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[2021] ZAWCHC 31
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Du Toit v Coetze N.O and Others (22782 / 2016; 7590 / 2017) [2021] ZAWCHC 31; 2022 (3) SA 449 (WCC) (22 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 22782 / 2016
& Case Number: 7590
/ 2017
In
the matter between:
PETRONELLA
DU TOIT
Plaintiff
and
HILDA
ALETTA COETZE N O
First
Defendant
HILDA
ALETTA COETZE
Second Defendant
NAOMI
KRUGER
Third
Defendant
REGISTRAR
OF DEEDS
Fourth
Defendant
Coram: Wille, J
Heard: 9
th
February
2021
Delivered:
22
th
February 2021
JUDGMENT
WILLE,
J:
Introduction
[1]
These are action
proceedings concerning a dispute relating to the sale and transfer of
certain immovable property.
[1]
The plaintiff alleges that she purchased certain immovable
property
[2]
,
from the late Mr Coetze on the 25th of November 2013. The
plaintiff seeks an order of specific performance for the transfer
of
the property into her name. Mr Coetze passed away before the
property could be transferred into the plaintiff’s
name, which
in turn triggered this litigation together with a number of connected
application proceedings between the parties.
Some of the
averments made in the connected application proceedings are germane
to these action proceedings.
[2]
The first defendant is the executrix in and
to the estate of the late Mr Coetze, cited in her capacity as the
executrix of their
joint estate. The second defendant is the
surviving spouse of Mr Coetze cited in her personal capacity as the
surviving spouse
of her former marriage in community of property, to
the late Mr Coetze. The third defendant is the ex-wife of the
deceased
and the fourth defendant is the registrar of deeds. The
third defendant takes no part in these proceedings. The fourth
defendant
has no objection to the relief sought by the plaintiff.
The first and second defendants shall be referred to as the
defendants.
The
Plaintiff’s Case
Mr
de Waal
[3]
Mr de Waal testified as an expert. He
is a practicing attorney and specializes in the area of conveyancing
and deceased estates.
He has considerable experience in both
these fields in that he has been an attorney for the last (33)
years. He familiarized
himself with the content of the
plaintiff’s bundle of documents and the pleadings between the
parties prior to his testimony.
[4]
He concentrated on (2)
of the defences raised by the defendants. Firstly, the defence
that the sale agreement was alleged
to be non-compliant with the
formalities required in terms of the Alienation of Land Act
[3]
.
Secondly, the defence that the late Mr Coetze was not entitled
to sell the property without the consent of his ex-wife.
[5]
He testified about the
provisions of section 45 (bis) of the Deeds Registries Act.
[4]
In this connection, he opined that the transfer of an undivided half
share of the property to the plaintiff, together with
a section 45
(bis) endorsement of the other undivided half-share, may be lodged
and transferred as one simultaneous transaction
in the Deeds
Registry.
[5]
As an aside, on the issue of payment of the purchase price for the
property, Mr de Waal testified that the conveyancer attending
to the
transfer was merely obliged to certify that the purchase price had
been paid, this prior to registration of transfer.
[6]
The section 45 (bis) application, uniquely
only requires the signature of the person who is the applicant in
terms of the said section.
In short, in his view, there were no
impediments preventing the registration of the transfer of the
property into the name of the
plaintiff.
Mrs du Toit
[7]
The plaintiff testified
that she was employed as a production manager at a pottery enterprise
situated in Brackenfell.
[6]
She testified that the deceased suffered a major set-back on his farm
during 2010 due to an outbreak of swine-flu which decimated
a large
portion of his pig farming business. The deceased also fell
into substantial arrears in connection with the payment
of his
electricity supply with Eskom.
[8]
As a direct result of these financial
difficulties, her husband had advanced vast sums of money to the
deceased to keep his business
buoyant. In order for this
financial position to be better secured her husband sought to
conclude (2) written agreements
with the deceased. Firstly, a lease
agreement was concluded between her husband and the deceased so that
the electricity supply
could be restored to the property.
Secondly, a sale agreement was concluded between the deceased and the
plaintiff for the
purchase of the property. It is this second
sale agreement which is the subject of severe assail by the
defendants.
