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In the High Court of South Africa, Free State Division, Bloemfontein

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In the High Court of South Africa, Free State Division, Bloemfontein IN THE HIGH COURT OF SOUTH AFRICA, FREE STATE DIVISION, BLOEMFONTEIN Reportable: YES Of Interest to other Judges: YES Circulate to Magistrates: NO In the matter between: Case number: 4075/2020 MATJHABENG LOCAL MUNICIPALITY Applicant and JUDITH MCDONALD 1st Respondent REGISTRAR OF DEEDS, BLOEMFONTEIN 2nd Respondent MINISTER OF RURAL DEVELOPMENT AND LAND AFFAIRS, GOVERNMENT OF THE RSA 3rd Respondent MEC, DEPARTMENT OF PUBLIC WORKS & INFRASTRURE 4th Respondent In the matter between: Case number: 4077/2020 MATJHABENG LOCAL MUNICIPALITY Applicant and JOHAN GODFRIED HARTMAN 1st Respondent LANCE MAREUIL AITCHISON 2nd Respondent REGISTRAR OF DEEDS, BLOEMFONTEIN 3rd Respondent MINISTER OF RURAL DEVELOPMENT AND LAND AFFAIRS, GOVERNMENT OF THE RSA 4th Respondent MEC, DEPARTMENT OF PUBLIC WORKS & INFRASTRURE 5th Respondent 2 In the matter between: Case number: 4078/2020 MATJHABENG LOCAL MUNICIPALITY Applicant and ANNA MARGARETHA WAGENAAR 1st Respondent FREDERICK JOHANNES WAGENAAR 2nd Respondent REGISTRAR OF DEEDS, BLOEMFONTEIN 3 rd Respondent MINISTER OF RURAL DEVELOPMENT AND LAND 4th Respondent AFFAIRS, GOVERNMENT OF THE RSA MEC, DEPARTMENT OF PUBLIC WORKS & 5th Respondent INFRASTRURE CORAM: DAFFUE, J HEARD ON: 21 JANUARY 2021 JUDGMENT BY: DAFFUE, J _________________________________________________________ DELIVERED ON: 19 FEBRUARY 2021 This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 11:00 on 19 February 2021. _________________________________________________________ I INTRODUCTION [1] The legal maxim, bona vacantia, deriving from Roman law,1 is an established legal principle since time memorial. It was utilised in case of a property owner dying without a will and in the absence of 1 Institutiones 2.6.4. Hiemstra and Gonin Trilingual Legal Dictionary 3rd ed at 303. The meaning thereof is: in Afrikaans – goedere sonder aanspraakmaker; in English – goods without a claimant (or owner); referred to as “escheated goods” in English law. 3 intestate heirs. During the early imperial period such property became the property of the imperial treasury, the fisc.2 In English law the same principle was adopted, ie ownerless property, whether in the case of an owner dying without a will and intestate heirs, or upon dissolution of a company, accrued to the Crown. Successive English Companies Acts confirmed this principle pertaining to companies and the principle is yet again confirmed in the latest Companies Act.3 The legal maxim has been applied in South Africa for at least a century as is evident from the judgments in Spangenberg and Baker,4 as well as numerous judgments thereafter as will be shown below. I would have thought that the legal principles are unambiguous and clear. [2] The question to be asked in the three cases to be adjudicated by me is whether our Constitution has changed the common law. The applicant, a local municipality, submits that the common law in this regard is not relevant anymore in the light of our Constitution and seeks relief in its favour as will be shown below. The relief claimed in all three applications is exactly the same and consequently one judgment is delivered. [3] Deregistration of companies failing to comply with statutory requirements5 has become the order of the day. There is reason to believe that other municipalities will in future seek similar relief as in casu. 2 Ex parte Spangenberg 24 SC at 289 and Estate Baker & Another v Estate Baker and others 25 SC 234 at 242 3 Section 1012 of the UK Companies Act, 2006 4 Loc cit, fn 2 5 Section 82(3)(a) of the Companies Act, 71 of 2008 4 II THE PARTIES [4] The applicant in all three cases is the Matjhabeng Local Municipality which includes the towns Welkom, Virginia, Odendaalsrus, Hennenman, Ventersburg and Whites. Adv MC Louw appeared for the applicant on instructions of Phatshoane Henney Inc. [5] The Registrar of Deeds (the Registrar), the Minister of Rural Development and Land Affairs of the Republic of South Africa (the Minister) and the MEC for the Department of Public Works and Infrastructure, Free State Province (the MEC) were cited as respondents in all three applications. The Registrar filed a report in terms of the Deeds Registries Act (The Deeds Act)6 which I shall discuss below. The other two parties, the Minster and the MEC, gave notice through the Office of the State Attorney in Bloemfontein that they will abide the decision of the court. [6] The first respondent in application 4075/2020 is Judith McDonald a major female and former director of Small Fry (Pty) Ltd, a company deregistered