Court name
High Court of eSwatini
Case number
Civil Case 3466 of 2002

Mkhoza v Gill and Others (Civil Case 3466 of 2002) [2003] SZHC 90 (23 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 90
Coram
Shabangu, AJ









HIGH
COURT OF SWAZILAND


CIVIL
CASE NO.

3466/02


In
the matter between:


MICAH
PASCHAL MKHONZA APPLICANT


AND


BELARMINO
BARROCA GIL 1st RESPONDENT


REGISTRAR
OF DEEDS 2nd RESPONDENT


ATTORNEY
GENERAL 3rd RESPONDENT


CORAM SHABANGU
A

J


FOR
THE APPLICANT MR. M. NKAMBULE


FOR
RESPONDENTS MR. B. MAGAGULA


JUDGMENT


23
rd SEPTEMBER 2003


The
applicant one Micah Paschal Mkhonza commenced proceedings before this
Court by way of application in which he sought the following relief:


1. That
the first respondent be and is hereby interdicted and restrained
from, any way whatsoever, occupying, utilizing and/or dealing with:
certain Farm No.1019 situate in the Shiselweni District, Swaziland,
measuring 68 5226 (six eight comma five two two six) hectares.


2. That
the purported transfer of the property described under paragraph two
above from the applicant to the first respondent be and is hereby
declared null and void ab initio.


2


3. That
the second respondent be and is hereby directed, authorised and
empowered to re-register the property described under paragraph 2
above in the name of the applicant and to cancel and remove all
documents indicating the first respondent as the registered owner of
the aforesaid property.


4. That
the first respondent be and is hereby ordered to pay costs of this
application at attorney and client scale.


5. Granting
the applicant further and/or alternative relief.


As
a basis of the application and claim for the relief contained in the
notice of motion the applicant alleges the following in paragraph
five of its founding affidavit:


"In
1982 I took transfer of certain farm 1019 situate in the Shiselweni
District measuring 68,5226 (sixty eight comma five two two six)
hectares which property was sold to me on the 24th July 1979 by one
Selina Nene - annexed hereto is a copy of the deed of transfer No.
139/1982 in my favour marked "A"."


The
first respondent who is the only respondent opposing the application
admits the contents of the abovequoted paragraph five of the
applicant's founding affidavit.


Then
the applicant proceeds to state in paragraph six that -

"...
the aforesaid property has been mine since then and I have never sold
or in any way disposed of same in as much as 1 have never signed any
power of attorney to have same transferred from me to someone else."


The
applicant goes on to state how he came to know that the property was
no longer registered in his name in paragraphs seven to eight wherein
he states:-


"7
Around March 2000 I had occasion to meet with a Mr. Derrick Dlamini
of the Ministry of Public Works and Transport to discuss compensation
for part of my aforesaid property expopriated by Government for the
construciton of the Luyengo/Sicunusa public road (MR4) whereat he
advised that I was not the only one claiming ownership of the
aforesaid property as there was a certain Belarmino Barroca Gil
represented by the offices of Bheki G. Simelane

&.
Company who was also claiming that he be compensated as the
registered owner of the aforesaid property - annexed hereto marked
"B" is a copy of a letter dated 14th December 1999 to that
effect from Bheki G. Simelane & Company to the Principal
Secretary in the Ministry of Public Works.


3


8
Subsequently 1 went to the deeds registry offices to establish the
true position regarding the registered owner of the aforesaid
property and to my shock and disbelief I discovered that indeed my
aforesaid property had been transferred to the first respondent on
1st February, 2000 under Deed of Transfer No.22/2000 and the
transaction was handled by Thembela Simelane of Bheki G. Simelane &
Company. On further perusal of the deeds registry file to ascertain
who gave Mr. Thembela Simelane the power of attorney to tranfer my
said property I discovered that there was a power of attorney dated
14th

December,
1999 purported to have been given by myself but on checking the
signature thereof 1 further discovered that it was not mine but that
of the first respondent. 1 annex hereto a copy of the fraudulent
power of attorney

and
mark Same "C"." my underlining


Then
in paragraph 10 again the applicant states:


"10
As already indicated under paragraph six herein above I have never in
anyway disposed of my aforesaid property nor have I during 1999
signed a power of attorney authorising Thembela Simelane or any other
person to be my agent and representative for purposes of transfer of
my aforesaid property to the first respondent or any other person. To
assist the honourable court to establish that the signature on
annexure "C" is not mine but that of the first respondent I
annex hereto a copy of a document upon which both our signatures
appear under our respective names and mark same "D".


