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[2014] ZAGPJHC 183
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Gifprops (Proprietary) Limited v Gordon N.O. and Another (17417/2012) [2014] ZAGPJHC 183 (18 August 2014)
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REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
17417/2012
In
the matter between:
GIFPROPS
(PROPRIETARY)
LIMITED
.............................................................................
Applicant
And
DAVID
GORDON
N.O
.................................................................................................
First
Respondent
THE
REGISTRAR OF DEEDS
PRETORIA
........................................................
Second
Respondent
JUDGMENT
OPPERMAN
AJ
NATURE
OF APPLICATIONS
[1]
In this application the applicant seeks the following relief:
1.1.
declaring that it is the owner of the immovable property constituted
by Erf […], W[…] Extension 124, situate
at 13 E[…]
Street, C[…], W[…], Johannesburg (“the
property”);
1.2.
and flowing from such declaratory relief, a further order directing
the first respondent to forthwith take the steps necessary
and sign
the documents necessary to effect registration of transfer of the
property into the name of the applicant.
[2]
There are two further applications which are of moment to the present
proceedings being:
2.1.
an application for security for costs brought by the first respondent
against the applicant in the present application (“the
security
for costs application”); and
2.2.
an application for eviction brought by the first respondent against
one Gillian Helen Silcock (“Ms Silcock”) under
case
number 16995/2012 (“the eviction application”).
[3]
By agreement between the applicant, the first respondent and Ms
Silcock: The outcome of this application will be determinative
of the
outcome of the eviction application in that, should the applicant
succeed in this application, the eviction application
is to be
dismissed, and conversely, should the applicant fail in this
application an order for eviction in terms of the eviction
application is to ensue. The parties are in agreement that a period
of 2 (two) months would be reasonable period for Ms Silcock
to vacate
the property. The security for costs application does not require
determination, and each of the parties thereto are
to bear their
respective costs as a result thereof.
INTRODUCTION
[4]
Simon Wolf Feinstein (“
Mr
Feinstein
”) passed away in 2011.
Prior to him passing away, Mr Feinstein and Ms Silcock were close
friends. Ms Silcock contends that
they were never involved in a
physical relationship but that Mr Feinstein had expressed his desire
to marry her on a number of
occasions. Ms Silcock and her children
have lived in the property owned by Zelpy 2098 (Proprietary) Limited
(‘Zelpy’)
since April 2007. Levy statements were
submitted to the Applicant and paid for by Mr Feinstein. It is clear
that Mr Feinstein contemplated
making a donation to Ms Silcock of
this property. He took some steps to achieve this. He acquired a
shelf company during 2004 and
changed it’s name to incorporate
the first two letters of Ms Silcock’s name and the first letter
of Mr Feinstein’s
surname to form the name of the applicant. On
25 November 2004 Ms Silcock became the sole director and sole
shareholder of the
applicant. During December 2004 the Applicant
concluded a written sale agreement to purchase the property from
Zelpy. That transfer
never took place. No explanation has been
provided as to why this did not occur. During 2006 Mr Feinstein
expressed his disappointment
in regard to the fact that Ms Silcock
was not reciprocating his feelings. It was also in mid-2006 that Mr
Feinstein commenced a
relationship with one Tracy Rose who he
subsequently married. Mr Feinstein purchased the property
during October 2006 from
Berkeley Developments (Proprietary) Limited
(‘
Berkeley
’)
and registered the property, not into the name of the applicant, but
into his own name. Zelpy had changed it’s
name to
Berkeley. In his will, which is dated 29 June 2009, he bequeathed all
his assets to Tracy Rose save for certain monetary
sums which he
wanted his children and his wife from a previous marriage, to
receive. Neither the property, nor Ms Silcock, are
mentioned in his
will. Once Mr Feinstein passed away, the applicant, through Ms
Silcock, asserted a claim to the property, but
only after Ms Silcock
had submitted a claim in respect of improvements she had made in
respect of the property.
THE
RELEVANT FACTS
[5]
The first respondent is the duly appointed
executor to the estate of the late Mr Feinstein, having been so
appointed on the 14th
day of November 2011, Mr Feinstein having
passed away on the 25th of October 2011.
[6]
Prior to the death of Mr Feinstein, and on
the 25th of November 2004, a written agreement was concluded between
Ms Silcock on the
one hand, and Mr Feinstein, on the other (“
the
Share Transfer Agreement
”).
[7]
The terms of the Share Transfer Agreement
included the following:
7.1.
