REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1077/2014

In the matter between:

MANUEL SIETA TIAGO NZIANGAPLAINTIFF

and

SILVITY MUNGINGUISSY CARLOS FORTUNATO 1ST DEFENDANT

GRACIANA PEREIRA DO AMARAL GOURGEL2ND DEFENDANT

MONTELEONE PROPERTY THIRTY THREE CC3RD DEFENDANT

THE REGISTRAR OF DEEDS4TH DEFENDANT

Neutral citation: Zianga v Furtano (I 1077-2014) NAHCMD 190 (14August 2015)

Coram:MILLER AJ

Heard:6 July 2015

Delivered:14 August 2015

ORDER

  1. The exception is dismissed with costs, such costs to include the costs of two instructed and one instructing counsel.
  1. The matter is postponed to 27 August 2015 at 15h30 for a status hearing.

JUDGMENT

MILLER AJ:

[1]This is an exception taken by the first and third defendants (“the excipients”) to the plaintiff's amended particulars of claim. In it the plaintiff relies onagreements with the first defendant for the relief sought against the defendants.

[2]The plaintiff allegesthatthe first defendantand plaintiff concluded an oral agreement in terms of which the formerwas to act as an agent of the latter.In the amended particulars of claim, the plaintiff claims that the first defendant, in the course of her employment with the plaintiff,acquired immovable properties on behalf of the plaintiff and that she did in two ways;namely one property was purchased outright in her name (and not in the name of the plaintiff) and the other was acquired through the acquisition of a members’ interest in a close corporation owning property.

[3]The plaintiff further alleges that he complied with his obligations in terms of the agreements, but that the fist defendant breached her obligations in terms of the agreements by failing to register the immovable properties in his name. The further allegations are that the first defendanthad transferred the property situated at Hochland Park to the second defendantand in the process of transferring her members’ interest in the third defendant to the second defendant.It is in such premises that the plaintiff seeks for the various orders against the defendants.

Exception

[5]On 3 March 2015, the first and third defendantsexcepted to the amended particulars of claim of the plaintiff on six stipulated grounds.

[6]At the inception of the hearing, Mr Tötemeyerwho appeared with Mr Akweendaon behalf of the excipients informed this Court that theonly issue that falls to be determined is the first leg of the exception which is the second ground of the exception and that the othergrounds are no longer pursued. I now deal with the remaining ground of the exception.

The parties' submissions

[7] This ground of exception stems from basis that the plaintiff’s cause of action is bad in law, in view of the statutory embargo to such claims contained in s 2of the Alienation of Land Act, Act 68 of 1981. Section 2of the aforesaid Act reads as follows:

“No alienation of land after the commencement of this section shall, subject to the provision 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.’

[8]Section 2(1) of the Act provides inter alia that a deed of alienation shall be signed by the parties thereto or by their agents acting on their written authority. In this context for a transaction to assume the status of a contract of sale of the property, the agent is required to be authorised in writing by the principal to sign the deal on his (the principal’s) behalf.

[9]During argument Mr Tötemeyer on behalf of the excipients made following submissions. It is clear that the second groundof exception relates to paragraphs 6.4 and 6.5 of the amended particulars of claim and that the relevant allegations are that:

‘6.4During 2012- the exact date being unknown to the plaintiff – and at Launda, Angola, plaintiff and first defendant, both acting personally, concluded a further oral agreement, the material terms of which were that:

6.4.1first defendant would locate a large and more suitable property for herself and their children to reside in Windhoek as the Monteleone property was no longer convenient for its intended purpose;

6.4.2plaintiff would pay for the purchase of the property and become the owner thereof;

6.4.3first defendant would attend to all the necessary negotiations and arrangements for the purpose of the property and sign all documents on behalf of the plaintiff.

6.5Acting in terms of the second agreement, during or about June 2012 first defendant purchased immovable property, namely Erf 1215 (a portion of Erf 604) Hochland Park, Windhoek on behalf of plaintiff who paid the full purchase price in respect thereof”

[10]Counsel also submitted that it is clear from the pleadings cited above that the plaintiffand the first defendant concluded an oral agreement in terms of which the later will act as an agent of the former. In terms of this oral agreement the first defendant negotiated and concluded a sale agreement of an immovable property in Hochland Park, allegedly on behalf of the plaintiff.

[11]The excipients however allege that the contract of sale of immovable property, did not comply with the requirements set out in s 2(1) of the Act. Counsel for the excipientsargued that when she concluded the sale agreement, the first defendant would have acted as agent for the plaintiff, in terms of s 2(1) of the Act, and therefore required written authorisation from the plaintiff to do so. This did not happen.

