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[2010] ZAWCHC 515
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Madison Financing (Pty) Ltd Bernice Croeser and Another v Swanepoel NO and Others (20957/2010) [2010] ZAWCHC 515 (28 October 2010)
IN
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO
:
20957/2010
DATE
:
28 OCTOBER 2010
In
the matter between:
MADISON
FINANCING (PTY) LTD
….......................................................
1
st
Applicant
BERNICE
CROESER
(formerly
Andrews)
…...............................................
2
nd
Applicant
and
EVA
MARIE SWANEPOEL N.O.
…......................................................
1
st
Respondent
PAULUS
BERNHARDUS KOCH
….....................................................
2
nd
Respondent
JOZEPHSINCORPORATED
…............................................................
3
rd
Respondent
CHRISTINE
ADAMS
…........................................................................
4
th
Respondent
CLARA
SOLOMONS
….......................................................................
5
th
Respondent
HENNIE
JONKERS
…................................................................................
6
th
Respondent
SALIE
SOLOMONS
….........................................................................
7
th
Respondent
THE
REGISTRAR OF DEEDS. CAPE TOWN
…......................................
8
th
Respondent
JUDGMENT
STEYN,
J
:
In
essence applicants are applying for an order that first, second and
third respondents be interdicted and restrained from disposing
and/or transferring to any third party, a particular property
situate in Atlantis, Cape ("the property"), pending the
transfer of the property into the name of the second applicant in
terms of an agreement entered into between first respondent
and
second applicant.
After
I had perused the documentation, I requested a report from the
Master's Office.
Briefly,
first respondent was appointed as a Master's representative in terms
of
sec 18(3)
of the
Administration of Estate's Act, 66 of 1965
. Her
initial appointment in April 2008 was to attend to the finalisation
of the estate of Pieter Solomons and it was specifically
recorded
that the assets she had control over were furniture items to the
value of R5 000.
On
21 October 2009 first respondent was authorised by the Master to
take control of further assets, namely, the property in Atlantis,
which was valued at R120 000. The total value of assets she was able
to administer was now R125 000. A Master's representative
can only
be appointed if the value of the estate does not exceed the sum of
R125 000, being the amount fixed by the Minister
in the Gazette. The
Act does not allow the appointment of a Master's representative if
the amount available for distribution
in an estate exceeds that
amount.
First
respondent, apparently prior to being formally authorised to deal
with the immovable property, entered into an agreement
of sale with
second applicant in respect of the property. The Deed of Sale was
duly concluded on 2 June 2008. The agreement provides
that the offer
of the purchaser (second applicant) shall become a final and binding
sale upon acceptance by the seller (first
respondent), when the
seller signs the agreement. This she did on the said date. The
purchase price of the property was R120
000, which sum is payable in
cash on registration of transfer of the property.
The
sale agreement provides that the first respondent, as the seller,
appointed a Mr Steyl, who she referred to as "the seller's
attorneys", and provided further that the transfer shall be
given and taken as soon as possible and after conditions have
been
met. This particular condition is a condition that had to be met by
the first respondent.
The
agreement refers to breach of contract which mainly relates to the
purchaser failing to pay the purchase price on due date.
There is no
obligation on the purchaser (second applicant) to attend to the
registration of transfer of the property. This is
entirely the
obligation of the seller, who is the first respondent.
Mindful
of her obligations in this regard, the first respondent gave Power
of Attorney to her attorneys, the firm where Mr Steyl
was employed,
who is mentioned by name. These legal gentlemen are authorised "to
appear at the office of the Registrar of
Deeds and to pass transfer
to" second applicant of the property. She signs the document
herself.
No
immovable property can be transferred by the registration officer
unless and until the Master provided a certificate to the
executor
(or Master's representative) that the Master has no objection that
such transfer takes place. Presumably the Master
makes some
enquiries before such a certificate is issued. In this case, the
Master only affixed its stamp of approval for the
sale of the
property by the first respondent to second applicant on 27 January
2010. This stamp appears on the Power of Attorney
that first
respondent gave to Mr Steyl. There is no indication why this took so
long and the blame can definitely not be laid
at the door of the
second applicant.
In
the meantime the heirs to the deceased estate of Mr Solomons became
anxious to receive funds in advance in lieu of the eventual
payment
they expected when the property was ultimately transferred. A total
sum of R93 000 was advanced to them by the first
applicant, acting
in concert with the first respondent, who according to
documentation, also received some payments. The loans
of money
appear to be directly linked to the transfer of the property.
It
is alleged by the applicants that problems started when the first
applicant became reluctant to continue with the advancing
of the
funds. Be that as it may, the conveyancing attorney was allegedly
experiencing various difficulties with the finalisation
of the
transfer of the property. For some totally inexplicable reason he
alleges he approached the second respondent to assist
him with the
finalisation of the estate.
The
very opportunistic second respondent, however, somehow managed to
persuade the first respondent to allow him to handle her
matters
forthwith. He wrote a letter dated 4 June 2010 to De Waal Attorneys,
where Mr Steyl is employed, and informed them that
he was now the
agent for the first respondent, the Master's representative in the
Solomons estate matter. He also advised that
the mandate previously
given to Steyl by first respondent is cancelled and that he has no
authority to continue with the transfer
of the property transaction.
He insists that the Power of Attorney handed to Steyl by first
respondent should be handed back
to him.
