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IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.35/2000
In
the matter between:
TFOLWAPHI
JANE MKHWANAZI Appellant
And
ENOCK
LWANE MASEKO 1st Respondent
REGISTRAR
OF DEEDS FOR SWAZILAND 2nd
Respondent
THE
MASTER OF THE HIGH COURT 3rd Respondent
SWAZILAND
SAVINGS & DEVELOPMENT BANK 4th Respondent
SARAH
VANGILE MKHATSHWA 5th Respondent
CORAM
R.N. LEON J.P.
P.H.
TEBBUTT J.A.
D.L.
SHEARER J.A.
JUDGMENT
Shearer
J.A.
The
First Respondent as Applicant sought an order for the ejectment of
the present Appellant from the premises known as Lot 374 Ngwane Park
Township, in the district of Manzini. The First Respondent had been
married by civil rights to the late NDODELANA SOLOMON MKHATSHWA who
died on the 9th February 1993. The Appellant had a common law
relationship with the deceased and had two children by him. At the
time of his death and at the time of the application she and her
family occupied the property and had done so from 1989.
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On
the 27th October 1997, the 5th Respondent entered into a written
agreement selling the property to the first Respondent in which her
name appears as "seller". She was, on the lst March 1999,
appointed Executrix Dative to her late husband's estate and Letters
of Administration were issued in her favour by the Master of the High
Court. In the meantime, on the 27th October 1997, a Deed of Sale was
entered into between the 5th Respondent, described as "the
Seller" and the 1st Respondent. She did not herself sign as
"Seller", but one Ngwenya did. It appears that he was an
Estate Agent, A special power of Attorney appears in the papers
nominating and appointing "E.M. Ngwenya" as "Attorney
and Agent" for the 1st Respondent. It may be added that the 1st
Respondent was married to the deceased out of community of property.
The requisite consent of the Master to validate such a transaction by
the Estate could only have been obtained after the appointment of the
Executrix Dative and hence some lime after the execution of the
Agreement of Sale.
This
succinctly sets out the main facts upon which the 1st Respondent
relies in her application, but her locus standi to bring that
application is completely lacking. She has, on the papers, no
interest in the Estate of the Deceased and consequently the relief
which she seeks, which is all concerned with the property asset in
the Estate, is of no legal moment to her.
The
position on the main application is otherwise. An order was sought
against her and she was perfectly entitled to call the status of the
Applicant (now 1st Respondent) into question. The question is whether
the requisite documents validate the sale by the Estate to the 1st
Respondent.
There
were a number of unsatisfactory features about the succession of
transactions and documents which eventually resulted in the
registration of transfer to the First Respondent.
(1) The
Deed of Sale does not reflect that the 5th Respondent was acting in
any capacity other than her personal capacity. Indeed, she had no
power to represent the estate until some 17 months later when she
received her appointment as Executrix Dative. She did not, and could
not, have the appropriate consent of the Master, until her
appointment and therefore
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had
no power to sell the property.
(2) The
Deed of Sale was signed by Ngwenya describing himself as "The
Seller" without indicating any representative capacity. It is
true that the 5th Respondent signed a Special Power of Attorney in
favour of Ngwenya on the 16th September 1997 but at the best for the
5th Respondent this authorised his acting on her behalf and certainly
not on behalf of the Estate. The Respondents sought to rely on this
to establish the effective transfer of ownership to the 1st
Respondent.
The
necessity for the appropriate documents to reflect the representative
capacity of the signatory is clear from a number of cases. One of the
most important of these is Hersch v. Nel 1948(3) S.A. 686 A, and in
particular at 703 in which it was held that an agent should clearly
state in the deed of alienation that he is acting for a named
principal. Parol evidence to prove the identity of an unnamed
principal will be inadmissible see Grossman v. Baruch 1978/4 S.A.
340(w). See also Hamdulay v. Smith N.O. & Others 1984
(3)
S.A.
308 at 316
On
that basis the relevant document was defective since the signatory
was silent as to his capacity, and the sale is void ab initio. There
are other defects in the Deed of Sale. The person signing as seller
had in fact no authority to act for the estate when she signed the
Deed. The claim of the 1st Respondent could only be derived from the
two relevant documents, which were ineffective to create a valid sale
by the Estate to the first Respondent.
Even
if the signatories had the power to act for the Estate, this
deficiency would be fatal to the application since the 1st Respondent
could only derive his claim of action from the Deed of Sale.
In
the Court below the learned Chief Justice relied upon the proposition
that the first respondent was the owner in granting an order for
ejectment. That basic premise was ill-founded, and so consequently,
was the order for ejectment.
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I
propose that the appeal be allowed with costs to the extent of
refusing the grant of an order for ejectment.
The
dismissal of
the counter
application stands.
D.L.
SHEARER J.A.
I
agree
R.N.
LEON J.P.
I
agree
P.H.
TEBBUTT J.A.
Delivered
in open Court on this.. 13th
.day
of December 2000.
