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[2011] ZAGPPHC 7
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Mooikloof Gardens Home Owners Association v Franbert Construction (Pty) Ltd and Others (6088/2008) [2011] ZAGPPHC 7 (21 January 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NUMBER:6088/2008
DATE:
21/01/2011
In
the matter between:
MOOIKLOOF
GARDENS HOME OWNERS ASSOCIATION
..........................
APPLICANT
and
FRANBERT
CONSTRUCTION (PTY) LTD
…...................................................
FIRST
RESPONDENT
PRETORIUS,
THOMAS FREDERIK NO, (in his capacity as executor of the estate
of
the late FRANK PETER SEBASTIAN DE
VTLLIERS)
................................
SECOND
RESPONDENT
VAN
DER MERWE DU TOIT
INC
.
......................................................................
THIRD
RESPONDENT
VAN
RENSBURG, E J (NARDUS) T/A
C
A YOUNG
WAARDASIES
................................................................................
FOURTH
RESPONDENT
THE
CITY MANAGER,
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
...................................
FIFTH
RESPONDENT
THE
REGISTRAR OF
DEEDS
............................................................................
SIXTH
RESPONDENT
CORAM
EBERSOHN AJ
JUDGMENT
HANDED DOWN ON 21st JANUARY 2011
JUDGMENT
EBERSOHN
AJ.
[1]
The applicant is a company registered in terms of the provisions of
section 21 of the Companies Act, 1973. in compliance with
the
officially proclaimed establishment terms and conditions of Pretorius
Park X 25 ("the Township"), a security township,
which was
proclaimed in the Provincial Gazette Extraordinary No. 486 on 4
November 2004 ("the Proclaimed Township Preconditions")
which was attached to the record as annexure JJH 05 on page 156
bundle B. The applicant brought the application both in terms of
its
actual locus
standi
irj iudicio
as the Home Owners Association of the Township as well as being the
representative of the owners of erven in the Township, jointly
and
individually, in a class action, against the first respondent as the
developer of the Township, the late second respondent
in his capacity
as The responsible director of the first respondent and the third
respondent being the attorneys of the first and
second respondent who
did the transfer of a certain erf 1594, which belonged to the
applicant, to the first respondent. The attack
by the respondents on
the
locus
standi in iudicio
of the applicant was misplaced and fails.
[2]
The first respondent is a private company and was the developer of
the Township.
[3]
The late second respondent was a director of the first respondent and
he was the managing director of the applicant from the
29th June
2005, it being the date it came into being, until the applicant's
annual general meeting on 6 November 2006 when the
election of a new
board of directors took place. The second respondent died after the
matter was argued and before judgment was
given and was substituted
by order of the court on the 17th January 2011, by the executor of
his estate one Thomas Frederik Pretorius
in terms of the provisions
of Uniform Rule 15. In this judgment reference will still be made to
the second respondent in person
and not his executor.
[4]
The third respondent is Van der Merwe Du Toit Inc., the firm of
attorneys who attended to the transfer of the said erf 1504
back into
the name of the first respondent.
[5]
The fourth respondent is a sworn appraiser who trades as C.A. Young
Waardasies. No relief was sought against him unless he opposed
the
application.
[6]
The fifth respondent is the City Manager of the Tshwane Metropolitan
Municipality and no relief was sought against him unless
he opposed
the application.
[7]
The sixth respondent is the Registrar of Deeds who was formally
joined in the application.
[8]
Copies of the founding papers were also served on attorneys M.C. van
den Berg Inc. and the owners of erven in the Township.
[9]
The 22 prayers set out in the draft order "X" attached to
the notice of motion can more practically and conveniently
be
classified under five main headings and the relief asked for under
the five main headings will first be dealt with and thereafter
the
prayers will be dealt with separately.
[10]
The applicant, firstly, claimed an order for the surrender by the
first respondent, being the developer of the Township, to
the
applicant of the title deeds of erven 1593/12, 1641/17 and 1663 in
the Township (title deed numbers T054067/06, Tl641/17 and
T1663
respectively) being the title deeds of the common property in the
Township and which were registered in applicant's name
in 2006. All
the erven in the Township are freehold erven.