Second
respondent annexes a so-called "boedelvolmag" signed by
himself and the first respondent. This document, also
dated
2
June 2010, states that second respondent is appointed as the
authorised agent of the first respondent "om die boedel te
administreer, beredder en af te handel volgens geldende wette"
etc. He is empowered with wide ranging powers to take all
the steps
in the administration of the deceased estate that the first
respondent should be attending to and he is entitled to
an
executor's fee. He is
inter
alia
authorised
to take steps to finalise the deceased estate including, it seems,
the transfer of the property.
I
do not believe this action of the first respondent is legally
competent. Sec 52 of the Act specifically provides that it is
not
competent for any person appointed executor to substitute or
surrogate any other person to act in his place.
In
the meantime, on 26 April 2010, the third respondent, for some
totally unfathomable reason, addresses a letter to the unsuspecting
undeserving second applicant. He advises her that he acts on behalf
of the first respondent in her capacity as the Master's
representative. He complains that since the conclusion of the
agreement on 2 June 2008, nothing "had expired",
presumably
meaning "transpired". Then, inexplicably he
adds that he demands that should proper performance of the agreement
not
take place on or before a certain date, his client will treat
the agreement as cancelled.
JUDGMENT
20957/2010
The
contents of this letter and the threat contained therein are nothing
short of preposterous. It is the agent of his own client
whom he
should blame for the fact that transfer is being delayed. It is
clear that no basis exists whatsoever for the cancellation
of the
contract.
Yet,
the dubious dealings in this matter are not complete. It was alleged
by the applicants that first respondent has now sold
the property to
an undisclosed third party for a higher purchase consideration than
the sum agreed to with second applicant.
It is admitted that such an
agreement was entered into, co-incidentally on 5 June 2010, just
after Mr Steyl was discarded. I
note that the respondents are
careful not to divulge the identity of the new buyer in their
documentation filed by them.
In
an attempt to justify the cancellation of the initial agreement with
the second applicant, the respondents allege that she
was put in
mora,
referring
to the inappropriate letter written to her, that I have referred to
above. In his affidavit second respondent then refers
to a letter
dated 5 May 2010 received by the firm De Waal Esterhuize, the
attorneys where Mr Steyl is employed. He seems to allege
that in
this letter Mr Steyl does not give a good explanation why the
transfer of the property is not being attended to and therefore
first respondent is entitled to cancel her agreement with the second
applicant.
My
reading of the letter does not indicate at all that Mr Steyl was
aware of the letter to the second applicant. Why should he
be? He is
not second applicant's representative. His reply cannot have any
consequences for the second applicant.
In
his affidavit the second respondent states,
inter
alia,
the
following:
Transfer
of the property was to take place within a reasonable time. He
seems to be unaware that this aspect was a term that
the first
respondent undertook to comply with when she appointed the
transferring attorney.
He
says second applicant was put to terms to comply within a specified
period. There is no indication what exactly she should
have or
could have done.
He
says the second respondent did not give an explanation why transfer
did not take place, referring to a letter by Steyl, which
once
again is preposterous.
4.
He states that second respondent was informed that the agreement of
sale was cancelled, presumably referring to second applicant.
No
indication or proof in this regard is provided.
Of
further note from the affidavit of the second respondent is the fact
that he alleges that first respondent and the heirs borrowed
money
from first applicant.
There
is a valid and binding sale agreement that has been authorised and
approved of by the Master. There is no reason why the
terms of this
agreement should not be complied with. It is imperative that
transfer of this property should now take place as
soon as possible.
I
have just received a very informative report from Mr Margolis at the
Master's office, for which I am grateful. He described
further
actions taken by the first three respondents that seem extremely
devious. In the telephone conversation with him, he
confirmed that
there is absolutely no objection to the immediate transfer of the
immovable property to the second applicant in
terms of the agreement
that he has already rectified. If she is willing to take transfer,
which I am informed she is.
Lastly,
I wish to record that I find the conduct of the first, second and
third respondents reprehensible. I do not believe justice
will be
served by making an order that will have the effect that the heirs
to the deceased estate should pay the costs occasioned
by the
Master's representative and the attorney and other representative
who acted unprofessionally and culpably on her behalf.
In
the premises, the following order is made:
After
perusing the documentation filed and hearing the legal
representatives of the parties, the Court orders:
1.
Non-compliance with the rules and practice of this Honourable Court
is condoned;
2.
Pending the final registration of transfer of Erf 6550, Westfleur,
in the City of Cape Town, first, second and third respondents
are
interdicted and restrained from disposing of/and transferring and/of
alienating as the case may be the property described
as Erf 6550,
Westfleur, in the City of Cape Town to any third party.
3.
That 8
th
respondent
be authorised to register a
caviat
against
the title deed of the property in accordance with the terms of this
order.
4.
That subject to second applicant's written undertaking to fully
comply with her obligations in terms of the agreement referred
to
hereunder, first respondent is ordered to take all necessary steps
to pass transfer of the immovable property to second applicant
in
terms of the written agreement of sale entered into between first
respondent en second applicant on 2 June 2008 within twenty
one (21)
days of today's order.
5.
That in the event of first respondent's failure, within 21 days of
this order to take the necessary steps to pass transfer
of the
property to second applicant, the sheriff of this honourable Court
is authorised to take such steps on first respondent's
behalf.
6.
That first, second and third respondents are ordered to pay the
costs of this application, the one paying the other to be absolved.
First respondent's payment to be
de
bonis propriis.
7.
A copy of this order shall be served on the Master's Office within
48 hours of the order being handed down.
STEYN, J