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[2022] ZAGPJHC 397
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Van der Zee v Jansen van Rensburg N.O. and Others (16828/2021) [2022] ZAGPJHC 397 (2 June 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 16828/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED
2
JUNE 2022
In
the matter between:
EGON
ARIAN VAN DER
ZEE

APPLICANT
and
RENIER
NICHOLAAS JANSEN VAN RENSBURG NO

FIRST RESPONDENT
SEAN
DAVID KIRKPATRICK

SECOND RESPONDENT
MASTER
OF THE HIGH COURT, JOHANNESBURG

THIRD RESPONDENT
REGISTRAR
OF DEEDS, JOHANNESBURG

FOURTH RESPONDENT
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
The genesis to this application is a written loan agreement, the
breach of which eventually resulted in a conundrum of events
and
litigation, which this court is now enjoined to untangle for the
purpose of finally adjudicating the matter.
Facts
[2]
The point of departure is the loan agreement. On 23 September 2016,
at Sandton, a written agreement, styled Loan Agreement,
was concluded
between the applicant, as creditor, and one John Stuart Squires
(Squires), as the debtor, in terms of which it was
recorded that
Squires acknowledged his indebtedness to the applicant in the sum
R450 000.00, being in respect of money lent and
advanced as agreed
(the loan agreement). The terms of the loan agreement that are
relevant for present purposes, are that Squires
was required to pay
the debt on or before 30 November 2016, failing which interest
compounded monthly in advance, would accrue
at the rate of 9% per
annum from 1 December 2016 (the debt), the applicant would be
entitled to exercise his rights, including
execution of the property,
in terms of a mortgage bond, which Squires agreed the applicant was
entitled to register as security
for payment of the debt, in the
applicant’s favour, over the property, described as Holding
[….] S [....] Agricultural
Holdings (the property), which was
registered in the name of Squires.
[3]
On 30 September 2016 a mortgage bond, as provided for in the loan
agreement, was registered.
[4]
Squires failed to pay the debt on or before 30 November 2016, or
thereafter. On 7 December 2016 the applicant and Squires purportedly

concluded an addendum to the loan agreement in terms of which Squires
granted the applicant the option, in the event of upon Squires’

breach of the loan agreement, to purchase the property in accordance
with the agreement of sale, which was attached thereto (the

addendum).
[5]
On 7 December 2016 the applicant exercised the option to purchase the
property (the deed of sale).
[6]
On 20 March 2017 Squires signed his last will and testament in terms
of which he inter alia bequeathed the property to the second

respondent.
[7]
On 29 June 2017 Squires purportedly signed a power of attorney in
order to procure transfer of the property into the name of
the
applicant (the power of attorney). On 26 September 2017 the property
was transferred into the applicant’s name and the
bond was
cancelled, in respect of which Deed of Transfer T [....], was issued
by the Registrar of Deeds, Pretoria.
[8]
The second respondent, unbeknown to the applicant, took occupation of
the property in February 2107, in terms of a lease agreement

concluded with Squires on 1 February 2017, providing for a lease
period of 10 years, on notoriously favourable terms.
En passant
,
an interesting discovery, which contributes to the mystery of forged
signatures appearing on two documents featuring in this matter,
to
which I shall revert, was brought to the fore in the second
respondents answering affidavit: there he states that in November

