The case attached is an opposed application by the applicant for interdictory relief against the first and second respondents in relation to his alleged ownership of immovable property in Zakariyya Park, Johannesburg (‘the property’). The first respondent acts herein in his official capacity as the duly appointed Executor in the deceased estate of the late Audrey Huma, who, according to the first respondent, is the true owner of the property, the full Deeds Office description of which is: Erf [….], Zakariyya Park Extension 4 Township, measuring 428 square meters, Registration Division IQ, Gauteng Province. The said property is at present and has been at all times material hereto registered in the name of the applicant. The second respondent is the bondholder in respect of the property, but the bond is presently paid up, which probably explains why the second respondent, although the application appears to have been properly served on it, plays no part in this litigation.
It bears emphasising that this agreement in terms of which the deceased had ostensibly agreed to hand over to the applicant, on a silver platter, any and all of her rights in and to the property in question, was never reduced to writing. What was however reduced to writing is an agreement of settlement concluded between the applicant and the deceased on 24 November 2008 when they got divorced from each other by a decree of the Johannesburg Central Divorce Court. Before their divorce on 24 November 2008, the applicant and the deceased were married to each other in community of property and the property in question formed part of their community estate, although it was registered only in the name of the applicant, as is still the case to date. All of the a foregoing is common cause between the parties. What is more is that the agreement of settlement was also made an Order of Court, which order remains extant as we speak. In terms of the said agreement of settlement, which, as indicated, was made an order of Court, the deceased was ‘to retain’ the property, which she then did, although she never had it registered into her name.
The applicant alleges that a verbal agreement was entered into during April 2018 between himself and the deceased, in terms of which the deceased had handed back to him the property and all rights in and to the said property, including the rights to occupy and use same. He was also required, pursuant to this verbal agreement, to take over any and all responsibilities relating to the property, including the payment of the monthly instalments on the mortgage bond, which, so the applicant claims, had by then fallen into arrears.
[7]. It is therefore common cause between the parties that up to about 2018, the deceased was the owner of the property and had since 2008 been entitled to have the said property transferred into her name. This was however never done for reasons which are not altogether clear from the papers. The only dispute between the parties is therefore whether such ownership of the property was transferred to the applicant, as alleged by him, during April 2018.
Ruled
The first difficulty faced by the applicant is s 2(1) of the Alienation of Land Act, Act 68 of 1981, which provides as follows:
‘2 Formalities in respect of alienation of land
(1) No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority’.
[9]. The oral agreement, as alleged by the applicant, is therefore of no force or effect.
[10]. That, in my view, is the end of the applicant’s application.
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Any comments would be appreciated.
Allen West
TONKIN CLACEY PRETORIA
012 346 1278