Paragraph
9 of the founding affidavit is merely a conclusion which is stated as
follows:


"In
light of the aforegoing, I am advised by my attorneys and very
believe that the purported transfer of my aforesaid property to the
first respondent was fraudulently procured in as much as it is
contrary to the provisions of the Deeds Registry Act. Furthermore 1
submit that first respondent's conduct amounts to criminal fraud and
as such he should not be allowed to benefit from his criminal
activities. "


The
summary of the first respondent's answer to the aforementioned
allegations by the applicant is contained in paragraph ten of the
first respondent's answering affidavit wherein the following is
stated as a direct response to paragraph ten of the applicant's
founding affidavit.


"The
contents of this paragraph are denied in so far as it is alleged that
attorney Thembela Simelane had no authority to effect transfer. I
aver that the power of attorney which 1 signed effecting transfer was
signed by virtue of the special power of attorney granted to me by
the applicant himself which he now conveniently chooses not to
disclose to the above Honourable Court. "


4


Paragraph
eight and nine of the first respondent's answering affidavit is to
similar effect as paragraph ten aforementioned. The first respondent
denies that its actions were fraudulent because as the respondents
says he, "... was acting by virtue of the special power


of
attorney granted me [him] by the applicant on the 28th August, 1997
annexure " 1". " The first

respondent
goes on to state in paragraph nine that -


"In
any event, I am advised and verily believe that even assuming that
the transfer was cotnrary to the provisions of the Act, which is in
any event denied, I submit that the applicant is not entitled to the
relief which he seeks without a report of the Registrar of Deeds
issued in terms of Regulation 93 of the Deeds Registry Act. "


Paragraph
six of the first respondent's answering affidavit is a long paragraph
commencing from page twenty three to page twenty eight of the book of
pleadings. This paragraph is meant to be a response to paragraph six
of the applicant's founding affidavit which is answered in summary
form in paragraph ten of the first respondent's answering affidavit.
Paragraph six gives a long histroy and background of the relationship
between the parties which history can be summarised as follows. The
first respondent was a tenant in a house owned by the applicant at
Trelawney Park in Manzini. The first respondent used the house for
purposes other than residential as a result of which he did certain
alterations on the house. In March, 1988 the applicant was arrested,
convicted and imprisoned for what the first respondent terms customs
fraud. During the period of imprisonment of the applicant the first
respondent presented to the applicant whilst the latter was still in
prison a number of documents including acknowledgements of debt, for
the applicant to sign. In all the acknowledgements of debt the
applicant was to acknowledge his indebtedness to the first
respondent. In most cases the debt was said to arise from some
alleged repairs and renovations, which the first respondent claimed
to have done on the applicant's Trelawney Park house and vehicles.
The applicant who possibly could have relied only on the word of the
first respondent on these alleged repairs and renovations because he
was in prison and therefore probably not in a position to know the
truth and authenticity of the applicant's claims, now denies in the
replying affidavit that any such repairs were done. The applicant
states the following in paragraphs 3.4 and 3.6 of the replying
affidavit.


5


"3.4. I
always mistakenly believed that he was a true friend whilst on the
otherhand he was planning to deprive me of all my remaining
livelihood after the long sentence I served in prison. Therefore the
litany of debts mentioned in annexure "B" of his document
are far fetched and grossly exaggerated. I do not agree with such -


3.5. I
do not admit that expensive repairs were effected to my car whilst I
was in prison at the cost of E4,394-80. In 1982 I bought the Ford LDV
van through a government advance at E8,800-00. It would be ridiculous
to effect repairs of E4,394-80 on such a vehicle which I personally
drove to the High Court for my judgment and final sentencing on the
5th February, 1988. Each time respondent lent me some money to
service the Mazda 626 car I was using, he would deduct it from the
rental payment immediately."


3.6. Our
property at Trelawney Park is in the same state and condition since
my incarceration save for very minor improvements and changes to suit
the respondent's business transactions i.e. mechanic, building
construction, earth moving equipment all done on our residential
property and at profits accruing direct to respondent. Therefore the
sum of E145,624-36 appearing on paragraph 6.5 cannot be acceptable to
me since it cannot be substantiated. "


The
first respondent raised certain points in limine during argument
which are that -


1. The
applicant who had not made out a case in his founding affidavit had
introduced new matter in the replying affidavit which he ought not be
able to rely on.


2. That
there was a real and bona fide dispute of fact which cannot
satisfactory be determined without the aid of oral evidence and that
because the applicant ought to have realised when launching his
application that such serious dispute of fact was bound to develop,
the application should be dismissed.


