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[2016] ZAGPJHC 152
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Ablesun Investments (Pty) Ltd v Armadillo Developments 202 (Pty) Ltd and Others (9124/2015) [2016] ZAGPJHC 152 (10 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO. 9124/2015
DATE:
10 JUNE 2016
In
the matter between:
ABLESUN
INVESTMENTS (PTY)
LTD
...............................................................................
Applicant
And
ARMADILLO
DEVELOPMENTS 202 (PTY)
LTD
.................................................
First
Respondent
SYDNEY
REAN
BOOYSEN
...................................................................................
Second
Respondent
THE
REGISTRAR OF DEEDS
JOHANNESBURG
..............................................
Third
Respondent
JUDGMENT
NOCHUMSOHN
(AJ)
1.
This is an application for an order:
1.1.
Interdicting and restraining the Second
Respondent from representing to anybody in any way whatsoever, either
directly or indirectly
that he represents the Applicant and/or that
he is entitled to act on behalf of the Applicant and/or sign
documents on behalf of
the Applicant in any capacity and for any
purpose whatsoever;
1.2.
Setting aside and declaring null and void
ab initio
a purported Agreement of Sale concluded between the Applicant and the
Second Respondent dated 19 June 2012;
1.3.
Setting aside the transfer of the
properties from the Applicant to the Second Respondent and registered
by the Third Respondent
on 23 October 2014 under Deed of
Transfer T4…….;
1.4.
Directing the Third Respondent to rectify
its Deeds Register to reflect that the abovementioned transfers have
been set aside and
that the Applicant is the owner of the properties
reflected therein, within fourteen days of service of a Court Order
on the Third
Respondent.
2.
From the annexures to the Founding
Affidavit it is apparent that on 29 September 1992, Certificate
of Township Title No. T…….
was issued at the Pretoria
Deeds Office under the provisions of
Section 46(4)
of the
Deeds
Registries Act No. 47 of 1937
, reflecting that:
2.1.
the Applicant was the registered owner of:
Remaining
Extent of Portion of 3… of the Farm
V……
2……..,
Registration
Division I.Q., Transvaal
Measuring
61, 1621 Hectares
2.2.
the Applicant had laid out a township
called Meadowlands Extension 12 upon a portion of the aforementioned
land;
2.3.
in pursuance of the provisions of the said
Act, the Applicant, its successors-in-title or assigns by virtue of
such Certificate
of Township Title became the registered owner of:
Portion
3….. (a portion of Portion 3….) (now known as the
Township of M…. E….. 1…..) of the Farm
V….
2…..
Registration
Division I.Q., Transvaal
Measuring
21,3441 Hectares
As
more fully appears from Diagram SGA 9491/1991
3.
The aforesaid Certificate of Township Title
T8…… which was registered in the Pretoria Deeds Office,
bears an endorsement
in terms of
Section 46(3)
of the
Deeds
Registries Act 47 of 1937
reflecting that the land therein described
had been laid out into erven in accordance with General Plan SG No.
A9492/1991 approved
by the Surveyor-General on 9 March 1992 and
booked in a separate register, under the name of Meadowlands
Extension 12.
Such endorsement was effected by the Third
Respondent in the Johannesburg Deeds Office under Registration Number
T…….,
the effect of which was that the township,
Meadowlands Extension 12, now fell under the Johannesburg Deeds
Registry and was held
by the Applicant under the aforesaid number.
4.
The said Certificate of Township Title No.
T8……… had been lost or destroyed and was
replaced by way of an Application
for a Certified Copy of such deed
in terms of
Regulation 68(1)
of the
Deeds Registries Act 47 of 1937
under document number VA 5169/2012, which copy was applied for by
Dorothy Murphy in her capacity as the representative of the Applicant
on 08 August 2012.
5.
Under Deed of Transfer No. T4…..
(which I shall refer to in the remainder of this judgment as “the
Offending Deed”)
registered by the Third Respondent on 23
October 2014, some twenty-nine separate erven, all situate in
Meadowlands Extension 12
Township, and all formerly held by the
Applicant under Deed of Transfer No. T4….. and all of which
appear upon General Plan
No. SG No. A9492/1991, were all transferred
from the Applicant to the First Respondent. The said twenty-nine
properties described
therein constitute a portion of the
aforementioned property described in the parent deed, being the
Certificate of Township Title
No. T8…… as read with the
Section 46(3)
endorsement thereon in the Johannesburg Deeds Registry
under Registration Number T4……
6.