From the effective date, which was
identified as being the 25th of November 2004, Ms Silcock was to
become the sole shareholder
and director of the applicant;
7.2.
In the future, Mr Feinstein was to take
steps for the applicant to acquire the property and such was to be
fully paid for;
7.3.
Under certain specified conditions there
was to be a revision in the shareholding and directorship in the
applicant, one of which
was specified in the following terms:
“
Simon
finds a partner entering his life, and thereafter Gill may vacate the
cluster.
”
7.4.
By way of security in favour of Mr
Feinstein, Ms Silcock was required to sign a blank share transfer
form in respect of all of the
issued share capital in the applicant.
[8]
On the same day, namely the 24th of
November 2004 Ms Silcock became the sole director and shareholder in
the applicant.
[9]
On the 9th of December 2004 Mr Feinstein
purporting to represent the applicant made a written offer to
purchase the property from
Zelpy which offer was accepted on the 10th
of December 2004 (“
the first sale
agreement”
).
[10]
The first sale agreement was expressly made
subject to the following condition, namely:
“
Building
contract
15.1
This offer to purchase is subject to the successful conclusion by the
purchaser of a building contract in respect of the property
and
attached hereto marked “Annexure D” within 2 (two) months
of the date of signature of this agreement by the purchaser
…
”
[11]
In terms of clause 1 thereof the purchase
price was to be the sum of R100 000, to be paid against
registration of transfer
of the property into the name of the
applicant, but to be secured by an approved banker’s guarantee
in a form acceptable
to Zelpy payable free of exchange and to be
furnished within 45 days of the date of the acceptance of the offer
by Zelpy.
[12]
No allegation that a building contract as
alleged or otherwise had been concluded within the required period,
is made by the applicant
in any of the papers filed nor has any
evidence been presented that an approved banker’s guarantee had
been furnished within
45 days of the date of the acceptance of the
offer by Zelpy.
[13]
On the 30th of October 2006 (i.e. just
short of two years later) Mr Feinstein, acting personally entered
into a written agreement
(“
the
second sale agreement
”) for the
acquisition by him, in his personal capacity, of precisely the same
property, the seller thereunder being described
as Berkeley.
[14]
In terms of the second sale agreement:
14.1.
the conveyancing attorneys were identified
as Yammin Hammond & Partner, such being Berkeley’s
attorneys who was to attend
to registration of transfer of the land
into Mr Feinstein’s name, Mr Feinstein being under obligation
to sign all documents
relating to transfer in order to procure such;
14.2.
the purchase price of the property was
stated to be the sum of R200 000.
[15]
The property was transferred into Mr
Feinstein’s name on the 10th of September 2007.
[16]
Consequent upon the first respondent’s
appointment as executor to the estate of Mr Feinstein, and on the 2nd
of December 2011,
acting in terms of section 27 of the Administration
of Estates Act, Act No. 66 of 1965 (“
the
Act
”) the first respondent caused
a notice to be published both in the Government Gazette and in The
Star newspaper calling upon
all persons enjoying a claim in the
deceased’s estate to lodge such claim within 30 days.
[17]
Ms Silcock lodged a claim in her personal
capacity in respect of the property relating to payments made by Ms
Silcock in respect
of the property which she, at the time,
categorised as being Mr Feinstein’s property.
[18]
The claim so submitted by Ms Silcock was
rejected by the first respondent, and Ms Silcock did not pursue the
matter any further.
[19]
The applicant has lodged no further claim
in the estate.
THE
APPLICANT’S CASE, AND THE FIRST RESPONDENT’S ANSWER
THERETO
[20]
The applicant relies upon two principal
grounds for the relief sought by it namely:
20.1.
that the applicant is in fact the owner of
the property which has been incorrectly registered in Mr Feinstein’s
name; and
20.2.
the conclusion of the second sale agreement
constitutes an intentional and mala fide circumvention of the first
sale agreement permitting
of the relief sought by the applicant.
[21]
The latter contentions are premised upon
allegations advanced by the applicant in the further affidavit filed
by it in the security
for costs application and form the
subject-matter of a strike out application.
[22]
Each of the principal contentions relied
upon by the applicant are dealt with hereunder.
THE
APPLICANT’S OWNERSHIP OF THE PROPERTY
[23]
It is the applicant’s contention that
it is entitled to the declaratory order sought by it because the
property is in fact
owned by the applicant.
[24]
Resultant from the applicant’s
alleged ownership of the property the applicant contends that it is
accordingly entitled to
the subsequent relief sought in the Notice of
Motion, namely the relief compelling the first respondent to sign all
documentation
necessary to effect registration of transfer of the
property into the name of the applicant.