Regarding
the first point it is important to note that the respondnet does not
say what the new matter is which is introduced in the replying
affidavit. There is in my view no such new matter in the replying
affidavit which "amounts to an abandonment of the existing claim
and the substitution thereof of a fresh and completely different
claim based on a different cause of action" as contended for by
the first respondent in paragraph 1.1.1.2 of the heads of argument
filed on his behalf. The new matter contained in the applicant's
replying affidavit was a natural and ordinary response to the new
allegations relied upon by the first respondent in its answering
affidavit. The


6


new
matter relates to the allegation of repairs, renovations and the
various agreements alleged by the first respondent which according to
the latter entitled or justified the respondent to sign a power of
attorney purporting to be given by the applicant, authorising
attorney and conveyancer Thembela Simelane to appear before the
Registrar of Deeds for execution of the deed of transfer as required
by Section 18 of the Deeds Registry Act 37/1968. This new matter is
not necessarily essential to the cause of action relied upon by the
applicant in respect of the relief claimed. The cause of action
relied upon by the applicant for the relief claimed is his ownership
of the property which is the subject matter of this litigation. The
applicant will be entitled to the relief claimed in the notice of
motion once he has established that he is the owner of the property
notwithstanding that in the Deeds Registry the first respondent is
the registered title holder. The question that might arise is whether
it is possible for one to establish that he is the owner of immovable
property inspite of the fact that the said property is registered in
the name of another person in the deeds register. That this is so,
clearly follows from the fact that our system of deeds registration
is a so-called negative system of deeds of registration. In this
regard I refer to D. Carey Miller, THE ACQUISITION AND PROTECTION OF
OWNERSHIP, 1986 at page 169, wherein the following is stated:


"An
accepted distinction in the classification of systems of registration
is between registration of deeds and registration of title, sometimes
reflected in the respectively corresponding descriptions of negative
and positive systems. Put at its simplest generality, the
registration of deeds label is applied to systems which are primarily
concerned with the recording of rights in land -negative systems -
whereas registration of title refer to positive systems in which
registration carries with it a guarantee of unimpeachability. A
system of registration - as opposed to one of private conveyancing -
requires registration before a right in land can be fully
efficacious, but this does not necessarily mean that the registered
title is warranted by the state. The South African system illustrates
this difference; although a real right in land can be acquired only
through registration the law does not guarantee unimpeachability of a
registered deed. That an absolute guarantee of the position as per
registered deed could not be made follows from the nature of the
system based, as it is, upon the general principles of the passing of
ownership, with delivery in the form of registration pursuant to a
real agreement rejecting the parties intentions to give and receive
ownership. The derivative acquisition of ownership according to these
principles is incompatible with any system of absolute registered
title because there can be no warranty of the validity of title in a
system which takes account of the transferor's actual intention... A
consequence of this is that '...though the


7


land
registrar generally proves ownership, this is not necessary
conclusive.'"

(my
underlining)


Similarly
SILBERBERG & SCHOEMAN'S THE LAW OF PROPERTY 3rd EDITION by Kleyn
and Boraine make the following observation -


"Though
a high standard of accuracy is maintained by our Deeds Offices the
data contained in the Deeds Registry records cannot be said to be
correct or complete under all circumstances. Mistake or fraud does
occur, real rights to land can in appropriate circumstances be
acquired by means other than registration... Consequently the
question whether we have a positive or negative system of
registration is of more than mere academic interest. It is highly
relevant as far as the protection of third parties, relying in good
faith on the correctness of such data, is concerned. If a third
party, acting in good faith, accepts incorrect data in the Deeds
Office as correct and acts upon this information, he will normally
enjoy no protection under a negative system of land registration
(apart from the possible application of the doctrine of estoppel and
apart from any delictual remedies he may have). This may be
illustrated as follows: A fraudulently obtained registration of B's
land in his name and subsequently sells it to C who is acting in good
faith. Transfer to C is effected on payment of the purchase price. A
had no right of ownership which he could transfer to C (nemo dat qui
non habet) and if A happens to be a man of straw, C would have no
remedy. It would not avail C to claim as against B that he acted in
good faith in relying on the accuracy of the facts recorded in the
deeds office. In contrast to this, a positive system of registration
warrants as against bona fide third parties, that the data contained
in the deeds office records is correct. In the example we have first
referred to, C would enjoy full protection under a positive system.
The accuracy of the registered information, including A's
registration as "owner", is, as far as C (a bona fide third
party) is concerned, guaranteed. Unless B, the original owner is
compensated for his loss, he will come of second best. "


The
two passages by the two authors clearly illustrate why on the basis
of the principles of derivate acquisition of property (including
immovable property) it is possible in our law for a person, such as
the applicant in these proceedings to remain the owner of the
immovable property, even though some other person is registered as
the owner in the deeds registry. There are also in any event a number
of situations as observed by the learned authors whereby
notwithstanding the fact that the registers do in general provide a
fairly complete picture of the rights in respect of any particular
unit of land, the registers are incomplete and inaccurate. Examples
usually given of such instances are those instances where real rights
to land are acquired by prescription and by marriage in community of
property. See SILBERBERG AND SCHOEMAN supra page 105 and D. Carey
Miller supra at page 170.