The deponent to the Applicant's Founding
Affidavit is Daniel Nicholas Hermanus Mostert. Mostert is an attorney
and conveyancer of
this court, as well as a director of the
Applicant.
7.
In the Applicant's Founding Affidavit,
Mostert sets out that:
7.1.
Murray & Roberts Limited held all of
the shares in the Applicant;
7.2.
the Applicant had been dormant for a number
of years, when Murray & Roberts Limited resolved in 2011 that the
Applicant should
recommence business;
7.3.
the Applicant applied to the North Gauteng
High Court to reinstate the Applicant on the Register of the
Registrar of Companies,
which order was granted in 2012 and the
Applicant's status was restored as
ꞌin
Businessꞌ
on CIPC;
7.4.
on 11 June 2014, Murray & Roberts
Limited sold its shares in the Applicant to a close corporation known
as Mejy, of which Mostert
is the sole member;
7.5.
pursuant to that transaction, the erstwhile
directors of the Applicant, Dorothy Faure (formerly Murphy) and
Cheryl Anne van Bosch
resigned as directors and Mostert was appointed
as the sole director of the Applicant on 12 June 2014, with the
change of directorship
having been registered at CIPC on 23 January
2015.
7.6.
the offending deed was registered without
the Applicant’s knowledge or authority, and perhaps
fraudulently;
as
a result of which the Applicant seeks in its relief that I order the
cancellation of the Offending Deed.
8.
Whilst the Second Respondent hotly contests
having acted fraudulently, it would appear to be common cause, on the
papers before
me, that all of the steps taken in order to bring about
the registration of the offending deed were so taken by the Second
Respondent,
acting on behalf of both the Applicant as well as the
First Respondent, without the knowledge of Mostert or his
predecessors, Dorothy
Faure (formerly Murphy) and Cheryl Anne van
Bosch.
9.
The Founding Affidavit sets out further
that:
9.1.
upon learning of the offending deed,
Mostert ascertained that the Second Respondent was a director of the
First, and addressed a
letter to the First Respondent dated 30
January 2015, placing his grave concerns on record and demanding that
he be provided with
a copy of the Sale Agreement embodying the sale
of the various properties transferred and indicating the authority of
the person
who signed all documents on behalf of the Applicant.
The letter also calls for details of the conveyancing attorneys
who
attended to registration of transfer as well as for proof of payment
of the purchase price being R150 000.00, which price appears
ex
facia
the Offending Deed.
9.2.
the First Respondent responded by way of
letter on 2 February 2015 stating that during 1989, Murray &
Roberts and Rabie Property
Developers acquired the land in question
from Rand Mine Properties and that the Applicant was part of a joint
venture vehicle created
for development. In such letter, the
Second Respondent advised that he was the managing director for
Rabie, responsible for
the project and the township known as
Meadowlands Extension 11 and 12 as well as Mnesi Park.
Such letter went on to
provide that in 1992, Rabie withdrew from the
Transvaal and that he, the Second Respondent, acquired Rabie's
assets. The
Second Respondent says that the last remaining
stands in Meadowlands and Mnesi Park as well as certain stands which
he refers to
as the frozen stands were purchased by him from the
Ablesun Joint Venture for an amount of R150 000.00. In
such letter,
it was recorded that it was anticipated that the frozen
stands would only be developed in ten to fifteen years’ time
when
Dobsonville Road was re-aligned and the stands unfrozen,
whatever that may mean. The letter stated further that the
Johannesburg
City Council decided approximately five years ago not to
proceed with the re-alignment of the road and ever since, the Second
Respondent
had been trying to obtain transfer and clearances.
The letter stated further that Mostert ought to have the Agreement of
Sale in his file and should also have confirmation of payment of the
purchase price of R150 000.00, allegedly made in 1992.
10.
The First and Second Respondent cling to
this version throughout their opposing papers. Moreover, nowhere in
the papers is there
any evidence of proof of payment of the
consideration of R150 000.00, and neither is a copy of the 1992
Agreement produced. Rather
a version is put forward that the 1992
Agreement was lost and was substituted by an Agreement of Sale dated
19 June 2012,
constituting the agreement which the Applicant
seeks to have set aside and declared null and void. . For the
sake of convenience,
I will refer to this agreement in the remainder
of this judgement, as “the Offending Agreement”.
