Court name
High Court
Case number
900 of 2011

Dos Anjos Diogo Luis and Another v Nkotongo and Others (900 of 2011) [2012] NAHC 115 (08 May 2012);

Media neutral citation
[2012] NAHC 115
Smuts J



CASE NO.: I 900/2011


In the matter between:









Heard on: 26 March 2012

Delivered on: 8 May 2012


SMUTS, J.: [1] This is
an exception taken by the second defendant against the plaintiffs’
particulars of claim, styled as a declaration in this matter. It may
have been so styled because the plaintiffs seek a declaration of
rights in the main relief claimed, to the effect that the plaintiff
is the sole rightful owner of Erf 1241 Rundu, Extension No. 3, ( the
property). In the alternative to this claim, the plaintiffs seek a
declaratory order to the following effect:

That first
plaintiff is the only person having “permission to occupy”
(PTO) in respect of Erf 1241 and thereby is the only person in whose
favour third respondent should register ownership of the property.”

[2] The plaintiffs also seek an order
against the Registrar of Deeds to transfer and register the property
in the name of the first plaintiff and costs against any defendant
opposing the action. In addition to the Registrar of Deeds, cited as
third defendant, the Municipal Council of the Municipality of Rundu
is cited as the fourth defendant.

[3] In support of the relief claimed
in this action, the plaintiffs make the following averments in the
particulars of claim after describing the parties to the action:

7. On or
about 20
August 1996 first defendant was granted permission to occupy a stand
known as Erf 1618, measuring 1, 055 square meters, situated in Rundu,
Republic of Namibia. I attach hereto a copy of this PTO hereto and
marked annexure “

8. On or about 27th July
2000, and at Rundu, Julio do Rosario Luis, Identity Number
3705100100123, late husband of first plaintiff (hereinafter referred
to as “predecessor”), acting for himself and first
defendant being represented by Agent – Private Detective
International PDI, Rundu, who was duly authorized thereto, entered
into a written Deed of Sale. A copy of such written Deed of Sale is
annexed hereto as annexure “BL2”.

9. First defendant was granted
permission to occupy (PTO) Erf 1241, dated 8th February
2000. A copy of this PTO is attached hereto and marked annexure

10. The following were the express,
alternatively implied, in the further alternative tacit terms of the
said Deed of Sale:

10.1 First defendant would sell and
the first plaintiff’s predecessor would purchase a building
complex described by the parties as “Zobra Salon”
situated on Erf No. 1618, an Erf measuring 1, 055 square metres,
situated in Rundu.

10.2 The purchase price of the said
property was an amount of N$ 35, 000.00.

10.3 The purchase price was payable
as follows:

(a) a deposit in the amount of N$8,
000.00 was payable on 27th July 2000;

(b) six instalments in the amount
of 4, 500.00 were payable at the end of May 2000, June 2000, August
2000, September 2000, and October 2000, respectively;

10.4 The payment of the said
purchase price would be made at the offices of Lisikamena Trust Fund
t/a Linus Tuzeerendo Neumbo;

10.5 The first plaintiff’s
predecessor would take possession of the property immediately after
the payment of the said deposit;

10.6 First defendant would pay the
agent’s commission; and

10.7 The said sale of Erf No. 1618
was subject to a suspensive condition, namely, that it would be
registered in the name of first plaintiff’s predecessor after
it has been surveyed and/or serviced by fourth defendant.

  1. Second plaintiff paid to first
    defendant the purchase price referred to above on behalf of
    plaintiff’s predecessor. The last payment was made during
    September 2000.

  2. First Plaintiff’s
    predecessor complied with his obligations in terms of the said

  3. First plaintiff’s
    predecessor occupied (PTO) Erf 1618 including “Zobra Salon”.

  4. First plaintiff’s
    predecessor passed on in September 2000.

  5. On a date unknown to plaintiffs,
    Erf 1618 was declared to be situated within the boundaries of fourth
    defendant. Subsequently, fourth defendant renumbered the aforesaid
    Erf No. 1618 as Erf No. 1241.