[9]
Significantly, both
these agreements were concluded and reduced to writing on standard
form documents
[7]
,
purchased from a stationer. Notarized copies of both of these
agreements were handed in and marked as exhibits ‘A’
and
‘B’ respectively. Both the agreements appear on (1)
single piece of paper, folded in the centre. The
point being
that there were no separate pages to these agreements.
[10]
The lease agreement was
signed early in the morning on the 25th of November 2013.
[8]
On the very same day, one of the original lease agreements was
submitted to Eskom so that arrangements could be made to restore
the
electricity supply to the property. The second defendant signed
as a witness to this lease agreement.
[11]
As
far
as the sale
agreement is concerned, same was signed and witnessed by the deceased
on the same morning. The deceased and the
first defendant
thereafter proceeded to the work-place of the plaintiff
[9]
,
to have the sale agreement signed by the plaintiff.
[10]
The plaintiff’s husband also proceeded to his wife’s
workplace to sign as a witness to the sale agreement.
The sale
agreement was signed by the purchaser at her workplace. The agreement
was simultaneously witnessed by the second defendant
and the
plaintiff’s husband. Significantly, the sale agreement
was never submitted to Eskom as there was no reason
to do so.
[12]
In terms of the sale agreement, the
plaintiff also accepted responsibility for payment of the rates and
the bond instalments over
the property, pending registration of
transfer of the property into the name of the plaintiff.
Neither the plaintiff, nor
her husband resided on the property. The
plaintiff’s husband carried out farming operations on the
property on an almost
daily basis.
[13]
The second defendant
resided in the main house on the property and still so resides.
[11]
The reason for the citation of the plaintiff as the purchaser on the
sale agreement
,
was simply because the plaintiff is married out of community of
property to her husband, and they for business reasons, placed
all
their unencumbered assets into the plaintiff’s name.
[14]
She testified that the sale agreement had
nothing to do with Eskom and that the defendants’ defence on
this score was simply
not understood. She further testified
that the third defendant had been paid all the monies due to her in
connection with
the disposal of her undivided half-share in and to
the property. This was done so that she could ultimately
acquire the entire
property from the deceased.
[15]
Her comment was sought
in connection with an allegation made by the second defendant
[12]
,
to the effect that the second defendant stated that she lived in a
container on the property. According to her, this was
untrue as
she frequented the property and the second defendant resided in the
main house on the property.
Mr
du Toit
[16]
Mr du Toit is married to the plaintiff.
He reached an agreement with the deceased to assist him in the
farming operations
on the property with effect from October 2016.
The deceased suffered a major financial set back due to the outbreak
of swine-flu
on the property during October 2010. The deceased
had farmed predominantly with pigs at that time. Mr du Toit
commenced
advancing funds to the deceased to assist him during these
financially uncertain times.
[17]
Eventually, he closed down his mechanical
business in order to farm full-time in partnership with the
deceased. The deceased
became divorced from the third defendant
during the latter part of 2012. By that stage, Mr du Toit had
advanced substantial
funds to the deceased and had also invested
heavily in the farming operations with the deceased in terms of their
agreement.
[18]
Mr du Toit deemed it
prudent to reduce his loan arrangements and the arrangements
regarding his joint farming venture with the deceased,
to writing.
The parties signed a written document in this connection.
[13]
The terms of agreement reflected in this document do not seem
to be in dispute, save for the interpretation of certain clauses
in
the agreement. In essence, the agreement recorded that certain
monies were due to the third respondent for her half-share
in and to
the property. Further, the agreement in broad terms set out the
farming arrangements between the deceased and Mr du Toit.
[19]
During this time, the deceased also
experienced some difficulties with Eskom in connection with the
electricity supply to the property.
The deceased fell into
arrears with his payments on his electricity account and his
electricity supply to the farm was terminated
by Eskom. The
deceased illegally re-connected the electricity supply without the
knowledge and consent of Eskom. Eskom
technicians subsequently
discovered this illegal connection. The electricity supply to
the property was thereafter disconnected
in a secure manner thereby
rendering it impossible to once again connect the electricity supply
illegally.
