THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1133/20
In the matter between:
SUSARA MAGRIETHA STROHMENGER

APPLICANT
and
SCHALK WILLEM VICTOR

FIRST RESPONDENT
THE REGISTRAR OF DEEDS

SECOND RESPONDENT
Neutral citation: Susara Magrietha Strohmenger v Schalk Willem Victor
and Another (Case no 1133/20) [2022] ZASCA 45 (08 April 2022)
Coram:
SALDULKER,
MAKGOKA
and
HUGHES
JJA
and
MATOJANE and MOLEFE AJJA
Heard:
23 FEBRUARY 2022
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, publication on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand-down
is deemed to be 10h00 on 8 April 2022.

Summary: Contract – restitution – prescription – whether special
circumstances existed for this Court to grant special leave to appeal – whether
the first respondent had proved his claim and was entitled to relief.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Northern Cape Division of the High Court, Kimberley
Lever AJ (Tlaletsi JP and Williams J concurring, sitting as court of appeal):
The applicant is granted special leave to appeal in terms of s 17(2)(d)
of the Superior Courts Act 10 of 2013.
The appeal is upheld with costs.
The order of the full court of the Northern Cape Division of the High
Court, Kimberley, is set aside and replaced with the following order:
‘The appeal is dismissed with costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________

MATOJANE AJA (Saldulker, Makgoka and Hughes JJA and Molefe
AJA concurring):
[1] This is an application for special leave to appeal, and if granted, the
special leave itself. The applicant, Ms Susara Magrietha Strohmenger
(respondent in the court a quo), applies for special leave to appeal to this Court
against the judgment of the full court of the Northern Cape Division of the
High Court, Kimberley (Lever AJ, Tlaletsi JP and Williams J) in terms of
which the first respondent's appeal against the judgment of a single judge of
that division, was upheld. On 31 January 2019, the full court set aside the
order of the court a quo and granted judgment in favour of the first respondent

in accordance with the relevant prayers in the particulars of claim. The second
defendant did not defend the action.

[2] Aggrieved, the applicant applied to this Court for leave to appeal and
on 10 March 2021, the two Judges of this Court who considered the
application referred the application for oral argument in terms of s 17(2)(d) of
the Superior Courts Act and directed the parties to be prepared if called upon
to do so, to address the Court on the merits. The applicant contends that special
circumstances exist for this Court to grant special leave to appeal.

Facts
[3] The facts pertinent to the application are relatively brief as neither party
presented any oral evidence during the trial of the matter. From the pleadings,
the following appears: on 1 October 2015, the first respondent, as the plaintiff,
issued a summons against the applicant, claiming restitution of what he
alleged was performance pursuant to an invalid agreement concerning the
alienation of land.

[4] The restitution sought involved the re-transfer of the property described
as 5 Malan Street, Postmasburg, into the name of the first respondent;
alternatively, the value of the said property and compensation for the property
described as 26 Evkom Street, which had been on-sold by the applicant to an
innocent third party after it was transferred to the applicant in terms of the
alleged illegal agreement.

[5] The applicant raised a special plea of prescription, averring that the
summons had been served more than three years after the alleged debt fell

due. As to the substance of the claim, the applicant denied the oral agreement
as pleaded by the first respondent. She explained that the first respondent
bought the immovable property for her and had the same registered in her
name as a token of his love and affection towards her and to comply with a
maintenance obligation he had assumed and undertook to fulfil towards her.
The first respondent filed a reply and denied that the claim had prescribed.

[6] When the matter was called on the first day of the trial on 5 August
2019, the first respondent abandoned his alternative claim for the value of the
5 Malan Street property as well as a claim for compensation for the property
described as 26 Evkom Street. What remained was the relief pertaining to the
re-transfer of the 5 Malan Street property.

[7] The first respondent then closed his case without leading any evidence.
The applicant likewise closed her case, also without leading any evidence.
The trial court dismissed the first respondent's claim with costs. It also
dismissed the applicant’s special plea of prescription. The court held that
although the particulars of claim mentioned that the first respondent relied on
the assertion that the agreement was unlawful in respect of 9 Venter Street (as
referred to in the particulars of claim), no evidence was tendered that the first
respondent had performed in terms of an illegal agreement in relation to the 5
Malan Street property.

[8] Aggrieved by the order of the trial court, the first respondent appealed
to the full court. The full court upheld the appeal and set aside the trial court's
order. As to the applicant’s reliance on her special plea, the court found that

since there was no cross-appeal to challenge the trial court's finding on the
special plea on prescription, the applicant was precluded from relying on it.

[9] In its reasoning, the full court found that having pleaded donation, the
applicant was obliged to plead whether such a donation was oral or in writing
and that if there was a written donation, she could not have closed her case as
it would have been incumbent upon her to have led evidence to show how
s 28(2) of the Alienation of Land Act 68 of 1981 (the Act) applied.