8


The
high efficiency of the system of our deeds registration means that
there is a dearth of case law authority on the subject of defective
titles or deeds office error. However the little case law that there
is supports the view that registration is not necessarily conclusive
with regard to real rights in land. For example in the case of
BARCLAYS NASIONALE BANK BPK v REGISTRATEUR VAN AKTES, TVL, 1975(4) SA
936 (T) a registered bond was overlooked when the mortgaged property
was transferred to a bona fide party who obtained as it were ex facie
the deed of transfer "clean" registered title on the
property. However the court held that this did not mean that the
mortgagee had lost his right against the property concerned. This
decision was followed in STANDARD BANK VAN S.A. V BREITENBACH 1977(1)
SA 151(T). See also TOFFEE V PRODENTIAL BUILDING SOCIETY & OTHERS
1944 WLD 186 at 189. It follows therefore that once the applicant
establishes that he is still the owner of the property inspite of the
registration, which registration would not have had the effect of
conveying any real right over the property from the applicant to the
respondent, the applicant would be entitled to the relief claimed in
prayer one, two and three of the notice of motion. The applicant has
sufficiently in his founding affidavit in paragraph five, established
that he owned the property since 1982 when the property was
transferred to him by deed of Transfer No. 139/1982 from one Selina
Nene, following a deed of sale concluded on 24th July, 1979. The
first respondent admits this in his answering affidavit. The
applicant further states that he never sold or in anyway disposed of
the property to anyone in as much as he never signed a power of
attorney to have same transferred to someone else. This is clearly
contained in paragraph ten of the founding affidavit. The applicant
has therefore made sufficient allegations and provided sufficient
evidence in its affidavit, which if not controverted sufficiently in
the answering affidavit, would entitle the applicant to the relief
claimed. Any new evidential material in the replying affidavit does
not amount to an abandonement of the existing claim and substitution
thereof of a fresh and completely different claim based on a
different cause of action. On this basis the point in limine cannot
succeed.


The
second point which like the first one was argued in the course of the
main argument on the merits, is that there is a real dispute of fact
which cannot be satisfactorily determined on the papers without the
aid of oral evidence, and that


9


because
the applicant ought to have foreseen that such dispute of fact was
bound to develop, the application has to be dismissed. This point can
only be considered in light of what the real issues are in the case.
The primary question which arises for decision on the facts pleaded
in this matter is whether the act of registration of the property
into the name of the first respondent did have the effect of
conveying the real right of ownership from the applicant to the first
respondent. Now as already observed above our Deeds Registry Act like
the South African one does not contain any form of warranty of the
correctness of the position as reflected by a registered deed. As
indicated it would appear that any form of warranty of the position
as per the registered deed would be incompatible with the fundamental
requirements that the transferor -


1. must
be in a position to pass ownership - nemo dot quod non habet.


2. and
the parties must intend that ownership should pass.


There
are a number of other requirements for the conveyance of ownership
from one person to another in our law, which requirements are
applicable to the conveyance of real rights in both movable and
immovable property. For a list of these requirements (see D. Carey
Miller supra at 118 and SILBERBERG AND SCHOEMAN'S LAW OF PROPERTY
supra at page 75-77. In our law the conveyance of real rights in
movables is by traditio and by registration in the case of
immovables. A distinction is drawn for this purpose between the
underlying agreement, such as a sale and what is called the real
agreement. The underlying agreement which is the basis or cause of
the real agreement is treated separately and its invalidity or
non-existence for some other reason will not affect the validity of
the real agreement, which latter agreement is the only agreement
relevant to the question whether there was a conveyance of the
dominium or other lesser real right from one person to the other. It
is because of this distinction that our law is said to follow the
abstract theory as opposed to the causal theory in the transfer or
conveyance of real rights to property, both movable or immovable. All
that our law requires for the real agreement to be valid is

justa
causa traditionis which is no more than a serious and deliberate
intention on the part of the transferor to pass ownership and on the
part of the transferee to receive the said ownership. See
COMMISSIONER OF CUSTOMS & EXCISE V RANDLES, BROTHERS & HUDSON
LTD 1941 AD 369 at 398-99, WEEKS V AMALGAMATED AGENCIES LTD 1920 AD
218 at 230, PRELLER &


10


OTHERS
v JORDAAN 1956(1) SA 483 A at 496. This is the correct position from
the point of view of substantive law inspite of conveyancing and
deeds office practice which requires an identifiable underlying
causa, for instance, a sale, succession etc, as a prerequisite to the
registration of transfer. Such information regarding the underlying
causa is important to the Registrar of Deeds not for the reason that
it has any relevance to the validity of the transfer or conveyance of
the ownership from one person to another, but because the Registrar
of Deeds needs to know this in order to ascertain what other legal
requirements, such as liability for transfer duty, have been complied
with. (see D. Carey Miller supra page 167 on the causa requirement.)