[20]
The property needed to be supplied with
electricity and accordingly Mr du Toit got involved. He met
with certain Eskom personnel
and it was discovered that indeed a vast
sum of money was owed to Eskom. A reduced indebtedness of
R326 000,00 was subsequently
negotiated to be the agreed amount
outstanding. He was advised that the only manner in which he
could get the electricity
supply re-connected would be for him to
lease the property from the deceased, so that a new account could be
opened in his name.
[21]
This in turn,
prompted him to deal with both the
electricity issue and the ultimate purchase of the farm in a more
formalised manner. He
went to a shopping complex in order to
purchase a standard form lease agreement and a standard form sale
agreement. He was
able to purchase the lease agreement but was
unable to purchase a sale agreement as the said stationer was in
short supply of the
latter.
[22]
On the morning of the 25
th
of November 2013, he met with the deceased at his home on the
property at about 07h00. Two original lease agreements were
completed and signed. One of the original lease agreements was
handed over to Eskom on the very same day in order that the
electricity supply could be reconnected as soon as possible.
[23]
A notarized copy of the remaining original
is before the court as exhibit ‘A’. Mr du Toit
proceeded to drop his
wife at her place of employment in Brackenfell
and thereafter met with the Eskom officials in order that the
electricity supply
could be restored. He also went to purchase
two original sale agreement documents.
[24]
Both these sale agreements were completed
later the same day at the home of the deceased. Both were
signed by the deceased
and both were witnessed by Mr du Toit and the
second defendant. Thereafter, they all then proceeded to the
work-place of
the plaintiff and the documents were signed and
witnessed in her presence and in the presence of the witnesses
thereto. Mr
du Toit corroborates his wife’s evidence in
this connection.
[25]
The purchase price of R(1) million,
together with the obligation to settle the outstanding bond, was a
suggestion made by the deceased.
The deceased also remarked
that this nominal purchase price would have the effect of reducing
the transfer duty so as to facilitate
the registration of the
property into the name of the plaintiff. The sale agreement
records that the purchase price had already
been paid and provided
that registration of transfer would be effected when the plaintiff
was in the financial position to do so.
This, after settlement of the
mortgage bond registered over the subject property.
[26]
The defence raised by the defendants to the
effect that the sale agreement was signed to defraud Eskom was
dismissed by Mr du Toit
for two reasons. Firstly, Eskom only
required a lease agreement and not a sale agreement. Secondly,
the sale agreement
was never presented to Eskom and remains so
unpresented.
[27]
The allegation by the second defendant in
order to avoid the consequences of her sequestration application
bears scrutiny.
Mr du Toit frequented the property literally
every single day and the second defendant has always resided in the
main house on
the property and she did not reside in a container as
alleged by her. Coupled with this, the allegation that the plaintiff
lived
in the property was also devoid of all truth. She resides
with Mr du Toit in Kraaifontein and she has done so for the last
(20)
years and still so resides.
[28]
The cross-examination of Mr du Toit was of
no moment. It focused primarily on attempting to create a
dispute in connection
with the amounts loaned and advanced to the
deceased. Also, the amounts Mr du Toit invested into the
business of the farming
venture were placed in dispute. On the
core issue of the signing of the sale agreement it was suggested that
the agreement
was signed at the home of Mr du Toit at 15h00 on the
25
th
of November 2013. Nothing more and nothing less. No
engagement followed about the alleged different pages of the
agreement.
This was after all the foundation of the second
defendant’s defence advanced in the defendants’ amended
plea.
[29]
As far as the payment to the third
defendant was concerned, it was initially conceded by the defendants
that all these payments
due were received by the third defendant.
This concession was later retracted on the basis that same was
incorrectly tendered.
Nothing turns on this for two reasons.
Firstly, it hardly lies in the mouth of the defendants to dispute the
extent of the
payments to the third defendant. Secondly, the
third defendant deposed to an affidavit confirming that she had been
paid
in full. In addition, documentary proof was submitted to
the effect that the third defendant had been paid for her undivided
half-share in and to the property.