[10]  The importance and role of pleadings cannot be overstated. Generally,
a party must plead all facts material to the cause or causes of action alleged
against the opposite party. The purpose of pleadings is to define the issues for
the other party and the court. A party has a duty to allege in the pleadings the
material facts upon which it relies.1 A material fact is distinct from the
evidence by which a party hopes to prove the pleaded material fact. Evidence
cannot be pleaded.

[11] In construing a pleading, the presumption is always against the pleader
because he or she is taken to have stated his own case in the best possible light
and in the manner most favourable to himself. The court must assume the facts
to be true and then decide whether or not the pleaded material facts are
capable of supporting the cause of action, or defence, being advanced.

1 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para 11; FPS
Ltd v Trident Construction (Pty) Ltd [1989] ZASCA 28; 1989 (3) SA 537 (A) at 541H; Fischer and Another
v Ramahlele and Others [2014] ZASCA 88; [2014] 3 All SA 395 (SCA); 2014 (4) SA 614 (SCA) para 13.

[12] With these general observations in mind, I turn to the pleadings in the
matter. As the matter was argued on pleadings only, it is necessary to set out
in some detail the cause of action as pleaded, as well as the applicant's plea in
relation thereto. The first respondent's oral agreement was pleaded as follows
in the particulars of claim:
‘4.
On or about June 2009, and at Postmasburg, the plaintiff and the first defendant
concluded an oral agreement. Both parties acted personally.
5.
The express, alternatively implied, in the further alternative tacit terms of the
agreement were:
5.1
The plaintiff will buy or -, (sic) alternatively, caused to be transferred into – the
name of the first defendant, three immovable properties in the Northern Cape Province and,
more specifically the town of Postmasburg.
5.2
The properties so transferred would be the value equal to the amount
of R 1 600 000,00.
5.3
In
lieu,
the
first
defendant
would
transfer
ownership
of
the
immovable property known as 9 Venter Street, Postmasburg, to the plaintiff.
[5.4]
The transfer of 9 Venter Street would coincide with the date of transfer of the third
and last of these properties into the name of the first defendant, alternatively shortly
thereafter.

6.
Plaintiff performed in part in terms of the agreement in that:
6.1
He purchased the property known as 26 Evkom Street, Postmasburg on or about
June 2009. The property was subsequently registered in the name of the first defendant.
This transaction was occasioned by a written deed of alienation between the plaintiff qua
purchaser and a third party.
6.2
The plaintiff purchased the property for an amount of R400 000,00 and incurred
costs
in
the
amount
of
R8 817.80
in
order
to
effect
the
transfer.
6.3
On or about 16 May 2012, he purchased the property known as 5 Malan Street,
Postmasburg. The property was subsequently registered in the name of the first defendant.

This transaction was occasioned by a written dead of alienation between the plaintiff qua
purchaser and a third party.
6.4
The plaintiff paid an amount of R 1 600 000.00 as a purchase price
and paid the amount of R 64 503.50 in respect of transfer costs.’

[13] In paragraph 8 of the particulars of claim, the first respondent pleaded
that the applicant repudiated the agreement on or about 28 May 2015 by
means of a letter written by the applicant's attorney, which repudiation the
first respondent accepted, alternatively the first respondent accepted the
repudiation by means of the particulars of claim.

[14] The first respondent specifically pleaded that the oral agreement
concluded was unlawful and illegal as the transfer of 9 Venter Street into the
name of the first respondent was not reduced to writing as prescribed in s 2(1)
of the Act. It is the first respondent’s case that he performed in part in terms
of an illegal agreement and as a result, he was entitled to claim restitution of
what he performed in terms of the agreement, namely the 5 Malan Street
property.

[15] In response to the aforegoing, the applicant, in her plea to paragraphs 4
and 5 of the particulars of claim denied that an oral agreement was concluded
between the parties as alleged by the first respondent and pleaded that:
‘5.1
The content of the paragraphs under reply are denied as if specifically traversed
individually, and plaintiff is put to the proof thereof.
5.2
In amplification of the denial, the first defendant denies the agreement as alleged
was concluded.
5.3
The first defendant, ex abundanti cautela pleads that:

5.3.1 The plaintiff and first defendant were in a life partnership at all relevant times for
purposes of the action, alternatively they lived together as a husband and wife would do;
5.3.2 The plaintiff bought immovable property for the first defendant and
caused the same to be registered in her name as token of his love
and
affection
towards
her
and
to
comply
with
the
maintenance
obligation
which
the
plaintiff
assumed
and
undertook
to
fulfil
towards
the
plaintiff.
The
immovable
properties,
after
transfer
in
the
first
defendant's
name,
were
hers
to
do
with
as
she
pleased
as
the
owner thereof.
5.3.3 During
the
subsistence
of
the
relationship
between
the
first
defendant
and
the
plaintiff,
plaintiff
and
first
defendant
both
had
the
benefit
of
the
income
from
the
properties
whilst
the
plaintiff
leased
the same to third parties;
5.3.4 The plaintiff at all time relevant and pertinent intended to transfer the immovable
properties in the first defendant's name and the first defendant intended to receive transfer
of the immovable properties in her name.'