11.
The Offending Agreement bears no reference
to the 1992 Agreement and does not purport to substitute same.
Most strangely,
the Offending Agreement, dated 19 June 2012, records
that the purchase consideration is payable within 30 days.
12.
Mostert ascertained that conveyancers,
Olivier & O'Connor, had attended to the registration of the
offending deed, from whom
he obtained their entire conveyancing file.
13.
The
causa
set out in the second page of the Offending Deed is one of Agreement
of Sale, in terms of which the Applicant purportedly truly
and
legally sold on 19 June 2012 to the First Respondent, the properties
described therein, for the consideration of R150 000.00.
The agreement of sale referred to in the Offending Deed is the
Offending Agreement.
14.
On the Second Respondent’s version,
more fully set out in the Answering Affidavit, the Second Respondent
concluded the lost
1992 agreement, in which he had purchased the
erven for a purchase consideration of R150 000.00, which was
duly paid.
He set out that he did not do anything in respect of
transfer until approximately three years ago, when he set the process
in motion
to protect his investment and instructed Olivier &
O'Connor to obtain the required clearance certificate for the
transfer of
the land and to have same transferred into the name of
his nominee, being the First Respondent.
15.
The Second Respondent says further in the
answering affidavit that Olivier & O'Connor thereafter prepared
the Offending Agreement
which he terms:
“
a
substitute agreement of sale, as I could not lay hands on the lost
agreement, which agreement I signed on behalf of the seller
and
Vincent Schormann signed on behalf of the Purchaser.”
16.
The Second Respondent adds at paragraph 42
of the Answering Affidavit:
“
as
regards the purchase price of R150 000.00 in the agreement,
‘DM13’ to the Founding Affidavit, on account of
a bona
fide error in recording thereof, erroneously stipulated in clause 1
that the purchase price was payable in cash within 30
days from date
of signature of the agreement.”
17.
The Second Respondent adds further at
paragraph 42.2 of the Answering Affidavit:
“
Neither
I nor Schormann picked this up when signing the agreement and I have
established from the conveyancers that this was brought
about by the
use of a standard form agreement, which is used by Olivier &
O'Connor and simply tailored to meet the requirements
of varying
transactions“
18.
I find these explanations at paragraph 42
of the Answering Affidavit to be palpably implausible and improbable,
particularly coming
from a man who was the managing director of the
Rabie Joint Venture. One would have expected a far greater standard
of care from
someone in such a senior position, as one would have
expected from his professional advisors, Olivier & O’Connor.
Moreover, there was a higher degree of caution required of the Second
Respondent, in circumstances where he was acting on behalf
of the
Applicant, in signing away its properties to a company owned and
controlled by him.
19.
On the First and Second Respondents’
own version, as set out above, the offending agreement is completely
fictitious inasmuch
as there was no true sale on 19 June 2012, of the
29 erven transferred. Neither was there a consideration of
R150 000.00,
which would be due for payment within 30 days, as
provided for in the Offending Agreement.
20.
The 29 erven are then transferred in the
Offending Deed, pursuant to the Offending Agreement.
21.
As the Offending Agreement is completely
fictitious, and does not speak to the true version of the First and
Second Respondents,
to the effect that the 29 erven transferred were
bought and sold for R150 000.00 in 1992, and paid for then, it
stands to
reason that the Offending Agreement cannot pass muster and
falls to be set aside, as prayed for by the Applicant. On that
basis, if the offending agreement falls to be set aside, it stands to
reason that the Offending Deed which was registered pursuant
to the
Offending Agreement, must also be set aside.
22.
A fictitious agreement which does not
remotely speak to the true transaction can never give rise to a valid
contract in law, and
in turn can never give rise to a valid deed of
transfer.
23.
Senior Counsel for the First and Second
Respondents, Mr de Koning, argued that we follow the abstract theory
of transfer in terms
of
Legator
McKenna Inc Shea
2010 (1) SA
35
SCA
and therefore ownership
arises from title deeds irrespective as to irregularities in the
underlying agreements of sale.
24.
What distinguishes this case from
Legator
McKenna
is that here, on the
First and Second Respondents own version, the agreement of sale is
entirely fictitious, whereas in
Legator
McKenna
, the underlying
agreement was impaired by a technicality for want of the Master of
the High Court having confirmed the appointment
of a curator in terms
of
Section 72
(1) d of the Administration of Estates Act, at the time
of its signature.