D.
Carey Miller supra summarises the position regarding the above as
follows:


"The
essentials of derivative acquisition applying to movables are equally
applicable to immovable property with the difference that the element
of delivery takes the form of a requirement of registration. It is
also true that in respect of the transfer of ownership in land the
critical requirement is that of intention.... A mere deed of transfer
of land does not of itself pass the dominium unless there is an
intention on the part of the transferor to divest himself of the
ownership and an intention on the part of the transferee to acquire
it. Accordingly, although the act of registration - like traditio in
respect of movables - is the dominant, active element it will be
effective only if the necessary preconditions for the passing of
ownership are present and, importantly, if the parties intend
ownership should pass. However, this said, one must acknowledge that,
in practice, the system of registration tends to ensure that the
essential requirements of the passing of ownership are present;
consequently registration de facto amounts to the consummate act
which effectively passes ownership. Only in exceptional cases -for
example, involving Deeds Office error or where the necessary
intention to transfer is absent - is registration likely to be
ineffective. " My emphasis


The
act does not seek to replace the common law as D. Casey Miller supra
observes at page 166 with regard to Section 16 of the South African
Act. Section 16 of the South African Act is the equivalent of Section
15 of our Deeds Registry Act 37/1968. Further in Section 18 of our
Deeds Registry Act which is the equivalent of Section 20 of the south
African Deeds Registry Act it is provided:


"Deeds
of Transfer shall be prepared in the forms prescribed by law or by
regulation or in such other form as the Registrar may in special
cases approve and, save as in this Act or any other law provided or
as ordered by the court in respect of Deeds of Transfer executed by
the Registrar, shall be executed in the presence of the Registrar by
the owner of the land described therein or by


11


a
conveyancer authorised by power of attorney to act on behalf of the
owner and shall be attested by the Registrar."


As
D. Carey Miller supra at page 181 observes "two fundamental
requirements of the process of registration of transfer are referred
to in this section," namely the deed of transfer prepared for
registration and the power of attorney to pass transfer which is the
transferor's authority to a conveyancer to appear before the
Registrar of Deeds and execute the transfer. From the section it is
also clear that the transferor has the option to execute the transfer
himself even though in practice this is hardly known to happen. "In
most cases the conveyancer's authority to pass transfer is provided
in a special power of attorney - one granted by the registered owner
for the specific purpose concerned. A conveyancer can be appointed in
a general power of attorney - one giving the agent general authority
to act on the grantor's behalf over a range of affairs - but the
scope for this is limited because the appointee to pass transfer can
only be a conveyancer practising in a Deeds Office centre." It
is possible that the grantor's special power of attorney to transfer
may himself be an agent holding the registered owner's general power
of attorney. The power of attorney granted by the owner authorising
ther conveyancer to appear before the Registrar of Deeds and execute
the transfer is not only evidence which satisfies the requirement of
competence of the transferor (conveyancer) but it also satisfies the
requirement that the transferor must intend to transfer his ownership
or such other real right as may be the subject of the transfer to the
transferee. The absence of a power of attorney duly executed by the
transferor or title holder of the land or his duly authorised agent
will not only offend against the requirements of Section 18 but will
also mean the requirements mentioned above of the competence or
capacity of the transferor and his intention to transfer and convey
the property to the "transferee" are not satisfied and may
be completely lacking. The result in such a situation will be that
despite the change in deeds records as to who the registered owner
is, it would be possible that such registration may have failed to
convey the dominium or ownership to the person who becomes registered
as the "owner" of the property. D. Carey Miller supra at
184 puts it thus -


"The
power of attorney giving authority to a conveyancer to register
transfer must link up with the holding title deed which, of course,
has to be lodged. This fundamental requirement is easy to explain:
the holding deed is the


12


transferor's
title proving that he is in a position to dispose of the property;
the power is his authority to a conveyancer to effect transfer.
Clearly, the title and the power must correspond in respect of the
property and the identify of the owner/transferor. If the property
owner as reflected in the holding title and the grantor of the power
of attorney to transfer are not the same person then the grantor's
authority to represent the owner must be established. In this
situation the agency is proved by lodging the general power of
attorney, or, if it has been registered, by reference, to the
registration number. "


Therefore
whereas it is possible for a person who is authorised to do so by
power of attorney signed by the owner of the property (the registered
title holder) to grant the authority to or appoint the conveyancer
who is to appear before the Registrar of Deeds on behalf of the owner
(as evidenced by the current deed of transfer), only a conveyancer
can be appointed or authorised to give transfer to the transferee on
behalf of the owner. A distinction therefore ought to be drawn
between, on the one hand, the authority to give transfer which the
owner of the property can only give to a conveyancer and other
authority to otherwise deal with the property (including the
authority to appoint on behalf of the owner the conveyancer for
purposes of effecting transfer of the property.