[25]
The case which the applicant seeks to make
out, so as to demonstrate its ownership of the property, is, premised
upon the contentions
that:
25.1.
it was never Mr Feinstein’s intention
to acquire ownership of the property but rather that the property be
acquired by, and
belong to, the applicant;
25.2.
the applicant’s deponent was under
the impression that registration of transfer into the name of the
applicant had in fact
taken place;
25.3.
the registration of transfer of the
immovable property into the name of Mr Feinstein on 10 September 2007
was a mistake.
[26]
The first respondent disputes that the
applicant is the owner of the property and contends that:
26.1.
there is no dispute between the parties
that Mr Feinstein was the registered owner of the property;
26.2.
as such the property is an asset in the
deceased estate;
26.3.
because the property is an asset in the
deceased estate, the Act requires the first respondent to take the
property into his custody,
possession and control and to sell the
property to the best advantage of the estate.
[27]
For
ownership to pass in respect of immovable property it is necessary,
inter
alia
,
for there to be registration of transfer thereof in the relevant
Deeds Office, inasmuch as ownership only passes against such
registration.
[1]
[28]
Although
it is,
inter
alia
,
a requirement for the passing of ownership of immovable property
under South African law, that the transferor must have both the
capacity and the intention of transferring ownership and the
transferee must have the intention of accepting ownership, provided
that registration of transfer has in fact taken place, non-compliance
with any of the requirements postulated for the passing of
ownership
will not prevent such ownership from passing, even if the person to
whom ownership has passed has received such in error.
[2]
In
Legator
McKenna Inc v Shea
,
2010 (1) SA 35
(SCA) Brand JA held as follows at p44:
"[20]
This brings me to the next enquiry. Should the transfer of the house
to the Erskines be regarded as valid despite the
invalidity of the
underlying sale which was the causa for the transfer? The appellants'
contention that it should, was rooted in
the assumption that the
abstract theory - as opposed to the causal theory - of transfer has
been adopted as part of our law. According
to the abstract theory the
validity of the transfer of ownership is not dependent upon the
validity of the underlying transaction
such as, in this case, the
contract of sale. The causal theory, on the other hand, requires a
valid underlying legal transaction
or iusta causa as a prerequisite
for the valid transfer of ownership (see eg
Trust
Bank van Afrika Bpk v Western Bank Bpk en Andere NNO
1978
(4) SA 281
(A) at 301H - 302H;
Van der
Merwe Sakereg
2 ed at 305 - 6). With
regard to the transfer of movables our courts, including this court,
have long ago opted for the abstract
theory in preference to the
causal theory (see eg
Commissioner of
Customs and Excise v Randles, Brothers & Hudson Ltd
1941 AD 369
at 398 - 399;
Dreyer and
Another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) ([2006]
3 All SA 219)
in para 17)."
[21]
Some uncertainty remained, however, with regard to the transfer of
immovable property. In the High Courts that uncertainty
has been
eliminated in a number of recent decisions where it was accepted that
the abstract system applies to movables and immovables
alike (see eg
Brits and Another v Eaton NO and Others
1984 (4) SA 728
(T) at
735E;
Klerck NO v Van Zyl and Maritz NNO and Related Cases
1989 (4) SA 263
(SE) at 273D - 274C; and
Kriel v Terblanche NO en
Andere
2002 (6) SA 132
(NC) at paras 28 - 49). These decisions
are supported by academic authors advancing well-reasoned arguments
(see eg
DL Carey-Miller: The Acquisition and Protection of
Ownership
at 128 - 30 and 168;
CG van der Merwe Sakereg op cit
at 305 - 10; CG van der Merwe & JM Pienaar 2002 Annual Survey 466
at 481;
Badenhorst, Pienaar & Mostert Silberberg &
Schoeman's The Law of Property
5 ed at 76). In view of this body
of authority I believe that the time has come for this court to add
its stamp of approval to
the viewpoint that the abstract theory of
transfer applies to immovable property as well.
[22]
In accordance with the abstract theory the requirements for the
passing of ownership are twofold, namely delivery - which
in the case
of immovable property is effected by registration of transfer in the
deeds office - coupled with a so-called real agreement
or 'saaklike
ooreenkoms'. 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 (see
eg
Air-Kel (Edms)
Bpk h/a Merkel Motors v Bodenstein en 'n Ander
1980 (3) SA 917
(A) at 922E-F;
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd supra
at para 17). 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, eg sale,
ownership will not pass - despite registration of transfer - if there
is a defect in the real agreement (see eg
Preller
and Others v Jordaan
1956 (1) SA 483
(A) at 496;
Klerck
NO v Van Zyl and Maritz NNO supra
at 274A - B; Silberberg J and
Schoeman
op cit
at 79 –
80)."