25.
The stamp of approval given by the Supreme
Court of appeal to the abstract theory of transfer in relation to
immovable property,
in the
Legator
McKenna
Judgement, could never
extend to validating a title deed originating from a fictitious
agreement that is vastly at odds with the
original and true agreement
between the parties. To allow that would pave the way to
legitimising title deeds that in every
respect are completely
tainted.
26.
The Offending Deed bears a Preparation
Certificate signed by conveyancer, L Slabbert, effected in terms of
Section 15 of the Deed
Registries Act, she being a conveyancer in the
employ of Olivier & O'Connor.
27.
Mostert stated in the Founding Affidavit
that the contents of the conveyancing file revealed that there was no
FICA documentation
obtained in respect of the Applicant. There
was no resolution signed by the directors of the Applicant.
There
was no proof of residence and identity documentation of the
Applicant's directors at the time. The documentation reflected
the municipal value of the properties at R1 400 000.00, but the value
reflected on the Transfer Duty declaration was zero.
28.
At time of signature of the offending deed,
Dorothy Faure as well as Cheryl Anne van Bosch were the directors of
the Applicant and
were employed by Murray & Roberts Limited, the
Applicant's sole shareholder at the time, neither of whom were
approached by
Olivier & O'Connor or the Second Respondent to sign
any documentation, be it the Offending Agreement nor any transfer
documentation
in respect of the transaction.
29.
It is bizarre for the Second Respondent to
have relied upon a resolution signed by the board of directors of the
Applicant as constituted
in 1990, comprising TB Currin, MW McCulloch
and SW Shiller, (none of whom were directors in 2014) to have
conveyed authority to
him to sign the offending agreement and power
of attorney to transfer, 24 years later, without the conveyancers
having had such
resolution on file and without the Second Respondent
or the conveyancers having checked with the current board of
directors that
such resolution was still effective. Such
resolution was annexed to the replying affidavit as “
RA5
”
and was revoked by resolution on 24 August 1994, annexed as “
RA17
”.
30.
Furthermore, and whilst neither Mr
Pretorius nor Mr de Koning raised this issue with me, what sprang to
mind after the argument
is that:
30.1.
in accordance with the affidavit filed by
one Langham, for the deregistration of the Applicant, such
deregistration was based upon
it being divested of all assets and
liabilities;
30.2.
the application was subsequently brought
for the re-registration, based upon the discovery of the properties
registered in the name
of the Applicant.
31.
The effect of this is that the properties
transferred may well have represented the greater part of the
undertaking of the Applicant,
which would have necessitated the
passing of special resolutions by the Applicant in terms of
Sections
112
and
115
of the
Companies Act 71 of 2008
, for the registration of
transfer of the properties, in accordance with the offending deed.
32.
Thus, absent such resolutions in accordance
with
Sections 112
and
115
of the
Companies Act 71 of 2008
, any
transfer in respect of the greater part of the undertaking of the
Applicant would be invalid and would fall to be set aside.
33.
The conveyancers, Olivier & O'Connor
had failed to obtain an auditor's certificate in respect of the
transaction from Deloitte's,
who were the Applicant's auditor at the
time, and no contact was made by them with van Bosch or Faure to
obtain copies of identity
documents, proof of residence or other
Financial Intelligence Centre Act 38 of 2001 (FICA documentation).
Finally,
it was clear that the Second Respondent had signed the
offending agreement and all documents on behalf of the Applicant, in
order
to pass transfer of the properties under the offending deed.
34.
In order to pass transfer of any property,
one must of necessity lodge with the Registrar of Deeds as part of
the conveyancing pack,
the existing Title Deed under which the
property sought to be transferred is currently held. If the
original of such existing
title deed has been misplaced, one would
obtain a certified copy of such title deed in accordance with
Regulation 68(1)
of the
Deeds Registries Act, and
such certified copy
would then be lodged in the pack together with the remaining
documents for the on-transfer of the property
into the name of the
prospective purchaser. The Applicant states in the Founding
papers that the Second Respondent signed
such an affidavit for the
issue a certified copy of the Applicant's original title deed.
In such affidavit, the Applicant
says that the Second Respondent
falsely stated that he was duly authorised by a resolution of the
directors of the Applicant to
depose to the Affidavit.