2017, he fortuitously ‘found’ a second lease agreement,
dated 25 October 2016, containing almost identical terms as
the 1
February lease agreement, amongst the documents of the deceased. He
then explains that he did not sign the agreement and
that the
signature of the lessee appearing on the document, was not appended
by him, but appears to be a photocopy of the signatures
on the 1
February 2017 lease agreement. It does not require a handwriting
expert to immediately recognise, on a cursory comparison
of the
signature pages of both documents, that the explanation of the second
respondent is unassailable. Fortunately, this court
is not required
to delve into the myriad of inferences that spring to mind.
[9]
On 27 July 2017 Squires passed away and the first respondent was
appointed the executor in the deceased estate on 4 April 2018.
[10]
On 21 February 2019 the applicant, having become aware of the second
respondent’s occupation of the property and the
existence of
the lease agreement, brought an application for eviction in this
court, against the second respondent. The second
respondent opposed
the application and instituted a counter-application for the stay of
the eviction proceedings, pending an action
to be instituted by the
first respondent for the setting aside of the sale agreement and
cancellation of the title deed to the
property. The application came
up for hearing before Van der Walt AJ. The learned judge held that
the power of attorney had lapsed
on Squires’ death and despite
registration of the property into the name of the applicant
thereafter, ownership, for purposes
of eviction, had not been proved.
Both the application and the counter-application were dismissed on 15
January 2020. The correctness
of the judgment was challenged in the
applicant’s heads of argument, but in view of the relief to
which the applicant has
confined himself to, the eviction application
no longer has any relevance.
[11]
On 29 May 2019 the first respondent instituted an action against the
applicant, in this court, in which he sought the setting
aside of the
deed of sale and the title deed in the name of the applicant and that
the property be transferred into the name of
the deceased estate. The
applicant noted an exception to the particulars of claim on the
ground of not disclosing a cause of action,
which the first
respondent left in abeyance. On 16 February 2001, the first
respondent withdrew the action.
[12]
The present proceedings were launched on 6 April 2021. Both the first
and second respondents oppose the application and the
first
respondent instituted a counter-application.
[13]
Against this background, I turn now to the relief sought in the
application and the counter application.
The
relief sought in the application and the counter-application
[14]
In the amended notice of motion relief is sought in Part A and Part
B. In sum, the relief sought in Part A is for a declarator
that the
applicant is the sole and exclusive owner and title holder of the
property. In the first alternative thereto, the applicant
seeks
ratification and confirmation of the registration of the property in
his name as reflected in the title deed. In the second
alternative,
the applicant seeks a transfer of the property into the name of the
deceased estate and an immediate transfer thereafter
of the property
into his name. In the third alternative the applicant seeks an order
cancelling the existing title deed to the
property, that the original
mortgage bond be re-registered over the property, that a money
judgment be granted against the first
respondent for payment of the
debt and that the property be declared specially executable (the
third alternative relief). In Part
B of the notice of motion the
applicant seeks relief aimed at procuring an order for eviction from
the property against the second
respondent.
[15]
In the counter-application the first respondent seeks an interdict,
restraining the applicant from alienating or otherwise
dealing with
the property, pending the finalisation of an action to be instituted
by the first respondent for setting aside of
the deed of sale and
re-registration of the property into the name of the deceased estate.
Disputes
of fact
[16]
The disputes of fact, it is common cause between the parties,
concern  first, the conclusion of deed of sale and second,
the
power of attorney having been signed by Squires. The second
respondent challenged the signature of Squires on both these
documents
and obtained the opinion of a handwriting expert, who
conducted a forensic examination and comparison between and
assessment of
Squires’ signature on the disputed documents (the
addendum to the loan agreement, the annexure thereto and the power of
attorney)
and his signature on other documents, including the loan
agreement and his last will and testament (in respect of which the
authenticity
of Squires’ signature was accepted). The expert
concluded that the disputed signatures are unlikely to have been
produced
by him.
[17]
The applicant, for purposes of the present application, does not
challenge the findings of the handwriting expert.
[18]
In argument before me, Mr
van Tonder
, who appeared on behalf
of the applicant, submitted that the applicant now confines the
relief sought to the third alternative,
based on the facts that are
undisputed in accordance with the
Placon-Evans
rule and the
first respondent in the counter-application, likewise seeking an
order for cancellation of the applicant’s title
deed and
re-registration of the property into the name of the deceased estate.
[19]
Counsel for the first and second respondents in response, requested
confirmation by the applicant that the relief sought in
prayers 2.1,
2.2, 2.3, 2.4 and 2.5 of the first respondent’s
counter-application will be sought by the applicant. Mr
van Tonder
confirmed accordingly.
Discussion
[20]
The fact of the applicant having made a loan to Squires, on the terms
and conditions in regard to re-payment, provided for
in the loan
agreement, Squires’ breach thereof in failing to pay the debt
and the liability of the deceased estate in respect
thereof, remain
unchallenged.
[21]
The parties to the loan agreement clearly intended the property to
serve as security for payment of the debt. In
Cape Explosive Works
Ltd and Another v Denel (Pty) Ltd
2001 (3) SA 569
(SCA) para
[12], the Supreme Court of Appeal held:
‘
In
terms of s 3 of the Deeds Registries Act all real rights in respect
of immovable property are registrable. To determine whether
a
particular right or condition in respect of land is real, two
requirements must be satisfied:
1. The intention of the
person who creates the real right must be to bind not only the
present owner of the land, but also his successors
in title; and
2.  The nature of
the right or condition must be such that the registration of it
results in a ‘subtraction from dominium’
of the land
against which it is registered.
(
Erlax Properties
(Pty) Ltd v Registrar of Deeds
[1991] ZASCA 187
;
1992 (1) SA 879
(A) at
885B.)’
The
right of security over the property created in favour of the
applicant, constituted a real right, which was registered over
the
property by way of a mortgage bond. Upon default of payment, the
applicant would have been entitled to foreclose and to obtain
an
order that the property be declared specially executable.
[22]
It is trite that the rights and obligations in terms of an agreement
are transferred to the estate of a party to a contract
at the time of
his or her passing (Cf
Kruger v Kruger NO and Another
(97177/2017)
[2017] ZAGPPHC 1280 (13 December 2017) para 14).
[23]
Accepting as the parties do, that the subsequent transfer of the
property into the name of the applicant was invalid, the status
quo
ante
needs to be restored, by way of setting aside the existing
Deed of Transfer, and re-registration of the property into the name
of the deceased estate, in accordance with the relief sought by both
the applicant and the first respondent. The monetary judgment
and the
re-registration of the bond over the property sought by the
applicant, following upon Squires’ breach of the loan