[29]
The
applicant accepts that Mr Feinstein concluded the second sale
agreement and that pursuant thereto the property was registered
into
Mr Feinstein’s name. Both the act of concluding the second sale
agreement and its terms, are incompatible with any intention,
other
than that Mr Feinstein intended to become owner of the property
pursuant thereto. The very act of registration into the name
of Mr
Feinstein, which per force requires,
inter
alia
,
the intervention of a conveyancer and the granting of a power of
attorney to such conveyancer
[3]
,
are incompatible with any intention other than the intention to
transfer ownership of the property, not to the applicant, but
to Mr
Feinstein.
[30]
The vast majority of
factual matter relied upon by the applicant to demonstrate an
intention at variance with an intention to accept
ownership, predates
Mr Feinstein having personally concluded the second sale agreement
(which was concluded on 30 October 2006),
such as, for example, the
conclusion of the share transfer agreement (concluded on 25 November
2004), the transfer of shareholding
in the applicant to Ms Silcock
(25 November 2004), the conclusion of the first sale agreement (9
December 2004) and the correspondence
with the conveyancing attorneys
who were instructed to attend to registration of transfer of the
property from Zelpy into the name
of the Applicant (which did, in any
event, not occur).
[31]
Had Mr Feinstein
intended to transfer ownership of the property, not to himself, but
to the applicant it is inexplicable that he
would either have entered
into the second sale agreement, or given effect thereto pursuant to
the conclusion thereof, or caused
transfer to be registered into his
own name.
[32]
Such conduct on behalf
of Mr Feinstein is the antithesis of the purported intention that the
applicant asserts Mr Feinstein held
at all material times.
[33]
Cardinal to the
determination of this application is accordingly the explanation
proffered by the applicant for this conduct on
the part of Mr
Feinstein.
[34]
The founding affidavit
deposed to on its behalf merely states that:
“
I
do not know why Simon entered into the Berkeley Development
agreement.”
[35]
The contention, advanced by the applicant,
that registration of transfer of the property into Mr Feinstein’s
name was a mistake,
is an inference which the applicant seeks to draw
in the factual matrix as presented by it.
[36]
In a civil context, for the applicant to
rely upon the inference in question it must demonstrate:
36.1.
that
the inference which it contends for is consistent with all of the
proven facts; and
36.2.
the
proven facts render the inference more probable than any other
reasonable inference
[4]
.
[37]
In light of what is set out above, the
applicant’s reliance upon the inference contended for by it,
fails on both scores.
[38]
It is contended by the applicant that its
case is,
inter alia
,
to be adjudicated upon the fourth set of affidavits filed by it in
the security for costs application, and the matters communicated
by
Mr Feinstein to the persons therein referred to. These matters
include:
38.1.
In regard to the intention of Mr Feinstein
in respect of the property, Mr Feinstein’s intention is
confirmed by :-The other
close friend and personal assistant of Mr
Feinstein, Ms Lynch, who knew Mr Feinstein for many years and who
contends that it was
always the intention of Mr Feinstein, as
expressed by him to her on many occasions, that the property would
belong to Ms Silcock.
Mr Feinstein had reportedly referred to the
property as “
Gill’s home
”
and had stated to Ms Lynch that Ms Silcock would own the property.
38.2.
Other friends and business associates of Mr
Feinstein who had also confirmed the intention of Mr Feinstein in
regard to the property,
were, Raymond Thomas Albert Charles
Nethercott, Carla Maria Veloso Colaco and Tinette Michelle
Underdown.They all express shock
and surprise that the property is
not registered in Ms Silcock’s name.
[39]
The first respondent has applied for the
striking out of the allegations so relied upon, inter alia, upon the
basis that such constitutes
impermissible hearsay evidence and is
argumentative and speculative in nature.
[40]
The applicant acknowledges that the
statements therein relied upon constitute hearsay evidence but
requests that the communications
be reveived for the truth of the
content thereof. Section 3(1)(c) of the Law of Evidence
Amendment Act, Act 45 of 1988
(‘
the
Law of Evidence Amendment Act’
)
provides:
"3.Hearsay
evidence. -
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless-
(
a
)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(
b
)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(
c
)
the court, having regard to—
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is of the opinion that such
evidence should be admitted in the interests of justice.”
