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[2018] ZAGPJHC 464
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R v R and Others (37430/2017) [2018] ZAGPJHC 464 (5 July 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
Number
:
37430/2017
In
the matter between:
R
S
Applicant
(Identity
No. …)
And
R
L
First
Respondent
(Identity
No. …)
ARIE
HENDRIK
KUHN
Second
Respondent
DAYJUR
TRADING AND INVESTMENT
CC
Third
Respondent
Registration
Number: 1998/04827/23
COMPANY
AND INTELLECTUAL PROPERTY COMMISSION
Fourth
Respondent
BRENDA
LYN
ANDERSON
Fifth
Respondent
JUDGMENT
[1]
This
is an application for declaratory relief. The applicant, Mr R seeks
that he be declared to be a 5 transferred to him by the
first
respondent, Mrs R, and that he be given copies of financial records
of the close corporation.
[2]
Mr
and Mrs R were formerly married to one another out of community of
property with the inclusion of the accrual system.
[3]
During
their marriage and on 27 October 1998 they acquired the third
respondent which was then a shelf corporation and were each
registered as holding 50% of the members interest in the close
corporation. The purpose of the close corporation was to purchase
and
own immovable property.
[4]
The
parties were divorced on 13 November 2009. The divorce proceeded on
an unopposed basis however the proprietal aspects had not
been
settled. The order of divorce was to the effect only that the
marriage was dissolved and provision made for the parental
responsibilities and rights of the children of the parties who were
then minors.
[5]
The
unfortunate result was that the proprietal consequences of the
marriage were not dealt with at all and remained opposed.
[6]
On 13
January 2013 and pursuant to the applicants having applied to this
court for an order relating to the division of the parties
respective
estates in accordance with the accrual system the fifth respondent,
Ms Anderson, a forensic auditor was appointed to
determine the value
of the accrual.
[7]
As
part of the task which fell to Ms Anderson she was required to
determine the value of the members interest in the close corporation
as this stood at the date of divorce. During her investigations she
discovered that during June 2012 there had been a purported
transfer
of Mr R’s 50% members interest in the close corporation to Ms
R.
[8]
It
emerged further that the transfer of the members interest took place
on the basis of a power of attorney which was delivered
to Easytax a
company which performed,
inter
alia,
services
such as the registration of changes to records at CIPC.
[9]
It is
not in dispute that the power of attorney which purported to be
signed by both Mr and Ms R was delivered by Ms R. It is furthermore
not in dispute that the signature of Mr R on the power of attorney is
a forgery. Ms R does not deal with these aspects at
all.
Instead, she contents herself with relying on an alleged oral
agreement in terms of which she says that she purchased Mr R’s
in interest in the close corporation. She indicates that she also
paid an amount of R500, 000 to Mr R in consideration for this
purchase. This amount she alleges was part of an amount that she had
paid to Mr R at the time of their separation and that this
was
considered as being compensation for the members interest. The first
respondent alleges further that she paid an additional
amount of more
than R1 500 000.00 to the applicant as further compensation for
his shares.
[10]
Ms
Mbali , an employee of Easytax who dealt with the registration,
states that the members interest was changed on the instruction
of
Mrs R. She states that the power of attorney in issue was provided to
her pursuant to a request that it be furnished in order
to allow her
to register the change of details.
[11]
There
is no dispute that the power of attorney was not signed by Mr R. Mrs
R studiously avoids dealing with the document and the
forgery of Mr
R’s signature thereon.
[12]
It is
clear in the circumstances that the transfer was effected without a
valid power of attorney and it is thus void.
[13]
The
relief sought by Mr R is far-reaching. It seeks that ownership of the
members interest be declared and that there be a formal
retransfer,
furthermore certain documents are requested. I do not believe that
the case made out allows for quite such extensive
relief. The
applicant has however made out a case to the effect that the
purported transfer of the members interest effected by
means of the
fraudulent special power of attorney should be declared null and
void.
[14]
As to
costs, it appears clear that the void transfer took place on the
instruction given by Mrs R and that she was involved in the
forgery
of the document used to effect such transfer. It appears that she has
had ample opportunity to consent to the relief which
is claimed, at
least in relation to the declaration sought as to the applicant’s
members interests. In light of all the circumstances,
her opposition
is vexatious. I take into account in this regard that she represented
herself in these proceedings. She did so confidently
and there was no
sense that she was not able to appreciate the nature of the issues.
[15]
I
thus make the following order:
1.
the
change in members interest in the third respondent affected 13 June
2012 is declared null and void.
2.
the
first respondent is to pay the costs of the applicant on the scale as
between attorney and client.
________________________________________
FISHER
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBUR
Date
of Hearing: 4 June 2018
Judgment
Delivered: 5 July 2018
APPEARANCES:
For
the Applicant:
Adv W Davel.
Instructed
by:
C/O Swanepoel
Attorneys.
For
the First Respondent:
The
First Respondent appeared in person.