agreement, are remedies following upon the contractual provisions of
the loan agreement, which have not been challenged.
[24]
No defence to the relief now sought has been advanced on behalf of
the respondents at the hearing before me.
[25]
For all the above reasons, I am satisfied that the applicant must
succeed in the relief now sought.
Costs
[26]
Mr
van Tonder
has asked for punitive costs against the first
and second respondents. Clause 14 of the loan agreement provides for
costs on the
attorney and own client scale. There are no
considerations militating against awarding costs on the scale
provided for in the loan
agreement. Although the second respondent
has actively participated in the proceedings, the real party, for all
practical purposes,
is the first respondent, who must bear the costs
of both the application and the counter-application.
Order
[27]
In the result the following order is made:
1.
The deed of sale in
respect of the property referred to in paragraph 3 of this order,
purportedly concluded between the applicant
and John Stuart Squires,
dated 7 December 2016, is declared void and is set aside.
2.
Deed of Transfer T
[....], issued by the Registrar of Deeds, Pretoria, is declared void
and is set aside.
3.
The property known as
Holding [….], S [....] Agricultural Holdings, Registration
Division IQ, North-West Province (the property)
shall, with the
applicant’s attorneys of record acting as the conveyancer, be
registered by the Registrar of Deeds, Pretoria,
into the name of the
deceased estate John Stuart Squires or into the name of the first
respondent, as the executor of the deceased
estate.
4.
The applicant shall
sign and execute all documents necessary to effect the said transfer.
5.
A mortgage bond,
substantially in accordance with mortgage bond B16/41998, shall
simultaneously with registration of transfer of
the property, be
registered against the property by the applicant’s attorneys of
record.
6.
The first respondent
shall, on demand by the applicant’s attorneys of record, sign
and execute all documents necessary to
effect the said registration,
failing which the sheriff of this court is authorized and directed to
sign the said documents on
behalf of the first respondent.
7.
The first respondent
shall, on demand by the applicant’s attorneys of record, pay
all costs and fees relating to and in connection
with the said
transfer and registration of the bond.
8.
The Registrar of Deeds,
Pretoria, is directed to effect transfer of the property and
registration of the bond, in terms of this
order.
9.
Judgment is granted
against the first respondent, in favour of the applicant, for payment
of the amount of R450 000.00, interest
thereon at the rate of 9% per
annum, compounded monthly, from 1 December 2016 to date of final
payment.
10.
The property is
declared specially executable.
11.
The first respondent’s
counter-application is dismissed.
12.
The first respondent
shall pay the applicant’s costs of the application and the
first respondent’s counter-application,
on the scale as between
attorney and own client.
13.
The second respondent
is to pay his own costs.
14.
Leave is granted to the
applicant to approach this court, on the same papers, revised and/or
supplementary directions in order for
the effective implementation of
this order.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
FOR
APPLICANT

ATTORNEY B VAN TONDER
APPLICANT’S
ATTORNEYS

THOMSON WILKS INC
COUNSEL
FOR RESPONDENT

ADV L GROBLER
1
ST
&
2
ND
RESPONDENTS’
ATTORNEYS

VAN

DER MERWE GREYLING
DATE
OF HEARING

26 MAY
2022
DATE
OF JUDGMENT

2
JUNE 2022