The
power of attorney relied upon by the first respondent referred to
inter alia in paragraph ten of the answering affidavit does not seem
to me to authorise the first respondent to appoint a conveyancer to
effect transfer of the property on behalf of the owner. At best the
said special power of attorney appearing at page fifty eight of the
book pleadings and is annexure I of the first respondent's answering
affidavit purports to authorise the first respondent to "give
transfer" relating to the 'above immovable property....'"
Indeed at paragraph ten of the answering affidavit this is the
interpretation that the first respondent is contending for, when he
states -


"The
contents of this paragraph are denied in so far as it is alleged that
attorney Thembela Simelane had no authority to effect transfer. I
aver that the power of attorney which I signed effecting transfer was
signed by virtue of the special power of attorney granted to me by
the applicant himself.


And
similarly in paragraph eight of the answering affidavit the first
respondent states:


"...
In particular I deny that the power of attorney which I signed to
effect transfer was fraudulent..."


13


It
is clear from this statement of the first respondent contained in the
answering affidavit that he thinks that the power of attorney which
is annexure I of his affidavit gave him authority to effect transfer
and that he believes he did this (that is, he effected the transfer),
when he signed the power of attorney which is annexure "C"
of the applicant's founding affidavit, purporting to appoint Mr.
Thembela Simelane to appear before the Registrar of Deeds to execute
(or effect transfer of the property), the deed of transfer. Annexure
I of the first respondent's answering affidavit as a power of
attorney authorising the said first respondent to give transfer could
not validly be given to the first respondent who was not a
conveyancer, regard being had to the provisions of Section 18 of the
Deeds Registry Act, 37/68. This is one reason upon which the first
respondent's reliance on this power of attorney must fail. The power
of attorney itself relied upon by the first respondent is headed
"Special Power of Attorney" and continues to provide -


"I
the undersigned, Micah Paschal Dinabantu Mkhonza do hereby grant,
nominate, constitute and appoint to (sic) Belarmino Barroca Gil with
full power of attorney to act on my behalf and in my place to:


1. To
sell immovable property registered in my name herein mentioned
namely; Farm 1019, situate in the Shiselweni District, Mankayane
measuring (68,5226) six eight, comma five two two six hectares. To
obtain a purchaser for the property herein mentioned and to make all
the necessary declarations as to the truth of the amount of the
selling price, to receive or to make and give, as the case may be, to
sign the necessary documents and deeds of sale, transfer relating to
the above immovable property.


2. To
receive and deposit the proceeds of the sale of the said immovable
property in his name.


3. To
receive and to pay to agent(s) the required commissions as arranged
between the appointee herein and/or agents arising from the sale of
the said immovable property.


And
to do all things lawfully necessary in connection with the
aforegoing.

Signed
at Manzini (Swaziland) on this 28th day of August, 1997...."

It
is clear from all the paragraphs of the special power of attorney
that the object of the power of attorney is the sale of the grantor's
(applicant's) immovable property as described therein. There is only
one word in the whole document which might possible suggest the scope
of the mandate given to first respondent is wider to the extent that
something else other than a sale is contemplated and that is the word


14


'transfer'
in the paragraph numbered 1 of the "special power of attorney."
The presence of that word produces a degree of vagueness and
ambiguity on the reading of the second sentence of paragraph one.


The
one possibility which does not advance the first respondent's case
any better is that the first respondent is given authority "...
to make and give, to sign the necessary documents and deeds of sale
and transfer relating to the immovable property." Now, as
already seen the first respondent is not competent to sign a deed of
transfer because the only people with such competence according to
Section 18 are the owner of the property or his duly authorised
conveyancer. The first respondent who is neither of this people could
not be given such power by the special power of attorney. Similarly,
the power of attorney could not vest him (that is, first respondent)
with the authority to give transfer in respect of the property
because again as we have observed above both in terms of the common
law and Section 18 of the Deeds Registry Act, 37/1968 it is either
the owner himself or a conveyancer who can do this. All that the
special power of attorney could have authorised the first respondent
to do would be to appoint the conveyancer on behalf of the applicant,
which as we have already observed, the special power of attorney does
not attempt to do.