Mr
van Blerk
[30]
This was the final witness to be called on
behalf of the plaintiff. He is a practising litigation attorney
with some standing
of (40) years. He is the attorney for the
plaintiff. He testified about two collateral aspects in
connection with two
connected applications to the action
proceedings. Firstly, an interdict application was launched by
the plaintiff to prevent
the second defendant from alienating the
property pending the outcome of the action proceedings. Secondly,
he commented on
certain disputes created by the second defendant to
avoid a sequestration order being granted against her.
[31]
With regard to the former, a costs order
was obtained against the second defendant which was subsequently
taxed and allocated by
the taxing master. When same was not
paid, the plaintiff launched a sequestration application. In
order to create a
dispute in connection with these allocated taxed
costs, the second defendant belatedly alleged that the agreement that
the second
defendant would be liable for the costs of (2) counsel was
obtained by deceit at the hands of the plaintiff’s counsel.
[32]
Mr van Blerk testified that the dispute
created by the second defendant was buttressed by dishonesty.
Never had this issue
ever arisen during the taxation. To the
contrary, at the taxation, certain amounts in connection with
counsel’s fees
were taxed off, by agreement. According to
him, the two versions offered up by the second defendant are simply
irreconcilable
on this score. Curiously, this dispute only
featured for the first time, about (2) years after the taxation of
the costs
had been finalized. More significantly, an allegation
was made to the effect that the order which recorded the agreement in
connection with the payment of the costs of (2) counsel, would form
the subject of a rescission application. Not surprisingly,
no
such application has been launched.
The
Defendants’ Case
Mrs
Coetze
[33]
She met the deceased in and during
September 2013. Within days of becoming acquainted with the
deceased she moved in with
him lock, stock and barrel. They
were married in community of property about (7) months later.
She remained unemployed
but testified that she did assist the
deceased with certain administrative duties on the farm. She
confirmed that the deceased
and Mr Du Toit were business partners in
so far as this related to the farming operations on the property.
She held the view
that the deceased only wished to sell half of
his farm to the plaintiff. She held no factual basis for this
belief.
[34]
She testified that she only signed as a
witness to either the lease agreement, or the sale agreement at the
home of the plaintiff.
This occurred in Kraaifontein.
According to her the lease agreement was not signed on the property
and the sale agreement
was signed in Kraaifontein. She never
went to the plaintiff’s place of employment in Brackenfell.
These allegations
do not at all sit well with the factual evidence
buttressed by the signatures as set out in the two agreements.
She conceded
that she did not apply her mind to the content of any of
the agreements when she signed as a witness.
[35]
Significantly according to her, the
plaintiff was not present at the time of the signature of the sale
agreement. Again, this
does not sit well with the objective
evidence gleaned from the lease agreement and the sale agreement.
She was confronted
about her allegation that the sale agreement was
an orchestrated campaign merely to deceive Eskom so to restore the
electricity
supply to the property. Her version on this score
leaves a lot to be desired in view of the fact that she did not bear
any
knowledge of the agreements, to which she bore witness.
[36]
She was asked to comment on the various
defences raised in her plea. At best for her, she could not
explain why these defences
were raised. As a last resort she
placed the blame for this on her attorneys of record. She was
unable to explain the
shield raised in connection with the missing
pages of the sale agreement when same was allegedly signed.
This in the context
of the objective evidence that the sale agreement
only consisted of (1) page. Not surprisingly, she was unable to
offer up
any explanation.
[37]
She was driven to concede that Mr du Toit
had indeed settled the amount due to the third respondent. This,
in connection with
the undivided half-share of the property
registered in the name of the third defendant. She was also
unable to dispute that
Mr Du Toit continued to pay the mortgage bond
instalments over the property, pending registration of transfer into
the name of
the plaintiff.
[38]
She was a very poor witness. She was
evasive and argumentative. When she found it difficult to answer
relatively simple questions,
her standard retort was to blame her
attorneys. She also utilized the lay person defence
frequently. This, surprisingly
in connection with factual
enquiries. She was asked to comment on certain aspects of her
affidavit filed in opposition to
her sequestration application.