by the Company and Intellectual Property Commission (the CIPC) on 24 February 2011. The deregistered company is the owner of two immovable properties, to wit Erf 44, Odendaalsrus, district Odendaalsrus, Free State Province and Erf 45, Odendaalsrus, district Odendaalsrus, Free State Province by virtue of Deeds of Transfer T6781/1988 and T3011/1984 and respectively. Contrary to applicant’s version in the founding affidavit that no mortgage bonds are registered over the properties, 6 Section 97 of Act 47 of 1937 5 mortgage bond B6657/1991 is indeed registered over both properties in favour of Chevron South Africa (Pty) Ltd in the amount of R60 000-00 as is evident from the report filed by the Registrar. [7] The first and second respondents in application 4077/2020 are Johan Godfried Hartmann and Lance Mareuil Aitchison, the former directors of St Helena Hotels (Pty) Ltd, which company has been deregistered by the CIPC on 28 February 2015. The deregistered company is the registered owner of Erf 707, Welkom extension 1, district Welkom, Free State Province by virtue of Deed of Transfer T3368/1956. No mortgage bond is registered over the property. [8] The first and second respondents in application 4078/2020 are Anna Margaretha Wagenaar and Frederick Johannes Wagenaar, the former directors of Defcor Konstruksie (Pty) Ltd, a company deregistered by the CIPC on 16 July 2010. The deregistered company is the registered owner of Erf 9095, Welkom, extension 24, district Welkom, Free State Province by virtue of Deed of Transfer T5967/1986. Contrary to applicant’s version in the founding affidavit, mortgage bond B8269/1987 is registered over the property in favour of ABSA Bank Ltd. III APPLICANT’S CLAIM IN RESPECT OF ARREAR RATES AND TAXES [9] The amounts owed by Small Fry (Pty) Ltd to applicant for arrear rates and taxes are R98 796.45 and R99 473.56 in respect of the two properties respectively. 6 [10] The amount owed by St Helena Hotels (Pty) Ltd to the applicant is R441 374.39. [11] The amount owed by Defcor Konstruksie (Pty) Ltd to the applicant is R1 958 725.05. IV THE RELIEF CLAIMED [12] Applicant claims that: 12.1 the properties registered in the names of the various deregistered companies “be declared bona vacantia the property of the Applicant” and that 12.2 the Registrar of Deeds be authorised and directed to transfer the properties to the applicant. V ORDER OF 3 DECEMBER 2020 [13] The matter came before me in the unopposed motion court of 3 December 2020. As indicated, the Minister and MEC gave notice through the State Attorney that they would abide the decision of the court. The Registrar came to the same conclusion in the reports filed in respect of all three applications. Therefore, all three applications are unopposed. The Registrar correctly held that s 6 of the Deeds Act, inter alia relied upon by applicant, does not apply in casu as the section deals with the cancellation of registered deeds. It is not necessary to say anything more in this regard. The 7 Registrar also referred to s 33 of the Deeds Act which deals with the registration of title other than in the ordinary process. Subsection 33(1) reads as follows: Section 33. Registration of title by other than the ordinary procedure: (1) 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 the 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 authorizing the registration in his name of such property.” (emphasis added) [14] As the Registrar indicated, s 33(1) applies where a person has acquired ownership in any other manner other than expropriation and cannot obtain registration in his name in the usual manner. It is further submitted by the Registrar, without suggesting or advising that any order should be granted, that if the court is persuaded to grant relief to applicant, the order should be issued in terms of s 33 (and not s 6) of the Deeds Act. As mentioned, the Registrar abides by the decision of the court. [15] The three applications were enrolled on the unopposed motion court roll of 3 December 2020 presided over by me. Bearing in mind the principles applicable to the legal maxim, bona vacantia, I informed applicant’s counsel, Mr Louw of my reservations in respect of the relief sought. I postponed the matter to 21 January 2021 with leave to file written heads of arguments on/or before 15 January 2021. 8 VI BONA VACANTIA: ESTABLISHED LEGAL PRINCIPLES [16] In De Villiers & Others v GJN Trust and Others7 Van der Merwe JA recently confirmed the principles applicable to bona vacantia with reference to Rainbow Diamonds (Edms) Bpk en Andere v Suid- Afrikaanse Nasionale Lewensassuransiemaatskappy,8 repeating that such ownerless property automatically passes to the State without any form of delivery.
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