[11]
The applicant,
secondly,
c
laimed
an order setting aside the re-transfer of applicant's fourth common
property, erf 1594, from the applicant to the first respondent
which
transfer was registered on the 22nd May 2007 and ancillary orders
regarding the management of the applicant. The first respondent
initially caused the said erf 1594 to be registered in the name of
the applicant in compliance with the terms and conditions of
the
Proclamation, but, however, purporting to act on behalf of the
applicant, and whilst acting also on behalf of the first respondent,
the second respondent fraudulently signed a deed of sale in terms
whereof the applicant "sold" erf 1594 back to the first
respondent for the sum of R0,00 and he fraudulently also signed the
necessary power of attorney to have the erf transferred into
the name
of the first respondent which transfer was duly registered.
[12]
The applica
nt,
thirdly,
ask
ed
for an order declaring certain consents and contractual addenda,
which purchasers of erven in the Township signed, providing
that the
first respondent "retains" erf 1594, to be invalid.
[13]
The applican
t,
fourthly,
as
ked
for an order amending the title deeds of erven in the Township to
provide for improved and better circumscribed compulsory membership
of all the erf owners in the Township, of the applicant.
[14]
The applicant, fifthly, asked for an order deleting a limitation
registered against the title deeds of erven in the Township
in favour
of the first respondent and which in any case no longer applied, but
presented problems to owners of erven in the Township
when they tried
to transfer their erven after it was sold by them to third parties.
[15]
The first, second and third respondents opposed the application
except for the relief set out under headings one and five referred
to
in paragraphs [10] and [14] supra. It was conceded by them that the
applicant was entitled to the relevant title deeds and indicated
that
the first respondent was to let go of the limitation clause in favour
of the first respondent referred to in paragraph [14]
supra. The
court was given to understand, during the hearing of the matter, that
the title deeds were in fact already delivered
to the applicant.
[16]
The following quoted conditions contained in the Schedule to the
Proclaimed Township Preconditions as published in the Gazette,
referred to supra, are relevant:
a)
"
1.14
THE DEVELOPER'S OBLIGATIONS
1.14.1
ASSOCIATION AND STATUTES
The
developer must register a Section 21 Company (home owners
association) in terms of the provisions of the Companies Act, 973,
(Act 61 of 1973). All the owners of units in the township must become
members of the Section 21 Company. A copy of the registered
Deed of
Association (CM4) and the Company's Statutes must be submitted to the
City of Tshwane Metropolitan Municipality.
The
Association and Statutes must clearly state that the main objective
of the home owners' association is the maintenance of the
internal
engineering services of the development (i.e. water, sewerage,
electricity, and the road and stormwater sewers). The developer
is
deemed to be a member of the Section 21 Company, with all the rights
and obligations of an ordinary member, until the last erf
has been
transferred."
b)
1.15
TRANSFER OF LAND TO THE SECTION 21 COMPANY (HOME
OWNERS'
ASSOCIATION)
Erven
1594 and 1663 shall be transferred to the home owners' association
(Section 21 Company) by and at the expense of the township
owner."
c)
"
2.1
THE ERVEN MENTIONED BELOW SHALL BE SUBJECT TO THE
CONDITIONS
AS INDICATED, LAID DOWN BY THE CITY OF TSHWANE METROPOLITAN
MUNICIPALITY IN TERMS OF THE PROVISIONS OF THE TOWN-PLANNING
AND
TOWNSHIPS ORDINANCE, 1986 (ORDINANCE 15 OF 1986):
2.1.1
.........
2.1.2
.........
2.1.3
ERVEN 1593,1595 TO 1662 INCLUSIVE:
Upon
transfer, the owner of each erf must automatically become a member of
the Section 21 Company and remain a member until he or
she ceases to
be the registered owner of that erf, which condition must be included
in the title deed of the portion.
Transfer
of the erf to a third party is allowed only with the consent of the
Municipality and then only if the development of the
dwelling-unit
has been completed to the satisfaction of the
Municipality
in accordance with the approved site development plan."
[17]
A zoning certificate with regard to erf 1 594 was issued on the 23rd
February 2007 by the General Manager: City Planning of
the
Municipality. The following relevant portions appear therein:
"1.
USESONE: SPECIAL
2
.
APPLICABLE
ANNEXURE B
B
7203
3.
PURPOSES FOR WHICH BUILDINGS MAY BE ERECTED OR USED OR LAND-USED:
Uses
only as in Annexure B.
4.......
5.......
6.......
7.......
8.......
9.......
10.......
11.
ATTACHED DOCUMENTS:
*
Schedule 1: None
*
Annexure : B 7203."
