THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

No precedential value

Case No: 515/2009

In the matter between:

ROSEMARY M MATHAVHA NO

Appellant

and

ZIBA SIBEKO

Respondent

Neutral citation:  Mathavha v Sibeko (515/09) [2010] ZASCA 100 (7 September
2010)

Coram:
Conradie, Maya, Shongwe, Tshiqi JJA and K Pillay AJA

Heard:
24 August 2010

Delivered:
07 September 2010

Summary:
Sale of land – first sale found to be valid – second purchaser bought
and took transfer of property with knowledge of first sale -- ordered to transfer
property to estate of first purchaser.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: North Gauteng High Court (Pretoria) (Preller J sitting as court of
first instance):
The appeal succeeds with costs. The order of the court a quo is set aside and
replaced by an order reading as follows:

‘1.
The sale agreement between the Municipality and the deceased dated 18
November 2000 and annexed to the particulars of claim is declared to be valid;
2.
The respondent is directed to take all necessary steps to transfer erf 1577,
Extension 9,  Lebohang, Leandra to the estate late M M Ramarope.
3.
In the event that the respondent fails to take such steps, the deputy sheriff is
authorised to sign all necessary documents and take all other necessary steps to
ensure the transfer of erf 1577 Lebohang to the estate late M M Ramarope.
4.
The respondent is to pay the costs of the application.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________

CONRADIE JA (MAYA, SHONGWE, TSHIQI JJA and K PILLAY AJA concurring)

[1] The appellant is the executor of the estate late M M Ramarope (the
deceased) who on 18 November 2000 concluded with the predecessor of the Govan
Mbeki Local Municipality a written contract in terms of which he bought from the
Municipality a property described as Erf 1577, Extension 9, Lebohang, Township,
Leandra for R135 000. The Municipality, cited as the second defendant, has abided
the judgment of the court.

[2] Six years later on 20 November 2006, the respondent, for R171 114, acquired
from the Municipality the same property (which had, through no fault of the
deceased, not yet been transferred to him) in terms of a written contract dated 20
November 2006 and took transfer of the property on 16 May 2007.

[3] The trial was heard as a stated case by the North Gauteng High Court which
granted leave to appeal against its judgment dismissing the appellant’s claim for
transfer of the property from the respondent.

[4] The stated case records the consensus of the parties on the following:
‘At all material times and in particular when the First Defendant purchased the property the First
Defendant knew that a valid and binding sale agreement existed between the Plaintiff and the Second
Defendant  .  .  .’.

[5] This agreement  really disposes of the matter.  Mr Muller for the respondent
did not argue that once the respondent knew of the earlier (valid) sale, he would not
be obliged to transfer the property to the appellant. The decision not to defend the
conclusion of the court a quo that the respondent had been shown to be ‘dishonest
(if not fraudulent)’ was a wise one. Associated South African Bakeries (Pty) Ltd v
Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere,1 ‘saw the demise’, as Prof
Gerhard Lubbe puts it,2  ‘of the fraud construction’.

[6] The stated case does the respondent no injustice. In 1988 the Municipality
put the property out to tender. It would seem that the respondent tendered for the
property in competition with the deceased.

[7] According to the stated case the Municipality in 1998 ‘resolved to
recommend’ that the property be awarded to the respondent. Of course, a resolution
by a local authority to enter into a contract is no more than an instruction to its

1 1982 (3) SA 893 (A) at 910A–911B.
2 A doctrine in search of a theory: reflections on the so-called doctrine of notice in South African law,
1997 Acta Juridica 246.

officials to act in the manner authorised by the resolution. Before the official has
concluded the authorised contract, the local authority acquires no rights and incurs
no obligations.  In particular, the resolution could not (as was at one time thought)
have created an option contract between the Municipality and the respondent. Quite
apart from that, the offer comprising  such an ’option’, to be valid, would have had to
be in writing so that a written contract might be constituted by acceptance of the
offer.

[8] After the Municipality had resolved to enter into a sale agreement with the
respondent, but before it had entered into any legal relationship with him, it would
appear that it, the respondent and the deceased arranged for the deceased to buy
the property.

[9] The respondent maintains that he then orally ceded his right to purchase the
property to the deceased but, as I said above, he had not acquired any right that
might be capable of cession and, anyway, interest in land can only be ceded if the
cession is evidenced in writing. When the deceased bought the property he could
not have done so as the cessionary of any right acquired from the respondent.

[10] The written cession concluded between the deceased and the respondent on
27 November 2000 is a sadly defective agreement. In the first place, it was
concluded on a date after the sale between the Municipality and the deceased when,
assuming that any right capable of cession had been created,  there was none left to
cede; in the second place, the consent of the municipality (which had not been
obtained) was required for the validity of the cession.

[11] Clause 10 of the cession contains a curious provision:
‘In the event of the cessionary passing away before transfer of the property in the name of the
cessionary this agreement will lapse and any amount paid by the cessionary in terms hereof will be
refunded to the executor of his estate.’

[12] Leaving aside the consideration that it is futile to attempt to extract a sensible
meaning from the clause,  it falls to the ground with the remainder of the cession.
One would have thought that the appellant would under these circumstances on the

basis of unjustified enrichment, have been entitled to repayment of the R30 000 paid
in terms of the cession. However, there is no claim for this amount in the summons
and Mr Smit for the appellant did not press it.

[13] The stated case contains a tender to pay to the respondent the purchase
price that he had paid to the Municipality and the costs of transferring the property to
the plaintiff. We are obviously bound by the tender which seems to be a sensible
solution to the dilemma in which the parties find themselves.

[14] Since the municipality is not a party to the stated case acknowledging the
validity of the agreement between it and the deceased, it would be best to declare
that agreement to be valid.

[15] The Registrar of Deeds Pretoria was cited as a party but the notice of appeal
does not mention him as a party so that it is not clear whether he has had notice of
these proceedings or not. In the circumstances the order cancelling the registration
of transfer of erf 1577 cannot be granted but such an order would in any event be
superfluous.

[16] The appeal succeeds with costs. The order of the court a quo is set aside and
replaced by an order reading as follows:

‘1.
The sale agreement between the Municipality and the deceased dated 18
November 2000 and annexed to the particulars of claim is declared to be valid;
2.
The respondent is directed to take all necessary steps to transfer erf 1577,
Extension 9, Lebohang, Leandra to the estate late M M Ramarope.
3.
In the event that the respondent fails to take such steps, the deputy sheriff is
authorised to sign all necessary documents and take all other necessary steps to
ensure the transfer of erf 1577 Lebohang to the estate late M M Ramarope.
4.
The respondent is to pay the costs of the application.’

_____________________
J CONRADIE
JUDGE OF APPEAL

APPEARANCES

APPELLANTS:

M Smit

Instructed by Stabin Gross & Shull, Johannesburg

Claude Reid Inc, Bloemfontein

RESPONDENTS:

G C Muller SC (with him N A R Ngoepe)

Instructed by TMN Kgomo & Associates, Pretoria

Symington & De Kok, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  07 SEPTEMBER 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

MATHAVHA v SIBEKO

Two tenderers, the late Mr M M Ramarope and Mr Ziba Sibeko, competed for the purchase
of an immovable property from the predecessor of the Govan Mbeki Municipality. By
arrangement between them and the Municipality, the property was sold to one of them. After
the death of the purchaser the other tenderer, contending that the sale was invalid, bought and
took transfer of the same property from the Municipality.

The Supreme Court of Appeal found the sale to the first purchaser to have been valid; the
second purchaser was consequently ordered to give transfer of the property to the first
purchaser’s estate.

---ends----