[41]
Hearsay evidence is not to be admitted in
civil proceedings unless: the person against whom such evidence is to
be adduced agrees
thereto (which is manifestly not the case in the
present proceedings); or the person upon whose credibility the
probative
value of such evidence depends himself testifies at such
proceedings (once again that element is absent in that Mr Feinstein,
the
deceased, cannot speak to the issue); or the Court permits
the receipt of such evidence having regard to the factors specified
in section 3(1)(c) of the Law of Evidence Amendment Act.
[42]
I am mindful of the caution issued by
Du
Plessis J in Hewan v Kourie NO
,
1993
(3) SA 233
(TPD) at 239F being that the flexibilty introduced into
the rule by Section 3(1)(c) should not be negated by also introducing
reliabilty
as an overriding requirement.
[43]
In considering the factors so postulated,
the evidence relied upon in the present matter ought, in my view, not
to be admitted (I
am not making an order in respect of the striking
out application but disregard such evidence for purposes of
adjudicating this
matter) :
43.1.
The nature of the proceedings are
application proceedings, and thus the hearsay evidence will not be
exposed to trial-like scrutiny,
unless this Court should both admit
the evidence, and direct that the deponents be subjected to
cross-examination;
43.2.
The nature of the evidence in question is
of an inherently dangerous type in that reliance thereon presupposes
not only that the
deponents have honestly and accurately conveyed
what was communicated to them and when this occurred, but in
addition, that Mr
Feinstein, if he in fact communicated the matters
relied upon, was himself being honest and accurately communicated his
intentions;
43.3.
The purpose for which the evidence is
tendered (i.e. its purported probative value) is in order to
establish what, on the applicant’s
version, lies at the very
heart of its case, namely the true intention of Mr Feinstein, and the
purported mistake made by him in
transferring ownership of the
property into his own name.
[44]
The
admission of such evidence will be prejudicial to the first
respondent who, it must be remembered, acts in his representative
capacity as the duly appointed executor.
[45]
In
the ultimate result, even if this Court admits the evidence it will
still be required to speculate as to whether Mr Feinstein,
if he in
fact communicated the matters relied upon by the applicant to the
said deponents, was seeking to truly communicate his
thoughts, or was
rather seeking to portray a state of affairs not reflective of the
truth, for whatever reason, whether it be to
perpetuate a
relationship with Ms Silcock, despite the truth, whether to hold
himself out as being of a philanthropic and altruistic
persuasion, or
for any other of a myriad number of reasons.
[46]
Should
this Court permit the receipt of the matter it then bears emphasis
that:
46.1.
in
terms of the affidavit deposed to by Ms Lynch it was during mid-2006
that, on her version, Mr Feinstein expressed to her disappointment
in
regard to the fact that Ms Silcock was not reciprocating Mr
Feinstein’s feelings;
46.2.
it
was also in mid-2006 that Mr Feinstein commenced a relationship with
one Tracy Rose, whom he subsequently married.
[47]
It
is hardly coincidental therefore that it was at or about the time
that Mr Feinstein was not only feeling, but expressing his
disappointment vis-à-vis Ms Silcock, and at a point in time
where he had already commenced dating the person who subsequently
became his wife, that he concluded the second sale agreement in terms
of which he personally sought to acquire the property.
[48]
There is good reason to doubt the veracity
of the allegations advanced by Ms Silcock on behalf of the applicant,
as to the intention
of Mr Feinstein, in that certain of her conduct
is incompatible therewith. At a very early stage in the interaction
between Ms
Silcock and the first respondent, and as far back as
December 2011, Ms Silcock did not seek to contend that the applicant
was the
owner of the property, or that it had mistakenly been
registered into Mr Feinstein’s name.
[49]
On the 12th of December 2011 Ms Silcock
(but not the applicant) lodged a claim against the estate of Mr
Feinstein in respect of
monies expended by her on the very property
at issue in this matter.
[50]
In terms thereof Ms Silcock gave
notification of her claim:
“
for
payments made by Gillian to Simon’s property, 23 Village on
Avon, 13 Elm Avenue, Craigavon.
”
[51]
The First Respondent seeks to draw the
inference that because Ms Silcock did not contend at that stage that
the Applicant is the
true owner of the property or make any of the
other contentions that she has in the main application and the
eviction application,
that the main application is meritless. This
argument is not without merit. Ms Silcock explains that at the time
she did not think
that it was necessary to make reference to the
property belonging to the Applicant. She explains that she was
lodging a claim in
the estate of Mr Feinstein, and at the time she
did not apply her mind to the issue of who in fact owned the
property. She contextualises
her situation explaining that at the
time she was not legally represented and did not have the benefit of
legal advice and when
she started communicating with the First
Respondent he had advised Ms Silcock that the property was registered
in Mr Feinstein’s
name. She had not been made aware of the
legal position that the registration of the property in Mr
Feinstein’s name was
not definitive of the situation.
