IN
THE HIGH COURT OF SWAZILAND
CASE
NO.2409/96
IN
THE MATTER BETWEEN:
BENSON
ZULU APPLICANT
AND
P.J.
MPUNGOSE N.O. RESPONDENT
CORAM: MASUKU
J.
For
Applicant: MR
P.R.
DUNSEITH
For
Respondent: MR C.S. NTTWANE
JUDGEMENT
28/01/2000
In
this application, filed in the long form, the Applicant prays for
inter alia:
a) Directing
the Respondent to sign all documents necessary to pass transfer of
certain property known as Portion 56 of Lot No.72, Sidwashini
Township, Mbabane to the Applicant within 21 days, failing which
authorising and directing the Registrar of the High Court to sign
suck documents forthwith.
b) Costs.
The
Applicant is an adult male of Mbabane, who sues the Respondent in his
capacity as Executor Dative in the Estate of the late Alpheus
Mlangeni. In the Founding Affidavit, the
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Applicant
states that the deceased, Alpheus Mlangeni, during his lifetime sold
the above named property to the Applicant for the amount of E5,
000.00 (Five Thousand Emalangeni).
The
Applicant then donated the said property to one Busisiwe Mlangeni
(Born Zulu). The Applicant states further that the deceased and the
Applicant signed all the necessary transfer documents and which
documents were subsequently lodged with Attorneys Robinson Bertram
and Keyter for purposes of lodgement and registration in the Deeds
Registry. The property could not transferred because of difficulty in
raising transfer duty and the deceased died before the transfer was
fully effected.
The
Applicant's prayer is for an Order compelling the Respondent, who
refused or neglected to pass transfer to the Applicant to do so,
failing which the Registrar of the High Court be authorised and
directed to sign all necessary documents to effect the transfer.
Annexed to the Founding Affidavit are the Dead of Sale, dated 2nd
April, 1992, Power of Attorney by the deceased appointing Attorneys
from Robinson Bertram & Keyter to transfer the property to the
Applicant also dated 2nd April, 1992; the Deed of Transfer in respect
of the property in question and a Declaration of Donor, in terms of
which the Applicant on account of special affection and love for his
cousin Busisiwe Nelly Mlangeni, donated the property in question to
the said Busisiwe Elly Mlangeni.
The
Respondent's opposition to the relief sought consisted firstly of a
point in limine in respect of which it was correctly stated that the
Master of the High Court had neither been cited nor served with the
process in accordance with the requirements of Rule 6 (23) of the
High Court Rules as amended.
By
agreement inter paries, this point in limine was waived and the
Master of the High Court was served. It is imperative to state that
notwithstanding service, the Master did not file any papers in
opposition to the relief sought.
The
main arguments raised by the Respondent are two pronged. Both appear
at paragraph 9.1, 9.2 and 9.3, which read as follows:-
I
admit that I have refused to pass transfer to the Applicant. I submit
that my refusal was based on the following grounds :-
9.1. I
have no independent knowledge of alleged sale between the Applicant
and
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the
deceased.
9.2. I
am rather suspicious because of the allegations contained in
paragraph 6 of my opposing affidavit which allegations I pray be
regarded as if herein inserted. This is compounded by the fact that
the Applicant who claims to have donated the property is a relative
of Busisiwe (the Donee).
9.3 The
power of attorney to pass transfer which should indicate the deceased
's intention to pass transfer reflects a different purchase price for
the property allegedly sold to the Applicant.
The
first ground is that the Respondent states that he was not personally
aware of the sale between the Applicant and the deceased. There is in
my view no reason why the Respondent should have had independent
knowledge of the transaction since it took place before the
Respondent assumed the position of Executor Dative. The Applicant
has, in support of his allegation of the sale annexed a Deed of Sale,
which was signed by the deceased. The Respondent does not deny the
deceased's signature thereon nor does he attack the validity of the
Deed of Sale. In my view, the Respondent's personal knowledge or
otherwise of the sale is neither here nor there. It is irrelevant in
the light of what I have stated above. There is no substance in this
submission.
The
Respondent also contends that there is some suspicion regarding the
propriety of the sale because the Respondent alleges in paragraph 6
that the said Busisiwe Elly Mlangeni was not married to the deceased
but to a Solomon's. The Respondent further contends that what
exacerbates the situation is that the Applicant is a relative of the
donee.
In
response to this submission, Mr Dunseith correctly submitted, in my
view, that whether the deceased was married to the deceased is an
irrelevant consideration in view of the Applicant's claim.
The
Applicant, was sold property by the deceased during his lifetime but
unfortunately, the deceased died before all the necessary documents
were hence Applicant an order compelling signed seeks the Executor
dative to do so. This has no connection with the marriage of the
deceased to the donee. I did not understand Mr Ntiwane to seriously
contend this. In the premises, I hold that the question of the
donee's marriage to the deceased is also irrelevant to the relief
sought.
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Another
issue raised by the Respondent is contained in paragraph 9.3. of the
Answering Affidavit, where the Respondent states that the power of
attorney to pass transfer, which should indicate the deceased's
intention to pass transfer reflects a different purchase price for
the property allegedly sold to the Applicant. This, according to Mr
Ntiwane smacks of fraud and should dissuade the Court from granting
the Applicant's prayers in the Notice of Motion.