[12]It wassubmitted that for the abovementioned reasons the contract of sale of the property was null and void and of no legal force or effect by virtue of non-compliance with s 2(1) of the Act.

[13]Moreover, it is also clear that the fraud relied on by the plaintiff had nothing to do with the agency agreement. In fact, the allegations of fraud are directed against the cession agreement which is not the focus of this exception.

[14]In view of the stated facts, counsel submitted that the exception should be upheld with costs.

[15]However, Mr Frank who appeared with Mr Maasdorp on behalf of the plaintiff claims that there is no substance in this argument. Counsel commenced their submissions by pointing out that on the pleadings as they stand the first defendant was the agent of the plaintiff and acted as such when she purported to purchase the land and on that basis alone is actually invalid. According to counsel, the whole basis of seeking the return of the land to the plaintiff is to have the land reregistered in the name of the first defendant who, as the plaintiff’s agent, would then be compelled to transfer the land to the plaintiff as she never was entitled to have the land registered in her name in the first place.

[16]It was submitted on behalf of the plaintiff that a distinction is made between the underlying agreement and the real agreement giving rise to transfer. The invalidity of the latter agreement has no bearing on the validity of the real agreement. If there is a serious intention to transfer ownership, ownership passes to the transferee, who can in turn validly pass transfer to a third party. The original owner in such case loses ownership of his thing and he has in appropriate circumstances only a personal action’.Unless the real agreement is attacked, the transfer of the property cannot be assailed. In this regard counsel referred me to the decisions inOshakati Tower (Pty) Ltd v Executive Properties cc and others[1] and Legator Mckenna Inc and another v Shea and Others.[2]

[17]Counsel submitted that is why the real agreement is attacked by the allegations that the first defendant, despite ceding rights to the property and handing over the title deeds of the said property to the plaintiff, acted in a fraudulent manner by presenting to the Registrar of Deeds that the original deeds had been lost or stolen so as to get a new title deed so as to effect the transfer and why the allegations as to the false information in the affidavit are necessary. The plaintiff therefore alleges that the actions by the first defendant to effect the transfer, is right at the crux of the whole case of the plaintiff when it comes to the attack on the real agreement. Counsel further submitted that once the real agreement is attacked, relying on the agency agreement to with the first defendant, the plaintiff will then claim that the property in question is mine, it was never yours and here is the evidence.

[18]Counsel concludes that for purposes of the exception, the court must accept the allegations as they are in the particulars of claim and there is no merit in the exception and should be dismissed with costs.

[19]It is a cardinal principle in dealing with exceptions that if evidence can be led, which disclosed a cause of action alleged in the pleading, that particular pleading is not excipiable. Thus, a pleading is excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. See July v Motor Mehicle Accident Fund 2010 (1) NR 368 (HC). It is for the excipient to satisfy the court that on all reasonable constructions of the plaintiff’s particulars of claim as amplified and amended and on all possible evidence that may be led in the pleadings, no course of action is or can be disclosed.

[20]It is clear in this instance from the plaintiff’s pleadings that it is alleged that the first defendant breached the agency agreement as a result of which she was able to enter into a deed of sale in respect of Erf 1215 (a portion of Erf 604) Hochland Park, Windhoek. The real agreement was concluded due to the fraudulent misrepresentations of the first defendant. During the course of that transaction the first defendant did not act as the agent of the plaintiff. She entered into the sale agreement as a principal. It follows in my view that the requirement that she had to be authorised in writing falls away. The deed of sale was valid. In acting as she did, she breached agreement she had with the plaintiff, but that does not assist the exception.

[21]Conclusion

For the reasons set out above, I am of the view that the exception was well not taken and should be dismissed. I therefore make the following order:

1.The exception is dismissed with costs, such costs to include the costs of two instructed and one instructing counsel.

2.The matter is postponed to 27 August 2015 at 15h30 for a status hearing.

______

Miller, AJ

Acting

APPEARANCES

PLAINTIFF: TJ Frank SC assisted by RL Maasdorp

Instructed by Ellis Shilengudwa Inc, Windhoek

FIRST & THIRD DEFENDANT: R Tötemeyer SC assisted by S Akweenda

Instructed by Murorua & Associates, Windhoek

[1] 2009(1) NR 232 (HC).

[2] 2010(1) SA 35 (SCA).