[16] In response to paragraphs 6.3 and 6.4 of the particulars of claim, the
applicant pleaded:
‘Save to deny that the purchase and registration of the immovable property in the first
respondents name was pursuant to or as a result of the alleged agreement referred to in
paragraph 4 of the POC; the first defendant admits that the immovable property was
registered in her name. The plaintiff is put to the proof of the allegation in paragraph 6.4
of the POC.’

[17] Thus, in respect of 5 Malan Street, the first respondent pleaded that he
purchased 5 Malan Street for the applicant from a third party in terms of a
written Deed of Alienation and that the property was consequently transferred
to the applicant. In her plea, the applicant only admitted the fact that the

property was registered in her name. She denied the rest of the allegations
pleaded by the respondent.

[18] From an evidential burden point of view, what this meant for the
respondent was that he had to prove three crucial allegations denied by the
applicant, namely (a) that he concluded a written Deed of Alienation with a
third party in respect of 5 Malan Street; (b) that he purchased that property for
the applicant and (c) that he caused the property to be registered in the name
of the applicant. These are the aspects on which the first respondent bore the
burden of proof as they were squarely denied by the applicant in respect of 5
Malan Street. When he elected to close his case without adducing any
evidence on these issues, his claim in respect of 5 Malan Street was correctly
dismissed.

[19] In any event, on the pleadings, it seems that the first respondent’s
allegations do not bear scrutiny. It appears from the Windeed property report,
annexed to the particulars of claim, that instead of the first respondent, it was
the applicant who concluded a written deed of alienation with a third party in
respect of 5 Malan Street, pursuant to which the property was transferred from
the previous owner and registered in her name.

[20] It could well be that the first respondent paid the purchase price on
behalf of the applicant pursuant to an oral agreement. But that agreement, call
it a donation or sponsorship, is not one required to be in writing in terms of
s 28 of the Act. The agreement which the law requires to be in writing is the
underlying agreement in terms of which immovable property is transferred.

The agreement between the first respondent and the applicant, whatever its
terms are, does not fall within this purview.

[21] It is now settled that abstract theory applies to the passing of ownership
of property. The theory postulates two requirements for the passing of
ownership, namely delivery which in the case of immovable property is
effected by registration of transfer in the deeds office coupled with the so-
called real agreement. Brand JA in Legator McKenna Inc and Another v Shea
and Others2 explained that:
‘The essential elements of the real agreement are an intention on the part of the transferor
to transfer ownership and the intention of the transferee to become the owner of the
property. . . Broadly stated, the principles applicable to agreements in general also apply
to real agreements. Although the abstract theory does not require a valid underlying
contract, e.g. sale, ownership will not pass - despite registration of transfer - if there is a
defect in the real agreement. . . .’
[22] There was no defect in the real agreement between the applicant and
the transferor. The latter was legally competent to transfer the property after
receiving payment from the first respondent. The applicant was legally
competent to acquire the property. The property was, accordingly, validly
transferred to the applicant.
[23] It was argued on behalf of the first respondent that the first respondent
had performed in terms of an illegal contract because the applicant's plea of
donation of the property is affected by the provisions of the Act and must be
in writing; otherwise it is unlawful and void. The first respondent’s reliance

2 Legator McKenna Inc and Another v Shea and Others [2008] ZASCA 144; 2010 (1) SA 35 (SCA) para 22.

on the so-called donation supposedly pleaded by the applicant is misplaced.
Properly construed, that relates to a different property which does not form
part of this appeal.

[24] In her plea, the applicant did not allege that two properties were donated
to her by the first respondent. Her plea reads:
‘5.3.2 The plaintiff bought immovable property for the first defendant and caused the
same to be registered in her name as token of his love and affection towards her and to
comply with the maintenance obligation which the plaintiff assumed and undertook to fulfil
towards the plaintiff. The immovable properties, after transfer in the first defendant's name,
were hers to do with as she pleased as the owner thereof.’ (My emphasis.)