  6. After the first plaintiff’s
    predecessor had occupied Erf 1241, Lisikamena Trust Fund t/a Linus
    Tuzeerendo Neumbo, of P.O. Box1519 Rundu, who is no longer in
    existence, approached first plaintiff’s predecessor and
    alleged that first defendant did not pay back the full loan granted
    to him for the construction of the said “Zobra Salon”.
    Linus Tuzeerendo Neumbo requested second plaintiff to pay the said
    outstanding amount to it on behalf of first plaintiff’s

  7. First plaintiff’s
    predecessor paid the said outstanding amount in full to Linus
    Tuzeerendo Neumbo.

  8. After the untimely passing away of
    the first plaintiff’s predecessor, first plaintiff inherited
    the property of her predecessor, including the said Erf 1241.

  9. On about 5th September
    2008, first defendant sold and second defendant bought Erf No. 1241,
    Rundu (Extension No. 3), in the Town of Rundu, Registration Division
    “B”, Okavango Region, measuring 1056 square metres,
    first transferred and still held by Deed of Transfer No. T.
    1433/2008 and the aforesaid property was subsequently transferred in
    the name of second defendant on 3rd April 2009. A copy of
    the said Deed of Transfer No. T 1443/2009 is attached hereto and
    marked “BL4”.

  10. At all material times hereto first
    defendant knew or ought to have known that first plaintiff’s
    predecessor was the rightful owner of the aforesaid Erf 1241,
    including “Zobra Salon”.

  11. The permission to occupy Erf 1241
    granted by fourth defendant to first plaintiff’s predecessor
    was capable of forming part of the estate of first plaintiff’s
    predecessor, and therefore inheritable by first plaintiff.

  12. First defendant had no right to
    alienate the aforesaid Erf 1241 to second defendant as first
    defendant had no title or any right whatsoever to such property.

  13. After the said Erf 1241 has been
    surveyed by fourth defendant it should have been registered into the
    name of first plaintiff, as the full purchase price has already been
    paid to first defendant by first plaintiff’s predecessor.

  14. In the circumstances the transfer
    of the said Erf 1241 into the name of second defendant is null and
    void and of no legal force.

  15. Notwithstanding due and proper
    demand first and second defendants refused and/or failed and/or
    neglected to transfer the said property into the name of first

[4] The second defendant excepted to
the particulars of claims on the following grounds:

Firstly, the plaintiffs in paragraph 7 of the particulars of claim
allege that the first defendant was granted permission to occupy
(PTO) Erf 1618, and as proof thereof plaintiffs rely on annexure

2. The first defendant’s
right to occupy (PTO) contained in annexure “BL1”,
specifically provides that:

holder shall not have the right to transfer, mortgage, cede, lease,
sublet or alienate this right to occupation, the whole or any portion
thereof without the written consent of the Permanent Secretary, which
consent shall not be unreasonably refused.”

3. Moreover, the permission to
occupy (Annexure “BL1”) granted the first defendant an
option to purchase Erf 1618.

4. The plaintiffs’
particulars of claim contains no averments, that the first defendant
ceded his option with written consent as required or that first
defendant exercised his option and thereafter sold the property to
plaintiff. In law a person cannot give a greater right to another
then they themselves already have.

5. Secondly, first plaintiff in
paragraph 9 alleges that on the 8th February 2000 she was
granted permission to occupy Erf 1241 (formerly Erf 1618, see
paragraph 15 of the particulars of claim). As proof hereof plaintiffs
annex annexure “BL3”.

6. In paragraph 8 of the
particulars of claim the plaintiffs allege that on the 27th
July 2000 the first plaintiff bought Erf 1618.

7. A careful perusal of annexure
“BL3” contradicts and negate any sales transaction
between first plaintiff because:

(a) the first plaintiff already had
an option to buy Erf 1618, on the 8th February 2000, by
virtue of annexure “BL3”;

(b) the sales agreement is void ab
anitio and therefore unenforceable by virtue of annexure “BL3”.