[52]
This explanation is not entirely
reconcilable with the position adopted in the founding affidavit of
this application. Ms Silcock
explains that subsequent to the first
sale agreement, she was under the impression that registration of
transfer of the property
had taken place into the name of the
Applicant and that the Applicant was in fact the registered owner of
the property. It must
have come as quite a shock that the property
was not registered in the applicant’s name. She didn’t
raise this with
the first respondent during their initial exchanges.
One would have thought that it would have been the first thing she
would’ve
raised, irrespective of assistance by legal
representatives. First and foremost, most certainly from Ms Silcock’s
perspective,
is the factual position (not legal construction), that
she thought the Applicant was the registered owner. She didn’t
raise
this issue at all. She didn’t contend that a mistake had
occurred. Instead, she submitted a claim for improvements or payments
made to ‘
Simon’s property’
.
[53]
On
15 February 2012 Ms Silcock submitted a written offer to the first
respondent to purchase the property at a reduced purchase
consideration. She contended that she did this in order to resolve
the matter and she did so without prejudice to her, as well
as the
Applicant’s rights. To the best of Ms Silcock’s
knowledge, the estate of Mr Feinstein is insolvent or will not
have
much to distribute, and Ms Silcock believed that it was the right
thing to do, towards the estate of Mr Feinstein and in particular,
the beneficiaries thereof, being Mr Feinstein’s three children,
Leonard, Natalie and Steven.
[54]
The
applicant’s reliance on the absence of any mention of the
property in Mr Feinstein’s will, for the purpose of
demonstrating
the intention of Mr Feinstein (as relied upon by the
applicant), is untenable. The will specifically provides that
all property,
other than that specifically mentioned, is bequeathed
to Ms Tracy Rose, his wife. To suggest that,
because there
is no mention of the property in the will, Mr Feinstein
did not regard the property as an asset in his estate, is incorrect.
It would first be necessary for the applicant to demonstrate that Mr
Feinstein, in referring to the other assets, had in mind assets
other
than the property. This it has not done.
DOCTRINE
OF NOTICE AND THE ALLEGED DOUBLE SALE
[55]
The second basis for
contending that it is entitled to transfer of the property is
contained in the doctrine of notice summarised
by Brand JA in Bowring
NO v Vrededorp Properties CC
2007 (5) SA 391
(SCA) at para [11]:
"The
legal basis advanced by Vrededorp for its claim to the blue portion
is again derived from the doctrine of notice. This
time it relies on
the application of the doctrine in the sphere of successive sales.
The usual operation of the doctrine in this
instance, as explained in
our case law, is essentially as follows: if a seller, A, sells a
thing - be it movable or immovable -
to B and subsequently sells the
same thing to C, ownership is acquired, not by the earlier purchaser,
but by the purchaser who
first obtains transfer of the thing sold. If
the first purchaser, B, is also the first transferee, his or her
right is unassailable.
If the second purchaser, C, is the first
transferee, his or her right of ownership is equally unassailable if
he or she had purchased
without knowledge of the prior sale to B.
But, if C had purchased with such prior knowledge, B is entitled to
claim that the transfer
to C be set aside so that ownership of the
thing sold can be transferred to B. (See eg
Cohen
v Shires, McHattie and King
(1882) 1 SAR 41 at 46;
McGregor
v Jordaan and Another
1921
CPD 301
at 308;
Tiger-Eye
Investments (Pty) Ltd and Another v Riverview Diamond Fields (Pty)
Ltd
1971 (1) SA 351
(C) I at 358F - G;
Kazazis
v Georghiades en Andere
1979 (3) SA 886
(T) at 894B - D;
Cussons
en Andere v Kroon
2001 (4) SA 833
(SCA) ([2002]
1 All SA 361)
at 839C - E (SA);
Badenhorst,
Pienaar & Mostert
op cit 89; Gerhard Lubbe 'A doctrine in search of a theory:
reflections on the so-called doctrine of notice in South African Law'
1997
Acta
Juridica
246
et seq. Again it is unnecessary to enter into the
unresolved debate referred to earlier, ie whether knowledge acquired
by
between purchase and transfer would make any difference.)