Some of her replies in this connection were simply astonishing to say
the least. More
about this later.
Mr
Coetze
[39]
He is the deceased’s brother. This
witness attempted to introduce evidence of a hearsay nature. This
gallant attempt
was met with an objection for want of a foundation
for an exception to the rules of evidence. It subsequently
became clear
that the evidence sought to be tendered would have in
any event been irrelevant. None of this evidence bore any relation to
any
communications with the deceased prior to the conclusion of the
agreement of sale. Needless to say, this evidence was ruled
to
be inadmissible.
Discussion
[40]
The defendants raised a number of defences to the
action which were formulated in their plea.
Firstly, the
defendants averred that the sale agreement did not comply with the
requirements of the Alienation of Land Act.
Mr de Waal
euthanized this defence when he testified that the deceased was
entitled to have entered into the sale agreement
without the
assistance of the third defendant. This legal position was
accepted by the defendants.
[41]
Secondly, the defendants raised a defence to the
effect that the sale agreement consisted of (4) pages of which, only
the last page
was presented to the deceased and the second defendant
for signature. When confronted with the sale agreement, which
consists
only of (1) page
[14]
, the second defendant had no choice but to concede that the defences
raised by her were untruthful. This defence was an
opportunistic manoeuvre to attempt to cast doubt over the validity of
the sale agreement.
[42]
The second defendant further advanced that the plaintiff was not
present when she signed as a witness to the plaintiff’s
signature. It would not have made sense to have recorded that
the lease agreement was signed at the property, if it had been signed
in Kraaifontein. Similarly, it would not have made
any sense
for the deceased to have recorded that he signed the sale agreement
at the property and for the plaintiff to have recorded
that she
appended her signature in Brackenfell, if the sale agreement was
signed at Kraaifontein. The probabilities are overwhelming
that
the agreements were signed at the places so recorded in the
respective agreements.
[43]
Thirdly, it is advanced that the sale agreement was champetas and
entered into with the sole intention of defrauding Eskom. There
is not an iota of evidence to support this allegation.
It
became apparent during the testimony of the second defendant that she
was not privy to the discussions between the deceased
and Mr du Toit
at the time when the sale agreement was signed. The second
defendant was aware of the looming electricity
issue with Eskom and
that an agreement was entered into in order to have the electricity
supply account transferred from the deceased
to Mr du Toit. She
could not dispute that a lease agreement was entered into for
specifically for this purpose. She
merely made an assumption
that the sale agreement was entered into for the same purpose since
it was signed on the same day as
the lease agreement. This is
precisely why she could not explain why the sale agreement was
entered into with the plaintiff
and not with Mr du Toit.
[44]
The uncontested evidence by Mr du Toi was that only the lease
agreement
was handed to Eskom. Eskom entered into an
electricity supply agreement with Mr du Toit and he thereupon made
payments to
Eskom in terms of such supply agreement. No reason
existed for a sale agreement to be entered into between the deceased
and
the plaintiff for the same purpose. What also remains
unexplained is the reason why Mr du Toit went to great lengths to
settle
the indebtedness of the deceased to his ex-wife. This
was in order to acquire her undivided half-share in and to the
property.
[45]
Both the plaintiff and her husband testified about the facts and
circumstances which culminated in the parties eventually entering
into the sale agreement. This evidence was supported by
contemporaneous notes made by Mr du Toit with reference to the
payments made by the plaintiff in respect of the bond and rates
over
the property in terms of the sale agreement.
[46]
The inescapable conclusion is that the defence of fraud was raised
so
as to avoid the consequences of a valid sale agreement. A
litigant wishing to rely on fraud must prove it clearly and
distinctly. The defendants’ evidence falls far short from
discharging this heavy onus.
[47]
Finally, the defendants aver that the plaintiff should have submitted
a claim to the first defendant as opposed to pursuing her action
proceedings.
It is common cause that the
untimely demise of an owner of immovable property does not have the
guillotine effect of rendering a
validly executed deed of sale
invalid. The executrix in and to the deceased estate steps into the
shoes of the deceased and is
obliged to give transfer to the
purchaser, subject to a valid and binding agreement having been
executed.