The
Deed of Sale reflects that the purchase price of the property was to
be E5,000.00 whereas the power of attorney to pass transfer and
declarations of donor and donee reflects a price of value of
E30,000.00. This is what, according to the Respondent smacks of fraud
and bears close scrutiny.
The
discrepancy is explained by the deceased's conveyancer, Mr S.B.
Mnisi, in an Affidavit annexed to the Replying Affidavit. According
to him, the discrepancy in the figures arose because the deceased had
evinced a clear intention that the property be registered in the name
of the donee and further that it should not form part of the joint
estate. For that reason, the deceased fixed the nominal price and
value of E5,000.00, which was its value when he purchased it some
years earlier.
Thereafter,
the Accountant
-
General
raised a query regarding the price and value of the property as the
basis for calculation of transfer duties. This necessitated the
revaluing of the property by the deceased. The property was revalued
at E30,000.00. Mr Mnisi states that he then proceeded to prepare the
transfer documents on the basis of the latter valuation but no
alteration was made to the Deeds of Sale and Donation to reflect the
revised value of the property.
In
response to this, Mr Ntiwane, stated the explanation was less than
convincing and does not find support in the dates reflected in the
documents. Mr Ntiwane correctly argued that Deed of Sale, Power of
Attorney, to Pass Transfer all bore the date 2nd April, 1992 whilst
the Declarations of Donor and Donee both bore the date 3 rd April,
1992. The dates set out above do not therefor support Mr Mnisi's
explanation of the discrepancy.
In
reply, Mr Dunseith, in a spirited argument stated that the suspicion,
if any, must be brought to the correct door. He argued that if any
suspicion arises, it should not work against
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the
Applicant who, in his claim relies on the Deed of Sale, including the
price and value there in inscribed. He argued further that the
Applicant was an innocent purchaser and should not be visited with
the mistakes, omissions or sins of the deceased and his conveyancers.
According to Mr Dunseith, if the argument of a suspicion would be
considered it would mean that the deceased defrauded his own estate
which is clearly laughable. Equally laughable would be bringing the
blame to Mr Mnisi's door, who according to his position in the matter
had nothing to gain from the whole transaction.
In
as much as I agree that no plausible explanation for the discrepancy
in the documents has been disclosed, that does not and should not
affect the Applicant's rights as an innocent purchaser.
Whatever
the discrepancies that are, resulted from mistakes of the deceased
and his conveyancer.
Furthermore,
I note that Mr Ntiwane intimated that a fraud might have been
perpetrated, regard being had to the discrepancy.
I
must hasten to mention that it has been stated time and again that
charges of fraud are, in their nature of the greatest gravity and
should not be lightly made, and when made, should not only be made
expressly but should be formulated with the precision and fullness
demanded in a criminal case. See SHISELWENI INVESTMENTS (PTY) LTD v
SWAZILAND DEVELOPMENT AND SAVINGS BANK CASE NO.2391/96 (unreported
per Masuku J.) at page 7 and the cases therein cited. In casu, no
relevant allegations and particulars of the fraud alleged have been
made. Clearly, neither the Applicant nor the donee can be suspected
of any foul play in this transaction. For that reason, I am of the
view that this challenge does not disentitle the Applicant to its
prayers.
Mr
Ntiwane also argued that if the donee was married to the deceased as
alleged by the former, then the property should accordingly vest in
the joint estate since the Deed of Donation does not exclude
community of property in express terms. This is not correct because a
cursory glance at paragraph 7 of the Deed of Donation records as a
condition that the properties are to be excluded from any community
of property. No further mention needs be made of this point therefor.
I
do not consider it necessary to consider the issue whether or not the
donation is in this case prohibited because both parties were ad idem
that this donation was voidable but could be
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declared
void only at the instance of a donor or his spouse or by the donor's
creditor. It is however worthy of mention that
H.R.
Hahlo "The South African Law of Husband and Wife", 5th
Edition, Juta & Co., page 148, states that donations between
spouses stante matrimonio are no longer prohibited. At page 149, he
states that like any donation, an executed donation between spouses
is liable to be set-aside at the donor's instance if it was induced
by duress, fraud or mistake. In the donor's insolvency, it is liable
to be set aside as a disposition without value if the provisions of
Section 26 of the Insolvency Act, 1936 are satisfied. I am however
mindful of the fact that in casu, the donor is the Applicant and not
the deceased.
In
view of the aforegoing, I am of the view that the Respondent has
failed to set out any cogent reasons why prayer (a) of the Notice of
Motion should not be granted. I accordingly grant prayer (a) as set
out in the Notice of Motion.
On
the question of costs, Mr Ntiwane urged the Court to order each party
to bear its own costs in the event it found for the Applicant because
the Respondent was bona fide in its opposition. Mr Dunseith on the
other hand argued that normally all Respondents are bona fide in
their opposition but that does not constitute a good ground for
departing from the ordinary rule that costs should follow the event.
I agree.
I
find no reason for departure from the normal rule in this case. The
Respondent may have been bona fide in his opposition but he was bona
fide wrong. Costs should follow the event.
T.S.
MASUKU
JUDGE