Furthermore, the Second Respondent stated in such affidavit that a
certified copy of the Deed of
Transfer, namely VA….. which had
been applied for by the Applicant and was still in its possession,
had been lost and could
not be found after diligent search. There was
no search at all, as such certified copy was held by the Applicant
who had not been
approached for its release.
35.
The offending agreement also makes mention
of the properties to be transferred in Mnesi Park, leading the
Applicant to conclude,
as it did, that the First and Second
Respondents also intend to obtain transfer of those properties by
unauthorised means, necessitating
the launching of this application.
36.
Notwithstanding the Applicant having
demanded of the Second Respondent that he confirms that he will
refrain from acting on behalf
of the Applicant, the Second Respondent
refused to provide such unqualified confirmation.
37.
On the First and Second Respondents' own
version, the
Second
Respondent acquired the properties, yet transfer was passed by way of
the offending deed into the name of the
First
Respondent. If the Second Respondent did acquire a right to
transfer of the properties under an Agreement of Sale, which
he
alleges to have lost, then and in that event, the offending agreement
would surely have described the purchaser as the Second
Respondent
and not the First. In the same vein the transferee in the
offending deed would have been described as the Second
Respondent and
not the First. The transfer to the First Respondent under the
offending deed, on the version of both First
and Second Respondents,
represents a violation of
Section 14
of the Deeds Registries 47 of
1947, which provides that transfers of land shall follow the sequence
of successive transactions
in pursuance of which they are made, and
in terms of
Section 14(1)(b)
, it shall not be lawful to depart from
any such sequence. The failure to have given effect to
Section
14
, as aforesaid, on the First and Second Respondents' own version,
serves to evade the imposition upon the Second Respondent of transfer
duty and transfer duty penalties for some twenty two years in
accordance with the Transfer Duty Act (if such duty was in all other
respects payable). In terms of the Transfer Duty Act, in the
normal course of events, transfer duty would have been payable
upon
each right to acquire transfer, within six months from date of the
sale, failing which such duty should attract penalties.
It is
thus disturbing that the Offending Agreement bore no reference to the
1992 agreement which the First and Second Respondents
allege to have
lost, as the effect of the Offending Agreement is such that it
disguised the true date of the sale which would have
avoided the
imposition of statutory transfer duty penalties for some twenty two
years, if duty was in all other respects payable.
38.
One is then faced with the clear
non-compliance with Section 15A(1) of the Deeds Registries Act No. 47
of 1947, as read with Regulation
44A promulgated thereunder. In
terms of Section 15A(1), a conveyancer who prepares a deed for
purposes of registration in
the Deeds Registry, and who signs a
prescribed certificate on such deed, accepts by virtue of such
signing, the responsibility,
to the extent prescribed by regulation,
for the accuracy of those facts mentioned in such deed.
39.
In terms of Regulation 44A, the person who
signs the Preparation Certificate under Section 15A(1) bears
responsibility for:
39.1.
the correctness of all facts stated in the
deeds so prepared;
39.2.
ensuring that one who signs in a
representative capacity on behalf of a company, has the necessary
authority for the signing of
such document.
40.
In the nature of things, such authority is
adduced by way of resolution of the board of directors of a company,
which conveyancers
are duty-bound to hold on file, together with all
requisite file documentation, so as to enable the preparation of
deeds.
41.
In every pack of transfer documents lodged
for registration in the Deeds Office, there must always be a signed
Power of Attorney
to Transfer, which conveys the authority of the
transferor in favour of the conveyancer to appear before the
Registrar of Deeds
and to sign a fresh title deed giving transfer and
title of the land to the transferee. Such Power of
Attorney to Transfer
must of necessity bear a Preparation Certificate
under Section 15A(1) of the Act, as must the title deed.
42.
Ex facie
the
Power of Attorney to Transfer to be found at paginated page 79 of the
papers, prepared by conveyancer Slabbert in accordance
with Section
15, as read with Section 15A(1) and Regulation 44A of the Deeds
Registries Act 47 of 1947, the Second Respondent was
purportedly duly
authorised by resolution of the directors of the Applicant to sign
such Power of Attorney to pass Transfer on
behalf of the Applicant.
Absent a resolution on file by the directors of the Applicant, I find
that there was non-compliance
with Section 15A(1) as read with
regulation 44A.
43.
On the evidence presented, there was no
resolution of the board of directors of the Applicant, appointing the
Second Respondent
to so act. Absent such resolution both the
Power of Attorney to Transfer as well as the Offending Deed are
fatally tainted,
which in itself gives merit to the relief sought by
the Applicant.