Accordingly,
it is not
clear on what basis the defendants suggest that it would be necessary
for the plaintiff to submit a claim to the first
defendant. In
these circumstances the plaintiff had already claimed transfer of the
property and the first defendant had
already rejected her claim in
writing.
[48]
Belatedly, in their heads of argument the
defendants now raise a number of further purely technical defences.
It is submitted
that the sale agreement is an illegal agreement and
that it falls foul of section 2 (1) of the Alienation of Land Act.
These
arguments may be dealt with swiftly. It is suggested that
because the property was valued at a greater value than the purchase
price, this is accordingly a fraud on the fiscus. Mr de Waal
explained what the plaintiff would have to do to obtain a transfer
duty clearance certificate to obtain registration of transfer into
her name. For this reason, this defence is still born.
[49]
Further, it is suggested that the identity of the
purchaser is problematic and accordingly the sale agreement does not
comply with
provisions of the Alienation of Land Act. To the
contrary, the identity of the purchaser was and has never been in
doubt.
Similarly, this defence has no merit and the purported
decided authorities cited by the defendants on this score, are
singularly
unhelpful.
[50]
A further argument is now advanced that the
purchase price has not been paid by the purchaser for the property.
The sale agreement
records that the purchase price has been paid save
for the mortgage bond over the property that falls to be extinguished
by the
purchaser. The unassailable evidence is that the
purchaser has been paying the bond instalments on a monthly basis,
this
with the acquiescence of the defendants. The purchaser
will also as a matter of law need to extinguish the mortgage bond in
order to be able to transfer the property into her name. This
defence is unappealing, to say the least.
[51]
In a last ditch effort to find some support for
the defences raised by the defendants, it is suggested that the
evidence by the
second defendant was honest and consistent. It
is suggested that she was confused and nervous when she testified in
court.
I disagree. This does not explain her untruthful
statements made under oath in the various connected applications.
As mentioned, she was evasive and argumentative which are hardly
features attributable to a nervous witness.
Costs
[52]
One of the fundamental
principles of costs is to indemnify a successful litigant for the
expense put through in unjustly having
to initiate or defend
litigation. The successful party should be awarded costs.
[15]
The last thing that already congested court rolls require is further
congestion by an unwarranted proliferation of litigation.
[16]
[53]
It is so that when
awarding costs, a court has a discretion, which it must exercise
judiciously and after a due consideration of
the salient facts of
each case at that moment. The decision a court takes is a
matter of fairness to both sides.
[17]
The court is expected to take into consideration the peculiar
circumstances of each case, carefully weighing the issues in each
case, the conduct of the parties as well as any other circumstance
which may have a bearing on the issue of costs and then make
such
order as to costs as would be fair in the discretion of the court.
[54]
No hard and fast rules
have been set for compliance and conformity by the court unless there
are special circumstances.
[18]
Costs follow the event in that the successful party should be awarded
costs.
[19]
This rule should be departed from only where good grounds for
doing so exist.
[20]
[55]
In
Potgieter
[21]
,
a general rule was formulated that a personal order for costs against
a litigant occupying a fiduciary capacity is justified where
the
conduct in connection with the litigation in question has been mala
fide, negligent or unreasonable. The conduct of the
fiduciary
must evidence improper conduct which deviates from the standards of
conduct to be expected of the fiduciary.
[22]
[56]
The plaintiff not only seeks a special
punitive costs order, but also seeks this order against the attorneys
representing the defendants.
In support of this request, the
following issues in connection with the expert evidence were
emphasized; that the defendants had
no basis in fact or law to
disagree with the evidence of the expert regarding the validity of
the sale agreement; that the plaintiff’s
expert notice was
served as early as the 23
rd
of December 2020 and that the defendants’ legal team made no
effort to rebut or engage with this expert evidence.
[57]
In connection with the defence raised by
the defendants that the plaintiff’s claim should have been
submitted to the executrix,
it is merely pleaded that the defendants
surmise that this should have been done. No actual legal
defence was ever formulated
and presented, which may be indicative of
a degree of negligence on the part of the defendants’
attorneys.