[18]
Annexure B 7203, referred to in paragraph [17] supra, as issued by
the Municipality, with regard to erf 1594. indicated that
the zoning
of the erf was
"SPECIAL"
and
was subject to the following conditions:
"The
erf shall be used only for Private Open Space and Communal purposes
(Le. club-house and recreational facilities), subject
to the
following conditions"
and
6 standard conditions relating to all buildings in the proclaimed
township, were then also stated therein.
[19]
It is common cause that erf 1594 was transferred by the first
respondent to the applicant in terms of the stated Township
conditions on the 18th May 2006 under deed of transfer no.
T54036/2006.
[20]
As already stated the second respondent, however, caused the said erf
to be transferred back into the name of the first respondent
for a
purchase consideration of R0,00 on the 22nd May 2007.
[21]
The history of the re-transfer of erf 1594 to the first respondent is
not complicated. The second respondent was at the relevant
time a
director of the first respondent and was also the managing director
of the applicant since its initial registration. He.
fraudulently and
in clear breach of his fiduciary duty, instructed the third
respondent to draft the deed of sale and he then signed
the deed of
sale on behalf of the applicant as "seller" and the first
respondent as "purchaser". In terms of
the deed of sale erf
1594 was "sold" by the applicant to the first respondent
for R0.00. The R0.00 was based on a "valuation"
done by the
fourth respondent.
[22]
The second respondent returned the signed deed of sale to the third
respondent together with an "extract" from a
"resolution"
authorising the sale of the erf to the first respondent and the
second respondent to sign all documents
necessary to pass transfer of
the erf into the name of the first respondent. The third respondent
thereupon drafted the deed of
transfer.
[23]
At that point in lime the third respondent was the attorneys of the
applicant then being managed by the first and second respondent.
[24]
Erf 1594 was thereafter registered in the name of the first
respondent. The applicant maintained in this court that it was
dispossessed of this prescribed endowment property under the
prescribed township proclamation when the Township was proclaimed
as
such on 4 December 2004. through the unauthorized and fraudulent
deeds and actions of the first and second respondents. The
third
respondent so went the argument on behalf of the applicant, in the
process executed a totally
ah
initio
void re-transfer of erf 1594 back to the first respondent. The
applicant maintained:
(a)
that
it was common cause or undisputed or indisputable so that no
resolution by applicant's members or its Board of Directors was
ever
passed and recorded that authorized the re-transfer or any underlying
transaction;
(b)
the
"power of attorney to pass transfer" was assumed but false,
based on an assumed but false (non-existent) resolution
by an assumed
but false (never held) member's meeting: and
(c)
that
the third respondent, being aware of the dispute between the
applicant on the one hand and the first and second respondents
on the
other hand, and notwithstanding the clear and patent serious
conflicts of interests, not only failed to withdraw from both
applicant and first respondent it "acted for" in this
matter, even after they became aware thereof that the matter was
in
dispute, but it effected the unauthorized re-transfer based on the
assumed but false mandate against the interests of the applicant
as
its one (purported) client, and in favour of the interests of first
respondent, as its other client, it being trite that anything
thus
done or effected being void ah initio (founding papers item 7.6.10,
record p.A79), furthermore without ever having had sight
of the
alleged minutes of the meeting where the "resolution" was
allegedly adopted and which is now common cause was
never held and
that no such a resolution was ever adopted.
(d)
The applicant's said arguments cannot be faulted.
[25]
Upon a reading of the papers the conduct of the third respondent was
distressing and may have been unprofessional and the necessary
order
will be made in this regard.
[26]
This court also considered the conduct of the valuator who
mirahile
valued
the erf at RO.00. His valuation is not understood and clearly
assisted the first and second respondents to fraudulently,
as against
the applicant and the Receiver of Revenue, to acquire transfer of erf
1594 and to avoid paying transfer duty. The necessary
order will also
be made in this regard.
[27]
It was also argued on behalf of the applicant that if the first
and/or second respondents and/or the then attorneys of the
applicant,
who at that stage were, however, apparently reporting to the second
respondent and not to the applicant, complied with
their obligations
towards the applicant they would immediately, after registering erven
1594, 1593/12,1641/17 and 1663 into the
applicant's name, delivered
the title deeds thereof to the applicant and the second respondent
would not have been able to fraudulently
cause erf 1594 to be
transferred back into the name of the first respondent.
[28]
It is necessary to refer to another aspect of the documentation
regarding the transfer. The second and third unnumbered paragraphs
of
the preamble to the deed of sale read as follows:
"AND
WHEREAS the parties hereto agreed that the intention was that this
property needed to remain in the name of the PURCHASER
after
proclamation, for purposes of rezoning and further development
thereof;
AND
WHEREAS the parties now wish to rectify this situation
by
Selling
the property back to the PURCHASER;".