[25] It is not disputed that the first respondent purchased the 26 Evkom
Street property and had it registered in the name of the applicant. The
applicant sold that property to a bona fide third party. There is no evidence
that the pleaded maintenance undertaking or alleged donation refers to 5
Malan Street and not 26 Evkom Street. The first respondent’s allegations of
purchasing 5 Malan Street for the applicant were expressly denied, and there
was no evidence to corroborate them.
[26] The pleaded facts do not establish a cause of action for restitution, as
the first respondent closed his case without tendering any evidence that there
was an overarching agreement as he contended, which was denied by the
applicant or that the transfer was occasioned by a written deed of alienation
between himself qua purchaser and a third party or the basis upon which he
would be entitled to restitution. It should be emphasised that the allegations
in the pleadings do not constitute evidence and remain allegations until
confirmed by admissible evidence.

[27] In view of all the aforegoing, the full court erred in ordering the transfer
of the property which, on the face of it, was validly transferred and registered
in the applicant's name pursuant to a valid deed of alienation between herself
and the seller, to which the first respondent was not a party. There is no
evidence as to what the first respondent’s role in it was.

[28] It follows that special circumstances exist for this Court to grant special
leave to appeal to this Court and that leave to appeal should be upheld.

[29] In the result, the following order is made:
The applicant is granted special leave to appeal in terms of s 17(2)(d)
of the Superior Courts Act 10 of 2013.
The appeal is upheld with costs.
The order of the full court of the Northern Cape Division of the High
Court, Kimberley, is set aside and replaced with the following order:
‘The appeal is dismissed with costs.’

________________________
K E MATOJANE
ACTING JUDGE OF APPEAL

APPEARANCES:
For applicant:
N Snellenburg SC
Instructed by:

Haarhoffs Inc, Kimberley
c/o Honey Attorneys, Bloemfontein

For the first respondent: S Grobler SC
Instructed by:
Engelsman and Magabane Inc, Kimberley
c/o Gous Vertue & Associates, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
8 April 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Susara Magrietha Strohmenger v Schalk Willem Victor and Another (Case no 1133/20) [2022]
ZASCA 45
Today the Supreme Court of Appeal (SCA) upheld an appeal of the Northern Cape Division of the High
Court, Kimberley (high court) and replaced the order with one that dismissed the appeal.

The applicant applied for special leave to the SCA in terms of s 17(2)(d) of the Superior Courts Act 10
of 2013. This Court referred the application for oral argument and directed the parties to be prepared,
if called upon to do so, to address this Court on the merits. The applicant contended that special
circumstances existed which warranted this Court to grant the special leave to appeal.

The first respondent, the plaintiff in the high court, issued summons against the applicant, claiming
restitution of performance pursuant to an alleged invalid agreement concerning the alienation of land.
The restitution sought revolved around certain specified properties to be retransferred into the name of
the first respondent, or alternatively, the value of the property in question in addition to compensation
for another property, which had in the meantime been sold in terms of an alleged illegal oral agreement.
The applicant, in turn, raised a special plea of prescription and averred that summons had been issued
three years after the debt had fallen due. The substance of the plea was that the applicant denied the
oral agreement, as alleged by the first respondent and explained that the first respondent bought the
immovable property, and registered it in her name, as a token of his love and affection for her and to
comply with a maintenance obligation he had assumed and undertook to fulfil towards her.

The high court dismissed the first respondent’s claim as well as the applicant’s special plea. Aggrieved
by this, the first respondent appealed to the full court of the high court, which upheld the appeal and set
aside the high court’s order. The first respondent pleaded that the applicant repudiated their former
agreement. Furthermore, the full court precluded the applicant from relying on the special plea of
prescription and found that having pleaded donation, the applicant was obliged to plead whether such
a donation was oral or in writing. If it had been a written donation, she could not have closed her case
as it would have been incumbent on her to have led evidence to show how s 28(2) of the Alienation of
Land Act 68 of 1981 applied.

On appeal, the SCA found that the first respondent’s allegations did not bear scrutiny. The first
respondent could have paid the purchase price on behalf of the applicant pursuant to an oral agreement,
but such an agreement was not one legally required. If it had been a legal requirement, the underlying

agreement in terms of which the immovable property was transferred should have been in writing. The
agreement in question did not fall within this parameter.

The SCA held that the property was validly transferred to the applicant. The first respondent argued
that performance took place as a result of an illegal contract as the agreement must have been in
writing, otherwise it was unlawful and void, however the SCA concluded that reliance on such an
argument was misconstrued and was related to property unrelated to the matter at hand.

Accordingly, the SCA found that the full court erred when it ordered the transfer of property which had
been validly transferred and registered, pursuant to a valid deed of alienation to which the first
respondent was not a party. The SCA was satisfied that special circumstances existed warranting
special leave to appeal and accordingly upheld the appeal. The SCA set aside the order of the high
court, and dismissed the appeal.

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