44.
There is not much room for a finding on the
Second Respondent's version to the effect that he was authorised by
the Applicant in
the early nineties to deal with its properties, and
to the extent that he was so authorised, it is clear from the
Replying Affidavit
that such authority was terminated by way of the
resolution comprising annexure
"RA17"
to the Replying Affidavit, on 24 August 1994 where it was resolved
that:
"The
resolution of the directors adopted on Friday 6 December 1991
authorising Sydney Rean Booysen and Peter Nicholas Steyn
to sign on
behalf of the company all transfer documentation, including annexure
"C" / Certificates of Provisional Grant
of Leasehold,
necessary for the registration of the transfer of erven situated in
the townships of Mnesi Park, Meadowlands Extension
11 and Meadowlands
Extension 12 into the names of the various purchasers, be and it is
hereby revoked and cancelled."
Such
resolution is signed by the directors at the time, J A Flint and C A
van Bosch.
45.
Much issue is made by the First and Second
Respondents that the same van Bosch who signed a Confirmatory
Affidavit to the Founding
papers, confirmed that the Second
Respondent was at no time authorised to deal with the properties, and
by so doing, she had committed
perjury. The Applicant adequately
explains in the Replying Affidavit that it was only after the
Founding Papers were deposed to
that it ascertained that the Second
Respondent had been authorised to deal with the Applicant's
properties in 1991, but at the
same time ascertained that such
authority was terminated by way of the aforesaid resolution. I
therefore do not think that
anything turns on van Bosch having
confirmed the version that she did in the Founding Papers, as she had
clearly acted in error
but it is not necessary for me to make any
further findings in this regard. At best for the Second
Respondent, the discovery
of his prior authority and the revocation
thereof in 1994, may have left him under the impression that he was
authorised, if he
was without knowledge of such revocation. In
the same vein, Slabbert in the execution of her conveyancing mandate,
may have
naively operated under the erroneous impression that the
Second Respondent was so authorised, but such impression would in no
way
serve to exonerate the conveyancer from the duties imposed upon
her under Section 15A(1) as read with Regulation 44A of the Deeds
Registries Act, which she clearly fell foul of. In addition,
such naiveté would in no way exonerate the conveyancer
from
the duty to ensure that where the Applicant was alienating the
greater part of its undertaking, that special resolutions had
been
passed and registered with CIPC in accordance with
Sections 112
and
115
of the
Companies Act 71 of 2008
.
46.
It can only be that
de
facto
, the Second Respondent was not
authorised at the time of signing of the Power of Attorney to
Transfer on behalf of the Applicant
or at the time of registration of
the Offending Deed, or at the time of execution of the underlying
Offending Agreement, to represent
and bind the Applicant in the
transfer by it of the properties to the First Respondent.
By the same line of reason,
it can only be that the conveyancers,
Olivier & Connor, were not authorised by the Applicant to effect
registration of such
transfer.
47.
The First and Second Respondents
raised in heads of argument that the Applicant itself had fallen into
de-registration and was only
revived by Order of Court some time in
2011, with the result that the properties had become
bona
vacantia
. The argument put
forward is that the granting of the relief would not be competent as
the properties vest in the State
by virtue of the Applicant's
erstwhile de-registration. I find this argument to be
illogical, as by the same line of reason,
the transfer of the
properties conveyed under the Offending Deed would also have been
invalid without steps having been taken for
the Applicant's title to
be reinstated by the State. In argument, Mr de Koning SC did
not pursue this argument and Mr Pretorius
SC for the Applicant,
pointed out that in terms of
Peninsula
Eye Clinic (Pty) Ltd vs Newlands Surgical Clinic and others (1) SA
381 (WCC)
, reinstatement under
Section 82(4)
of the
Companies Act 71 of 2008
, is retrospectively
re-established upon re-registration, but does not validate the acts
of the company during the period
of
deregistration.
48.
Mr de Koning
SC valiantly argued that I may not reject the version of the First
and Second Respondents, relying upon the principles
enshrined in:
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T)
;
Die
Dros
(
Pty
)
Ltd
&
another
v
Telefon Beverages CC & others
2003 (4) SA 207
(C)
;
and
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
Mr
de Koning SC argued that in line with these cases, if I am not
inclined to accept the First and Second Respondent’s version
and dismiss the application, I should then refer the matter to a
trial court.