[5]
"
[56]
Zelpy and Berkeley Developments are one and
the same entity.
[57]
At the time that Ms Silcock had deposed to
the founding affidavit in this application, the answering affidavit
in the eviction application
and the replying affidavit in the present
application, she had not realised that Zelpy and Berkeley were in
fact one and the same
entity.
[58]
Applicant argues that because both Berkeley
(Zelpy having changed its name), and Mr Feinstein were aware of
the first sale
agreement and because the first sale agreement had not
been cancelled, the Applicant is entitled to claim transfer of the
property
directly from Mr Feinstein (his estate as represented by the
First Respondent).
[59]
The applicant contends that if Mr Feinstein
had decided to have the property registered into his name, then he
acted contrary to
the first sale agreement concluded with Zelpy as
the seller, and in regard to the subsequent sale agreement concluded
by Mr Feinstein
with the same seller (the second sale agreement),
both the seller and Mr Feinstein were aware of the previous sale
agreement and
the rights of the Applicant pursuant thereto and they
acted intentionally and mala fide in concluding the second sale
agreement
and allowing the property to be registered in the name of
Mr Feinstein. It is not necessary to show mala fides. It is
sufficient
to show actual knowledge or dolus eventualis in respect of
the existence of a personal right. See
Meridian
Bay Restaurant
(supra) at para [18].
[60]
The issue which thus falls for
determination is whether there was a prior sale and whether Mr
Feinstein was aware of it at the time
of the conclusion of the second
sale agreement? This in turn gives rise to the question whether the
first sale agreement was enforcible
at the time of the conclusion of
the second sale agreement. For the first sale agreement to remain
enforceable at the instance
of the applicant, (or preclude either the
execution of the second agreement, or performance thereunder), it is
necessary for the
applicant to demonstrate (both allege and prove)
that the suspensive condition therein contained (at clause 15
thereof) was duly
fulfilled. See
Resisto
Dairy (Pty) Ltd v Auto Protection Insurance Co. Ltd
1963(1)
SA 632 (A.D) at 6446;
Rohroff v Nothling
1971(1) SA 14 (E) at 16 E-F;
Kate’s
Hope Game Farm v Terblanchehoek Game Farm
1998(1) SA 235 (SCA) at 241 C.
[61]
Clause 15.1 reads:
“
Building
contract
15.1
This offer to purchase is subject to the successful conclusion by the
purchaser of a building contract in respect of the property
and
attached hereto marked “Annexure D” within 2 (two) months
of the date of signature of this agreement by the purchaser
…”
[62]
There was some debate as to whether or not
clause 15.1 created a condition (if a condition, it was accepted that
it was a suspensive
condition) or a material term. Reliance was
placed on the decision of
Pangbourne
Properties Ltd v Gill and Ramsden (Pty) Ltd
,
1996 (1) SA 1182
at 1187 I to 1188E in respect of the proper
interpretation of the use of the words ‘
subject
to’
. In assessing the use of the
words ‘
subject to’
I have regard to the principles inunciated in
Pangbourne
(supra). I also have particular regard to the fact that Mr Feinstein,
according to Ms Silcock, intended to provide a home for her.
That
being so it would make little sense for him to purchase a piece of
land without a dwelling on it and without the prospect
of a house
being built within a reasonable time from conclusion of the
agreement, hence the cut-off period of 2 months for the
conclusion of
a building contract from date of signature of the first sale
agreement. I find that in this instance, the words ‘
subject
to
’ were used to create a
suspensive condition.
[63]
I now turn to consider whether the
suspensive condition had been fulfilled. No allegation that a
building contract as alleged or
otherwise had been concluded within
the required period, is made by the applicant in any of the papers
filed by it despite the
pertinent challenge by the first respondent.
There is also no allegation that a bankers guarantee had been
provided for the payment
of R100 000 within 45 days from the
acceptance of the first sale agreement.
[64]
The applicant’s reliance for the
relief predicated upon the alleged double sale, was advanced for the
first time in the security
for costs application. In para 24 of an
affidavit deposed to on 11 October 2012, Ms Silcock advises that
applicant’s founding
affidavit will be supplemented to place
reliance on the doctrine of notice. This did not occur.
[65]
The allegations advanced in the founding
affidavit to this application place no reliance upon such causa at
all.
[66]
First respondent argues that reliance upon
such a causa is wholly impermissible in that such cause of action is
a complete departure
from the case that the first respondent was
required to meet and that it constitutes new matter in every sense of
the word.