Secondly,
and in any event, even assuming that the special power of attorney
granted to the first respondent on 28th August 1997 did authorise him
to appoint a conveyancer to appear on behalf of the Registrar of
Deeds for the purpose of executing the deed of transfer (that is,
effecting the transfer) the power of attorney which is annexure "C"
of the applicant's founding affidavit appointing Thembela Simelane to
appear before the Registrar to execute does not on the face of it
appear to be given by the first respondent, but purports to be given
by the applicant when in fact it is not the applicant who gave it.
The said power of attorney states after the heading "Power of
Attorney to Transfer" -


"I
the undersigned Micah Paschal Dinabantu Mkhonza (born on the 7th
July, 1939 ID No.4320-01-50164797) do hereby appoint THEMBELA ANDREW
SIMELANE and/or LINDIFA RONALD MAMBA with power of substitution to be
my/our true and lawful attorney and Agent to appear before the
Registrar of Deeds for Swaziland at Mbabane and there to declare that
I did on the 5th day of August, 1999 sell to Belarmino Barroca Gil
(born on the 19th January, 1947...."


15


At
the end thereof the power of attorney to pass transfer is not signed
by Micah Paschal Dinabantu Mkhonza but by the first respondent. As
the Registrar of Deeds would not know the signature of Micah Paschal
Dinabantu Mkhonza who was the holder of the then current title deed
and therefore being the person whose name had to appear in both the
title deed and the power of attorney, by wording the power of
attorney in this manner as one purporting to be given by the
applicant whereas the signature would be that of the first
respondent, which signature was not known to the Registrar of Deeds,
the first respondent must have realised that the power of attorney to
pass transfer which he signed was calculated to deceive the Registrar
of Deeds. In the result the conveyancer, that is Mr. Thembela
Simelane who executed the deed of transfer before and in the presence
of the Registrar of Deeds was not authorised to do so by either the
owner or a duly authorised agent of the owner, to appoint a
conveyancer. The power of attorney to pass transfer was not an act of
either the owner (the applicant herein) nor does it purport on the
face of it to be an act of the first respondent. Further support for
the view that in signing the power of attorney to pass transfer, the
first respondent did not purport to act on the basis that he had the
competence to so act, by the special power of attorney granted to him
by the applicant on 28th August, 1997 is that this latter power of
attorney was not filed by the frist respondent as proof of his
authority to represent the applicant registered owner in appointing a
conveyancer to appear before the Registrar of Deeds to execute the
deed of transfer. Indeed if the power of attorney to pass transfer
had appeared to be given by the first respondent the Registrar of
Deeds would have been alerted to require proof of the first
respondent's authority to represent the applicant in this
conveyancing transaction i.e. authority to appoint a conveyancer to
act on behalf of the applicant and as already shown above such
authority would clearly have been shown to be lacking. The failure to
properly describe the parties in the power of attorney purporting to
appoint Mr. Thembela Simelane vitiates the whole transaction. In this
regard I refer again to D. Carey Miller supra at 185 where he
observes:


"An
accurate description of the parties to a conveyancing transaction is
clearly important."

and
then in the footnote on the same page he states in relation to the
same matter:


16


"An
obvious objective of any system of land registration will be to avoid
errors. Ensuring that the correct unit of land is conveyed, by a
willing owner - or party entitled to convey on the registered owner's
behalf— to the intended and intending transferee should avoid
fundamental error and the possible problems of duplicated titles. "


It
is therefore clear that the defects in the transaction meant that not
only was there no compliance with the requirements of the Deeds
Registry Act, 37/1968 because of the absence of a proper power of
attorney appointing the conveyancer to appear on behalf of the owner
before the Registrar for the purpose of executing the deed of
transfer, but also that there was non-compliance with the
requirements of the common law relating, to the competence of the
conveyancer to pass the ownership from the applicant to the first
respondent and the absence of proof of an intention expressed by the
applicant, that it was his will, that ownership should pass from him
to the first respondent. This intention and will of the transferor is
usually expressed by the power of attorney which he signs authorising
the conveyancer to appear on his behalf before the Registrar of
Deeds, to execute the deed of transfer. It may also be expressed by
the involvement of the owner of the property who appears in person
before the Registrar, which practice as we have seen is unheard of in
reality.


Lastly,
the existence of the deed of sale of 28th August, 1997, together with
the reference in the power of attorney to pass transfer to a
non-existent sale supposedly concluded on 5th August, 1999, does not
affect the matter. This is because as we have already observed above
inspite of the fact that deeds office practice requires that the
underlying causa or agreement giving rise to the transfer be
identified, the actual existence or validity of such an underlying
causa has no bearing on the real agreement which is the only
transaction which has the effect of conveying the dominium or
whatever real right is the subject of the transaction from the
transferor to the transferee. The real agreement is a separate
agreement which must conform to all the requirements of an agreement
including, as we already stated, in case of land the justa causa
traditionis. In the case of land (immovable property) registration
takes the place of traditio. Similarly, the fact that the special
power of attorney granted by first respondent to the conveyancer had
referred to an non-existent sale would not have affected the validity
and effect of the transaction if the purported transfer had