[58]
After receipt of the summons and
particulars of claim containing a copy of the sale agreement printed
on (4) pages, the defendants
pleaded that the agreement consisted of
(4) pages and that the second defendant and the deceased did not
receive pages (1), (2)
and (3). Further, that page (4) was
presented alone and signed under an alternative pretence. When
confronted with
the fact that the sale agreement consisted of a
single page, the second defendant stated she and her attorneys had
formulated this
defence.
[59]
The second defendant alleged that the sale
agreement was drafted with the intention of defrauding Eskom and was
an elaborate plan
to dupe Eskom. The second defendant conceded
that she and her attorneys had spoken about these matters and that
any questions
in this connection should be posed to her attorneys of
record. These potentially ruinous allegations against Mr du
Toit were
made without any factual basis.
[60]
During November 2016, the plaintiff applied
for the granting of an urgent interdict to prevent the defendants
from marketing, selling,
encumbering or alienating the property
pending the issuing of the summons and the determination of the
present action in circumstances
where the defendants had refused to
provide an undertaking in this connection.
[61]
The second defendant opposed the
application and neglected to file any answering papers, this
notwithstanding the postponement of
the matter for a period of nearly
(3) months and an agreement on a timetable to afford her an
opportunity to do so. The relief
sought by the plaintiff, including
the costs of (2) counsel, was subsequently granted by agreement
between the parties.
[62]
In opposing a
subsequent sequestration application
[23]
,
the second defendant deposed to an affidavit in which she alleged,
inter alia
,
the following; that an agreement was reached in the interdict
application between the plaintiff’s junior counsel and
the
second defendant’s counsel that only the costs of (1) counsel
would be allowed and that the costs of (2) counsel was
provided for
by deceit in the order, notwithstanding this agreement; that
c
ounsel
for the second defendant would obtain permission to depose to an
affidavit confirming the agreement if necessary; that
the
second defendant’s attorney was not present at the taxation due
to an administrative oversight and that an application for
a
rescission of the order was in the process of being drafted on the
basis that no agreement was reached for the award of the costs
of (2)
counsel.
[63]
In the same affidavit, the second defendant
alleged that the plaintiff was fully aware that the second defendant
resided in a container,
on the property as the plaintiff resided on
the property. Further, that the plaintiff was fully aware of
these facts when
she launched the sequestration application and was
intentionally economical with the truth and was driven by an ulterior
motive
to attach the property. This, by means of the insolvency
process.
[64]
Mr van Blerk, refuted the allegations
regarding the agreement in connection with the costs of (2) counsel
and the allegation that
the second defendant’s attorney did not
attend the taxation. The second defendant was driven to concede
that the allegations
made by her regarding to living in a container
were also untrue.
From an evaluation of the evidence,
regretfully it seems apparent that the second defendant has been a
stranger to the truth on
many occasions during the course of this
unfortunate litigation between the parties.
[65]
I was informed at the
commencement of the trial that the plaintiff would not persist with
the her application to declare last will
and testament of the
deceased to be invalid.
[24]
The first defendant opposed this relief notwithstanding the fact it
was admitted that the deceased’s last will and
testament did
not comply with certain formalities set out in sections 2(1)(a)(ii)
and 2(1(a)(iii) of the Act.
[25]
[66]
Shortly before the scheduled hearing of
this application, the first defendant filed a conditional
counter-application seeking an
order declaring the will to be the
last will and testament of the deceased. As I understand
matters, if the plaintiff is
successful in these action proceedings,
then the validity of the deceased’s last will and testament,
together with the appointment
of the first defendant as the executrix
in and to the deceased’s estate, will be of academic interest
to the plaintiff, save
for costs.
[67]
In all the circumstances of the matter, I
hold the view that a punitive costs order in this matter is warranted
for some of the
reasons set out in my judgment. I am not
persuaded that any costs order should be granted against the
defendants’ attorneys.