[67]
In
Director Of
Hospital Services v Mistry
,
1979 (1) SA
626
(A) at 635 H – 636:
"It
follows from this that a Judge cannot make good matters of fact if
they are not stated by the parties, unless they are
quite notorious
from the documents which have been put in by way of proof in
the proceeding. That is to prevent his appearing
by making good
doubtful matters of fact to fill the role not so much of Judge as of
advocate, and to defend as counsel rather than
to judge."
(Voet
5.1.49 Gane's trans vo1 2 at 60.)
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will
look to
determine what the complaint is. As was pointed out by KRAUSE J in
Pountas' Trustee v Lahanas
1924 WLD 67
at 68 and as has been said in many other cases:
"...
an applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible
to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts
stated therein, because
those are the facts which the respondent is called upon either to
affirm or deny".
See
too
Union Finance Holdings Ltd v IS Mirc Office Machines II (Pty)
Ltd
2001 (4) SA 842
(W) at 847D-H (and the cases there referred
to);
Body Corporate, Shaftsberry Sectional Title Scheme v
Rippert’s Estate
2003 (5) SA 1
(C)at 6D-F.
[68]
The Applicant did not dispute that the
cause of action sought to be relied upon constituted new matter. It
contended that extraordinary
circumstances existed in that new facts
came to light after the filing of the initial founding affidavit. I
find that this occurrence
does indeed constitute extraordinary
circumstances. However, a threat to supplement the founding papers
was made in October of
2012. By March 2014 this had not happened. The
applicant had ample opportunity to apply to supplement its cause of
action and to
thereby afford the first respondent a proper
opportunity to deal with all the features thereof.
[69]
I accordingly find that the Applicant is
precluded from relying on this cause of action.
[70]
If I am wrong in this finding I would
nonetheless find that the Applicant has failed to show that the first
sale agreement was in
existence alternatively enforcible, at the time
of the conclusion of the second sale agreement two years later, for
the reasons
set out hereinbefore.
CONCLUSION
[71]
I accordingly find that:
71.1.
the applicant is not entitled to the relief
sought by it in the Notice of Motion to the declarator application;
and
71.2.
in consequence thereof that the application
stands to be dismissed with costs.
[72]
As a further consequence, and resultant
from the agreement concluded between the parties, an order in terms
of prayers 1 to 4 of
the eviction application ought to issue.
ORDER
[73]
I accordingly make the following order:
1.
The application is dismissed with costs.
2.
Helen Gillian Silcock (‘Ms Silcock’)
is ordered to vacate the property situate at 23 V[…], 13 E[…]
Street,
C[…], S[…] and known as Erf […] W[…]
Extension 124 Township, Registration Division OQ, Province of Gaureng
(‘the property’) by 31 October 2014.
3.
If Ms Silcock has not vacated the property
by 31 October 2014, the Sheriff is authorised and required to carry
out the eviction
order by removing from the property Ms Silcock and
all persons who occupy the property by, through or under her.
4.
Ms Silcock is ordered to pay the costs of
the eviction application.
I
Opperman
Acting
Judge of the High Court
Heard:
5 March 2014
Judgment
delivered: 18 August 2014
Appearances:
For
Plaintiff: Adv L Hollander
Attorneys:
Gjersoe Inc - Ref: Mr Gjersöe
For
Respondent: Adv A Sawma SC
Attorneys:
Wertheim Becker Inc - Ref Mr S Gordon
[1]
See
section 16 of the Deeds Registry Act, Act 47 of 1937 which provides
as follows: “
Save
as otherwise provided in this Act or in any other law the ownership
of land must be conveyed from one person to another only
by means of
a deed of transfer executed or attested by the registrar …”
See
also The Law of South Africa, Vol 27, First Re-Issue Volume;
Things, para 362(g); The Law of South Africa, Vol
14(1),
Second Edition Volume; Land, para 22
[2]
The
Law of South Africa, Vol 27, First Re-Issue Volume; Things,
para 362(g); Knysna Hotel CC v Coetzee NO
[1997] ZASCA 114
;
1998 (2) SA 743
(SCA) at 751D-F as read with 754C-D
[3]
See
section 20 of the Deeds Registry Act
[4]
C
W H Smit and H Rademeyer, Law of Evidence, Butterworths Loose Leaf
Edition, para 3111, Issue 1, page 3-3; MacLeod v Rens
1997 (3) SA
1039
(E) at 1049A-C
[5]
See
too Meridian Bay Restaurant (Pty) Ltd and Others v Mitchell NO
2011
(4) SA 1
(SCA)