not result in a complete absence of an intention to transfer the
property to Dludlu, but actually provides the underlying reason as to
the intention to pass transfer. In other words it does not vitiate
the intention to pass the transfer but it actually elicits or induces
the intention between the crown as represented by the Swaziland
National Housing Board on the one hand and the said Albert Lubhaca
Dludlu that the ownership of the property should pass from the crown
to the said Dludlu. As already observed once there was an intention
that the ownership should pass from the Crown to Mr Albert Dludlu, on
registration of the property into his name the ownership of the
property would pass in accordance with that intention inspite of the
effect that the underlying reason for the transfer, is vitiated by
fraud or more specifically that the selection of Mr Dludlu as the
intended transferee was affected by the misrepresentation, would not
affect the conveyancing transaction, under the abstract system of
property conveyance as discussed above. On that basis it seems to me
that since there is no suggestion that the Swaziland National Housing
Board as a representative of the Crown in the transaction did not
intend that ownership of the property be conveyed or transferred to
Albert Lubhaca Dludlu there is no other basis for saying that the
ownership did not indeed pass and for disputing that the plaintiff
who derived his ownership from the said Dludlu, is the owner of the
property.
Furthermore
even if it can be said that the selection or identification of Mr.
Albert Lubhaca Dludlu as the intended transferee was induced by a
misrepresentation which affected the real agreement in a manner which
renders the transaction voidable, the ownership would have continued
to vest on Mr. Albert Dludlu until the conveyancing transaction would
be set aside as a voidable transaction at the instance of the
Swaziland National Housing Board, or the crown or even possible at
the instance of the defendant himself as an aggrieved party, once it
is shown that the intention to pass transfer or convey ownership of
the property to Mr. Dludlu was induced by the misrepresentation, more
so if the misrepresentation was a fraudulent one, and assuming there
is no innocent third party like the plaintiff who has since received
transfer of the said property from
7
Albert
Lubhaca Dludlu. That is not the same thing as saying that the
misrepresentation affected the real agreement (i.e. the conveyancing
transaction) such that it can be said that the intention to convey
the ownership of the property to Albert Lubhaca Dludlu was absent and
that therefore the conveyancing transaction was void ab initio. In
the circumstances just described the plaintiff would not be the
owner. Similarly, Albert Lubhaca Dludlu would never have acquired
ownership of the property which he could have passed to the
plaintiff. However where the conveyancing transaction was accompanied
by an intention to pass ownership to Albert Lubhaca Dludlu, even
though that intention was induced by misrepresentation or fraud the
transaction would not be void but voidable.
Scholtens
formulates the application of the principle to transactions tainted
by fraud or misrepresentations as follows;
"The
conclusion for our law is that if the defrauded owner intended to
pass ownership although induced to do so by fraud, ownership will
pass to the alienee who in his turn will be able to transfer
ownership to a third party as long as his right of ownership exists.
Whenever there is fraud but no intention to pass ownership on the
part of the transferor, ownership will not pass to the transferee.
Consequently the latter will not be able to transfer ownership to
third parties in his turn. The same applies when the law impedes the
passing of ownership as in the case of prohibited donations between
spouses,"
Similarly
in DALRYMPLE, FRANK & FEINSTEIN supra @ 646 and as quoted with
approval by JTR BIBSON in his SOUTH AFRICAN MERCANTILE AND COMPANY
LAW 4th edition at page 67, it was observed
"A
transaction induced by ... [misrepresentation] may, in some cases, be
void ab initio; in other cases it is voidable only, at the option of
the party...[misled]. Where the ... [misrepresentation] is such that
there is no consensus ad idem, or no consent, the transaction is
void. But where there is consent, even where the consent was obtained
by fraud...[misrepresentation] the transaction is not void but
voidable. There is ample authority for this proposition."
DALRYMPLE, FRANK AND FEINSTEIN V. FRIEDMAN & ANOTHER (1) 1954 (4)
SA (W) AT 646.
Therefore
even if the defendant wishes to argue that the conveyancing
transaction (i.e. the agreement between the Crown on the one hand and
the said Albert Lubhaca Dludlu is
8
voidable
having been induced by the misrepresentation it is only until the
transaction is set aside on that basis that it can be said that the
plaintiff is not the owner.
Finally,
in paragraph seven of the defendants' affidavit resisting summary
judgement, the defendant states that when Albert Dludlu vacated the
property he never disclosed that the property was already registered
in his name. The defendant continues to state that 'it was upon
refurbishing the property and reconnecting electricity supply and
water' in her name that she says she discovered that Albert Dludlu
had sold the property. It is not clear what is meant by
"refurbishing" but in view of the fact that it was not
claimed that useful or necessary improvements were effected and
because no lien of any kind was claimed I will not interpret the
refurbishing as amounting to improvements which would have entitled
the defendant to some lien pending payment of compensation to him by
the plaintiff. Indeed Mr. Maseko did not even attempt to raise such
an argument. In the circumstances no defence is raised in the
defendants' affidavit resisting summary judgement. Accordingly
summary judgement evicting the defendant from portion 14 of Lot 345,
situate in Zakhele Township, Extension No. 2, District of Manzini,
Swaziland and all those in occupation of the premises through her is
granted. The plaintiff is also awarded costs of the action.
ALEX
S, SHABANGU
ACTING
JUDGE