Whilst I do harbour some deep
suspicions about their alleged conduct during the course of this
litigation, I cannot visit the second
defendant’s lack of
candour on her attorneys, absent further evidence. That having
been said, it must have dawned on
the defendants shortly after the
filing of the plaintiff’s expert notices that the shields that
they had raised in the form
of their defences to the plaintiff’s
action were doomed to failure. It is for this reason that a
portion of the costs
awarded in this matter will be on the scale as
between attorney and client.
[68]
In the result, the following order is
granted;
1.
That the first defendant is ordered and directed to pass transfer of
the following
immovable property (‘the property’) to the
plaintiff, namely:-
‘
Portion 7 of farm number
737, Winelands Municipality, Paarl Division, Western Cape, held under
title deed T 90422 / 2011, in extent
6,3954 hectares, better known as
Farm Eindbegin, Protea Road, Klapmuts’
2.
That the first defendant is ordered and directed to sign all the
necessary and required documents
and take all such necessary steps as
may be required to effect registration of the transfer of the
property into the name of the
plaintiff.
3.
That in the event that the first defendant fails or neglects to
comply with the steps as
set out in paragraph (2) as set out above,
within (7) days after being requested to do so, then in that event,
the Sheriff of the
High Court (Cape Town, West), is hereby authorized
to sign all such documents and take all such necessary steps to
effect registration
of transfer of the property into the name of the
plaintiff.
4.
That the first and second defendant, jointly and severally, the one
paying the other to be
absolved, shall be liable for the costs of and
incidental to the action on a party and party scale (including costs
of two counsel
where so employed), as taxed or agreed, from the
inception of this matter until the last day of December 2020.
5.
That the first and second defendant, jointly and severally, the one
paying the other to be
absolved, shall be liable for the costs of and
incidental to the action on an attorney and client scale (including
costs of two
counsel where so employed), as taxed or agreed, from the
1
st
of
January 2021 and thereafter. These costs shall include the qualifying
expenses and costs of and incidental to the testimony
of Mr de Waal,
as an expert witness.
6.
That in the event that the parties are unable to amicably resolve all
the costs issues in
connection with the plaintiff’s application
relating to the validity or otherwise of the last will and testament
of the deceased,
then in that event, either party is hereby
authorized to enrol the latter application (for hearing before Mr
Justice Wille), on
notice, on the same papers, supplemented in so far
as may be necessary, for the determination of the costs of and
incidental to
the plaintiff’s application relating to the
validity or otherwise of the last will and testament of the deceased.
E. D. WILLE
Judge of the High Court
[1]
The main action
[2]
The remainder of
Portion 7 of farm number 737, Winelands Municipality, Paarl (‘the
property’)
[3]
Act 68 of 1981
[4]
Act 47 of 1937
[5]
The section 45 (bis)
endorsement, would merely be marked number (1) at the time of
lodgment
[6]
This until at least
2019
[7]
Template pro-forma
agreements
[8]
Two originals were
completed and signed
[9]
In Brackenfell
[10]
As the purchaser
[11]
Not in a ‘container’
in the property as suggested in a prior affidavit
[12]
In an effort to avoid a
sequestration application
[13]
During March of 2013
[14]
An
A3
size single page, printed on both sides
[15]
Union Government v Gass
1959 4 SA 401 (A)
413.
[16]
Socratous v Grindstone
Investments
(149/10)
[2011] ZASCA 8
(10 March 2011) at [16].
[17]
Intercontinental
Exports (Pty) Ltd v Fowles
1999
(2) SA 1045
(SCA)
at 1055F- G
[18]
Fripp v Gibbon &
Co
1913 AD
354
at 364.
[19]
Union Government v Gass
1959 4 SA 401 (A)
413.
[20]
Gamlan Investments (Pty)
Ltd v Trilion Cape (Pty) Ltd
1996 3 SA 692
(C)
[21]
In re Potgieter’s
Estate
908
TS 982
[22]
Vermaak’s
Estate v Vermaak’s Heirs
1909
TS 679
at 691
[23]
Launched as a result of the
defendant’s failure to pay the taxed costs in the interdict
matter
[24]
This instituted by way
of a discrete application
[25]
Wills Act 7 of 1953