In my opinion, when the SCA dismissed the appeal, it had in mind an order that was, in part, materially different from that actually granted by the High Court. In paragraph  of the SCA Judgment and with reference to Schmidt Bou, it is stated that: “In broad outline it sought an order consisting of four distinct elements……”. The said elements are accurately set out in Italics in Mistaken transfer by Mr Nkuba Ngoasheng. In the same aforementioned paragraph, it is stated that: “When the matter came before Louw J, he granted the application, in the exact terms sought, with costs.” (Emphasis added). However, paragraph  of Western Cape High Court Judgment reads as follows:
“[49} Die volgende bevel word gemaak:
Dit word verklaar dat die applikant die eienaar is van:
Die Restant van Erf 3117, Sedgefield
Gehou kragtens Titelakte nr. T38243/2005 Groot: 5830 vierkante meter
In die Munisipaliteit van Sedgefield Wes-Kaap Provinsie (hierna genoem die onroerende eiendom’);
Transportakte nr. T38243/2005 word gerektifiseer deur die beskrwing van die eiendom wat oorgedra word op blaadsy 2 daarvan te vervang met die volgende beskrywing:
Erf 4675 (‘n gedeelte van Erf 3117) Sedgefield, In die Munisipaliteit en Afdeling van Knysna, Wes-Kaap Provinsie Groot: 1,3965 (een komma drie nege ses vyf) hektaar, Soos aangedui op plan SG No. 6615/2004;
- Die verbandakte B113823/07 wat oor die onroerende eiendom passeer is, word hiermee gekanselleer;
- Die Registrateur van Aktes word gemagtig en gelas om uitvoering te gee aan die bevele vervat in paragrawe 1.2 en 3 van hierdie bevel;
- Die Eerste, Tweede, Derde. Vierde en Vyfde Respondente word gelas om die koste gesamentlik en afsonderlik te betaal.”
It is noteworthy, in particular, that, whereas the Court Order sought related specifically and exclusively to the mother erf, which, at the time of the Order, was “an immovable property ………….registered in the deeds registry, Cape Town, in the name of Innova”, by requiring a rectification, whereby the Deed of Transfer, by which Innova held the mother erf (“the Innova Title Deed”), to reflect Schmidt Bou as the true owner of the mother erf, in terms of the actual Court Order, the rectification ordered consisted in the amendment of the Innova Title Deed by the substitution therein of Erf 4675 (a portion of Erf 3117) (“the Portion”) for the mother erf.
According to Mr Johan Gijsbers, Schmidt Bou became the registered owner of the Remainder of mother erf (“the Remainder”) by a 2013 Title Deed (“the 2013 Title Deed”).
It is submitted, therefore, that the SCA should have altered the High Court order in part.
According to Messrs Johan Gijsbers and Dudley Lee, the 2013 Title was a transfer in terms of section 33 of the Deeds Registries Act (“the DRA”). In my opinion, such transfer was (i) neither authorised in terms of the Court Oder (ii) nor the result of a petition to Court as envisaged in the whole of section 33 of the DRA. Section 33 (1) of the DRA provides that: “Any person who has acquired in any manner, other than by expropriation, the right to the ownership of immovable property registered in the name of any other person and who is unable to procure registration thereof in his name in the usual manner and according to the sequence of successive transactions in pursuance of which the right to the ownership of such property has devolved upon him, may apply to the court by petition for an order authorising the registration in his name of such property.” (Emphasis added).
Moreover, it is clearly stated in paragraph 11 of the Judgment (SCA Judgment) that ……. “Innova, as a matter of law, never became the owner of the Remainder, despite entry in the deeds registry. Schmidt Bou thus remained the owner. In consequence the deed of transfer does not reflect the correct state of affairs. Thus understood, the rectification sought will not constitute any delivery, symbolic or otherwise, of the property. Nor will it change the rights and obligations of the parties: it will simply correct the erroneous reflection of those rights.”
Section 43 (5)
The registration of transfer of the mother erf to Innova was invalid because, (i) as stated in the SCA Judgment, “Innova, as a matter of law, never became the owner of the Remainder” and (ii) it (the transfer) entailed the transfer the Portion in contravention of section 43 (5) of the DRA since such transfer was not from a Certificate of Registered Title – a harsh reality, which could not be wished away. In the circumstances, the rectification ordered by the Court was erroneous also.
The aforementioned anomalies could have been avoided if the Court had ordered cancellation of the Innova Title Deed as contemplated in section 6 of the DRA – refer to paragraph 26 on page 9 of Kuzwayo v Estate late Masilela (28/10)  ZASCA 167 (1 December 2010) also, in which it was held that: “The court has inherent power, implicit in s 6 of the Deeds Registries Act, to order cancellation of rights registered in the Deeds Register: …………….” The aforesaid cancellation would have resulted in the reversion of the mother erf to the Mother Deed by the simultaneous cancellation of the endorsement in the Mother Deed of the transfer of the mother erf to Innova. Section 6 (2) of the DRA provides, amongst other things, that ……..“the deed under which the land …..was held immediately prior to the registration of the deed which is cancelled, shall be revived to the extent of such cancellation, and the registrar shall cancel the relevant endorsement thereon evidencing the registration of the cancelled deed.” (Emphasis added). The expression “dead deed” should properly be understood to include a part of a deed, such as an endorsement, with particular regard to a deed that has not been exhausted.
05 July 2014