8. The plaintiffs in paragraph 8 of
the particulars of claim rely on a deed of sale concluded on or about
27 July 2000.

9. The deed of sale relied upon in
paragraph 8 of the particulars of claim does not comply with section
1(1) of the formalities in respect of the formalities in respect of
contracts of sale of land Act 71 of 1961 in that:

(a) the purported deed of sale does
not have an amount for which the land was allegedly bought;

(b) on the face of it annexure BL2
was entered into with a certain LISIKAMENA TRUST FUND RUNDI t/a LINUS
and crucially not of first defendant;

(c) the plaintiffs allege in
paragraph 7 of the particulars of claim that the land in issue
belonged to the first defendant and ex facie annexure “BL2”
the agent was not acting on behalf of first defendant”.

[5] When the matter was called, Dr S.
Akweenda, who appeared for the plaintiffs, rightly conceded that the
particulars of claim did not disclose a cause of action for the main
declaratory sought by the plaintiffs. He said that the plaintiffs
would no longer seek that relief but would have however persist in
the alternative claim, contained in prayer 2 of the particulars of
claim and quoted above. He also conceded, as far as that claim was
concerned that there were certain contradictory elements in the
particulars of claim and conceded that the exception against that
claim was also well founded for that reason. That concession is
correctly made. It follows that the exception is well taken and is to
be upheld. On behalf of the plaintiffs, he also tendered the costs of
the exception but sought leave for the plaintiffs to amend their
particulars of claim.

[6] Mr Coleman who appeared on behalf
of the second defendant submitted that it would serve no purpose for
this court to afford the plaintiffs the opportunity to amend their
particulars of claim as the relief sought in prayer 2 (in the
alternative to the main declaratory relief) was not sustainable and
not capable of being supported even if the plaintiffs were afforded
the opportunity to amend within a specified period. He submitted that
the plaintiffs would also need to deal with the second defendant’s
ownership of the property which was not covered by the alternative
claim. That, he submitted, would require a separate cause of action.

[7] I have some difficulty with this
approach. Once it is accepted that a permission to occupy is, as a
matter of law, capable of being transferred from one party to another
(upon the fulfilment of conditions and in compliance with the terms
of the PTO and the law pertaining to such rights), then relief sought
to the effect that a valid transfer of a PTO had occurred would be
capable of being claimed. It remains of course another matter
entirely whether the plaintiffs are in a position to make averments
necessary to sustain such a cause of action. What is clear, as is
correctly conceded by Dr Akweenda, is that the particulars of claim
caste in their current manner do not sustain such a cause of action.

[8] As is made clear in Herbstein and
van Winsen
The Civil
Practice of the High Courts of South Africa
courts usually give a respondent an opportunity to file an amended
pleading within a stated time
allowing an exception
I see no reason to depart from this well established approach. As to
Mr Coleman’s contention that such relief was not capable of
being sustained because the second defendant’s ownership of the
property was not addressed by the alternative claim, I agree that
this would need to be Dealt with and properly addressed. But an
amendment could also entail seeking further relief to deal with this
aspect. It would certainly have been open to the plaintiffs to have
filed a notice to amend after the exception was taken and even after
I had reserved judgment. I see no reason why they should not be able
to do so within a specified period after this ruling is provided.

[9] The order I accordingly make is
that the second defendant’s exception is upheld with costs and
the plaintiffs’ particulars of claim are set aside with costs
and the plaintiffs are given leave, if so advised, to amend their
particulars of claim within 14 days of the date of delivery of this
judgment. The second defendant’s costs are to include those of
one instructing and one instructed counsel.






Instructed by: ANGULACOLEMAN

edition by Cilliers, Loots and Nel, Vol 1 at p 646

also Group Five Building Ltd v Government of the Republic of South
Africa 1993(2) SA 593 (A) at 602-603 (per Corbett, CJ).