49.
In considering this submission, I have
formed the view that no evidence adduced at any trial could ever
sanctify and correct the
tainted Offending Agreement, which on the
First and Second Respondent’s own version, is very far removed
from the real agreement
which the Second Respondent alleges to have
existed twenty years prior, as a result of which the Offending Deed
could never be
sanctified, as it is irretrievably tainted and doomed
to perpetual invalidity. There is therefore no purpose served
in referring
this matter to trial, as the applicant is entitled to
the relief that it seeks and has proved its entitlement thereto, on a
balance
of probabilities, upon the First and Second Respondent’s
own version.
50.
The only thing left for me to decide is
whether or not the relief, as against the Third Respondent is
competent, and if so, whether
or not to grant same in the form of the
main relief sought, alternatively in the form of the alternative
relief. I have already
set out above the form of the main
relief sought. In the alternative to the main relief, I am
asked to order that the First
Respondent transfers the properties
back to the Applicant.
51.
In terms of Section 6(1) of the Deeds
Registries Act, no registered Deed of Transfer shall be cancelled by
a Registrar, except upon
an Order of Court. In terms of Section
6(2) of the Act, upon the cancellation of any deed conferring or
conveying title to
land as provided for in sub-section 1, the deed
under which the land was held immediately prior to the registration
of the deed
which is cancelled, shall be revived to the extent of
such cancellation, and the Registrar shall cancel the relevant
endorsement
thereon evidencing the registration of the cancelled
deed.
52.
Accordingly, were I to grant the main
relief, the Offending Deed would be cancelled, resulting in the
revival of the prior deed
under which the Applicant was the
registered owner of the properties in question. In argument, Mr
Pretorius SC requested
that I grant the main relief, in lieu of the
alternative relief.
53.
In terms of
Pillay
v Krishna
1946 AD 946
at 955,
a
party alleging payment bears the onus of proving it. The First and
Second Respondents have not submitted any proof of payment
of the
consideration of R150 000.00.
54.
The First and Second Respondents' version
is palpably implausible, farfetched and clearly untenable in all
material respects, so
much so that the court is entitled to reject
such version, as it did in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
paragraph 26
.
55.
The First and Second Respondents should not
have resisted the application, should not have persistently clung to
the version that
they did, ought to have succumbed to the revocation
of its non-existent authority to bind the Applicant, ought to have
yielded
to the demands made in the initial correspondence, ought to
have transferred the properties back to the Applicant without putting
the Applicant through its paces in bringing this application to
court, with the result that there is merit in the Applicant's request
for the award of costs on the scale as between attorney and client,
including the costs of two counsel.
56.
Accordingly, I make the following Order:
56.1.
Interdicting and restraining the Second
Respondent from representing to anybody in any way whatsoever, either
directly or indirectly,
that he represents the Applicant, and/or that
he is entitled to act on behalf of the Applicant and/or sign
documents on behalf
of the Applicant in any capacity and for any
purpose whatsoever;
56.2.
Setting aside and declaring null and void
ab initio
the purported Agreement of Sale concluded between the Applicant and
the Second Respondent dated 19 June 2012 and enclosed to the
Applicant's Founding Affidavit as annexure
"DM13"
.
56.3.
Deed of Transfer No. T4……
registered by the Third Respondent in the Johannesburg Deeds Office
on 23 October 2014 is
invalid and the Third Respondent is hereby
ordered to effect cancellation thereof in terms of
Section 6(1)
of
the
Deeds Registries Act No. 47 of 1937
.
56.4.
In terms of Section 6(2) of the Act, the
Third Respondent is hereby ordered to effect cancellation of all
relevant endorsements
on all affected deeds evidencing the
registration of Deed of Transfer T4…….
56.5.
The First and Second Respondents are
ordered, jointly and severally, to bear to the costs of the Applicant
in relation to this application,
on the scale as between attorney and
client, including the costs of both senior and junior counsel.
NOCHUMSOHN,
G
ACTING
JUDGE OF THE HIGH COURT
On behalf of
Applicant: Mr G Pretorius SC
With him: Mr N
Lindeque
Instructed
by: Breytenbach Mostert Skosana Inc
On
behalf of First and Second Respondent: Mr LW de Koning SC
Instructed
by: Mills and Groenewald Attorneys
Date
of Hearing: 07 June 2016
Date
of Judgment: 10 June 2016