SECOND BUYER AND DOCTRINE OF NOTICE
Mngomezulu NO v Mokoena [2022] ZAGPJHC 178
Ms Mngomezulu currently resides at a property and has done so since the death of her mother. She contends that in the year 2000 her mother bought the property in terms of a written sale agreement and the full purchase price was paid later that year, but the property was not transferred to her mother, because of the non-cooperation of Ms Mofokeng. In 2020 Mr Mokoena bought the property from Ms Mofokeng and the property was transferred into his name. He then brought an eviction application against Ms Mngomezulu. The executrix and Ms Mngomezulu approached the court seeking to cancel the title deed registered in the name of Mr Mokoena as well as the bond with the bank.
Strydom J discusses factual dispute and the issues with the support of the applicants’ claim; the doctrine of notice; and that a first buyer of property can claim transfer of a property if a second buyer, with knowledge of the previous sale continued to buy the property, or if the second buyer subjectively foresaw the possibility of the existence of the first purchaser’s personal right to enforce a valid sale agreement.
The court finds that the probabilities were that Ms Mofokeng told Mr Mokoena that Ms Mngomezulu was a tenant. It is not required of a buyer to engage in due diligence on the occupancy, as contended by the applicants. Furthermore, a claim to transfer an immovable property into the name of another is one for the delivery of goods and constitutes a “debt” for purposes of the Prescription Act 68 of 1969, so the deceased’s right to obtain transfer of the property had become prescribed. The application is dismissed.
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DISABILITY AND REASONABLE ACCOMMODATION
Damons v City of Cape Town [2022] ZACC 13
Mr Damons was a firefighter but his employer (the City) disregarded safety measures during a fire drill and there was an accident that permanently disabled him, such that he cannot successfully complete a physical assessment. He was transferred to do administrative and educational work. When he applied for advancement to the position of senior firefighter, he requested the City to relax the physical fitness requirement, but his application was refused.
The Labour Court found that applying the advancement policy to Mr Damons in a way that prevented him from advancing due to his disability amounted to unfair discrimination in terms of s 6(1) of the Employment Equity Act. A factor was that the City caused Mr Damon’s disability.
The Labour Appeal Court focused on the inherent requirements of the job and overturned the Labour Court’s judgment. The court noted that Mr Damons could not perform the essential tasks of an active firefighter and it was not in the public interest to have firefighters who were not capable of dealing with the outbreak of fires.
Majiedt J discusses the advancement policy that applies to operational firefighters involved in active duties; Mr Damons’ case that it is unfair discrimination for the City to refuse to advance him to the post of senior firefighter and to refuse to waive the requirement of physical fitness contained in the policy; and whether physical fitness is an inherent requirement of the job of a senior firefighter.
The court finds that the city has reasonably accommodated Mr Damons, not in the post of a senior firefighter to which he seeks to be advanced, but in an alternative post. He is excluded from the fire and rescue section as he cannot meet the inherent requirement of physical fitness. This is a complete defence to a claim of unfair discrimination.
The appeal is dismissed.
* Note Pillay AJ (minority) from [1]-[109].
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ANTI-DISSIPATION INTERDICT FOR ARREAR MAINTENANCE
SR v DR [2022] ZAGPJHC 172
The father is in arrears of around R200,000 for maintenance for his two children that is due under a divorce order. The father contends that it is through no fault of his own, having been retrenched from formal employment, leaving him in dire financial straits. The mother (ex-wife) is of the view that he is busy liquidating his assets, whereafter he will likely sequestrate himself and claim that the cash was used to pay off other debts. Then there will be no chance of her recovering any of the arrear maintenance. In an opposed urgent application, she applies for a preservation order on the proceeds of the sale of immovable property by the father.
Adams J discusses urgency and that the mother fears that if the net proceeds from the sale of the father’s property is paid out to him, he will not use any of that money to pay the arrear maintenance; that she has established a prima facie right to the proceeds; the Knox D’Arcy v Jamieson case on the nature and effect of anti-dissipation interdicts; that the mother will suffer irreparable harm otherwise, because the father has made it clear that he does not regard as priority his maintenance obligations to the children and views his debts to his family as enjoying preference.
It is ordered that on transfer of the father’s property the net proceeds are to be paid to the attorneys to be held in trust pending the calculation of the exact amount of the arear maintenance payable to the mother.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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