17


complied
with all other requirements of the common law and the Deeds Registry
Act, as already shown. I may mention in passing however, that having
regard to the surrounding circumstances of the signing of the deed of
sale, the other agreements the parties had concluded and some
provisions in the deed of sale itself it is probable that the so
called deed of sale may have been a 'simulated' transaction where the
parties entered into an agreement taking the form of a sale whereas
the object of the parties in concluding such apparent sale were not,
that the consequences which normally flow to the parties to a sale,
would follow in their case. In other words, even though the parties
entered into the 'sale agreement' they did so without intending to be
bound inter se by its terms. This is clear from the following:


1. The
deed of sale was signed on the same day, that is, 28th August, 1997
as the power of the attorney granted by the applicant to the first
respondent to find another purchaser for the same property on behalf
of the applicant.


2. In
accordance with clause 2.1.3 of a deed of sale settlement signed by
the parties on 18th August, 1997 in which deed of settlement the
applicant's wife was also a party it was agreed as follows:
"Belarmino Gil be given a power of attorney to secure a
purchaser of the said farm mentioned above and in terms thereof be
given rights to accept payment in respect thereof in the event it is
sold by him and who shall account to the Defendant (Micah Pascal
Mkhonza) in the event there is a balance remaining. "


3. Similarly,
in clause 7.5 of the Deed of Sale, it is provided as follows:
"Furthermore, in the event of the purchaser selling the said
property herein mentioned in excess of the amount owed to him by the
seller.(sic) He shall deduct an amount of E145,000-00 less 5%
commission from the sale of property together with any other monies
due and payable by the seller to the purchaser at the time and
account to the seller herein in respect of whatever balance remaining
from such sale."


4. It
is also clear that it was contemplated that the applicant could still
sell the same property to another person.


18


5. The
purchaser, first respondent was given neither vacuo possessio nor a
right to be given transfer of the property. In this regard refer also
to clause 7.7 of the deed sale.


6. The
parties expressly agreed in the "deed of sale" that as soon
as the applicant paid the first respondent the amount of the
'acknowledged debt' from any source including a sale of the same
propety, by either party, the sale would be of no force and effect.


7. Inspite
of the 'deed of sale' the first respondent continued in his efforts
to look for a purchaser of this property without bothering to demand
transfer until the possibility of compensation arose as a result of
expropriation of a portion of the property by government in
connection with the construction of the Luyengo - Sicunusa Road.


8. In
terms of 2.1.2 of the deed of settlement signed on 18th August, 1997
the right that the first respondent was to obtain in respect of the
property was simple to register a mortage over same. Actually it is
clear that the drawing of the power of attorney and all the documents
signed by the parties thereafter were meant to implement the
provisions of the deed of settlement signed ten days earlier.

Further
it is against this background that the special power of attorney
granted by the applicant to the first respondent has to be
interepreted. Once the special power of attorney is view against the
other agreements which were also in writing it becomes clear that it
cannot be contended that the power of attorney dated 28th August,
1997 gave the first respondent the authority to transfer the property
either to himself or third parties. At best for the first respondent
the power of attorney, (assuming it could do this) only gave him
power to transfer real rights which normally go with the registration
of a mortgage bond. Similarly the sale was not intended to give him a
right to receive transfer of the ownership over the property.


On
the basis of the aforegoing apart from the fact that the sale is
irrelevant to the issues arising, the further problem in the first
respondent's way is that it may well be that it was a void sale for
lack of justa causa, in the sense of a serious and deliberate


19


intention
to create the relationship, rights and duties which normally arise
from a contract of sale.


On
the basis of the aforegoing I find that the ownership of the property
described as Farm 1019 situate in Shiselweni District, measuring
68,5226 (six eight comma five two two six) hectares did not pass from
the applicant to the first respondent. In the circumstances, the
applicant is clearly entitled to the order sought in the notice of
motion. I therefore make the following Order:


1. The
first respondent is hereby interdicted and restrained from, any way
whatsoever, occupying, utilising and/or dealing with: certain farm
No.1019 situate in the Shiselweni District, Swaziland, measuring:
-68,5226 (six eight comma five two two six) hectares.


2. The
purported transfer and registration of the property described under
paragraph one above from the applicant's name to that of the first
respondent is declared null and void and is set aside.


3. The
second respondent, that is, the Registrar of Deeds, is hereby
directed, authorised and empowered to re-register the property
described under paragraph one above in the name of the applicant and
to cancel and remove all documents indicating the first respondent as
the registered owner of the aforesaid property.


4. The
first respondent is ordered to pay the costs of this application.


A.S.
SHABANGU


Acting
Judge