[29]
Despite the clear wording of the "deed of sale" in the deed
of transfer relating to erf 1594 in the name of the first
respondent
the causa for the transfer is stated by the conveyancer as being
"an
agreement in terms whereof the property mentioned herein be
re-transferred back"
to
the first respondent and not a
"sale"
as
indicated in the deed of sale.
[30]
Another ground was also relied upon by the applicant for the relief
claimed as is set out in paragraph [11]
supra
and that was that in terms of section 228 of the Companies Act, No.
61 of 1973, a company has no power to dispose of its undertakings
or
any of its assets otherwise than in furtherance of its objects
(Ridge
Securities Ltd. v IRC
[1964]
1
ALL
ER 275
(Ch) at 287-288).
Henochsberg
on the Companies Act,
dealt
with this on p. 441 of issue 27 and it is there stated:
"A
disposal which is not in furtherance of the company's objects is
ultra vires and void even if purportedly effected by the
directors
with the approval of the shareholders, subject, of course, to the
operation of section 36."
[31]
It is clear that section 36 of the Companies Act could not be invoked
by the first and second respondents as a defence against
the
applicant's attack.
[32]
With regard to the allegations made on behalf of the applicant that
there never was any resolution adopted either by the board
of
directors of the applicant or by the members of the applicant at a
general meeting of the applicant, Mr. Raath, who appeared
for the
first and second respondents, valiantly tried to persuade this court
that upon a construction of several documents it could
be said that a
resolution was adopted at a meeting, although the resolution did not
appear from the minutes of that meeting. It
was stated in some of the
supporting affidavits filed on behalf of the applicant that the
second respondent approached some of
the new directors of the
applicant and tried to persuade them to fraudulently "remember"
that the transfer of erf 1594
was in fact discussed at a meeting and
that the minutes inadvertently did not reflect it. They all refused
this approach by the
second respondent.
[33]
It is common cause that when instructing the attorneys to draft the
power of attorney to register the transfer of erf 1594
into the name
of the first respondent, the second respondent verbally confirmed to
them that a resolution was in fact adopted by
the applicant to
register the transfer of erf 1595 into the name of the first
respondent and that the second respondent never handed
such a
"resolution" to the said attorneys.
[34]
It is clear that such a resolution was never adopted. The third
respondent should have insisted on being provided with the
original
minutes of the meeting where the resolution was allegedly adopted the
moment they were informed that the resolution was
challenged by the
applicant, but apparently elected to rather aid and abet the first
and second respondents. How it came about
that the attorneys also
managed to persuade the Registrar of Deeds to by-pass the Proclaimed
Township Preconditions referred to
in paragraph [16] regarding erf
1594, is an aspect which will also have to be investigated by the Law
Society and the Registrar
of Deeds and they will also have to
investigate the issuing of a valid and genuine clearance certificate
regarding erf 1594 on
behalf of the applicant.
[35]
The first and second respondents relied with regard to the transfer
of erf 1594 back into the name of the first respondent
on a certain
clause inserted into an addendum attached to only some of the deeds
of sale, and not all of them, which were concluded
between the first
respondent as developer of the Township and some of the purchasers of
erven in the Township.
[36]
This clause was for instance not inserted into the deeds of sale
entered into between the first respondent and of the purchasers
of
erven in the Township as is described in paragraph 5.4.1 on page 77 1
of the founding papers.
[37]
The said clause inserted into the said certain deeds of sale reads as
follows:
"3.
The parties agree that Erf 1594 Pretorius Park Extension 25 remain
the property of the Seller and that the Seller is hereby
authorised
to rezone Erf 1594 Pretorius Park Extension 25 from "Private
Open Space and Communal purposes", to "Special
Residential"
("Residential 1") with
a
density
of "one dwelling per 750 M2 and herewith also authorises the
application of subdivision of Erf 1594 into two separate
erven."
[38]
It was submitted by Mr. Botha on behalf of the applicant that to
insert such a clause into the deeds of sale was a fraudulent
misrepresentation and did not empower the first respondent. ex-kge.
to take transfer of erf 1594 even if all the purchasers of
erven
would have signed for the transfer of erf 1594 into the name of the
first respondent. The first and second respondents could
therefore,
in any case, not rely on an alleged "unanimous consent" of
all the owners of erven in the Township as there
was no unanimous
consent as many of the owners did not sign such clauses.
[39]
It is also clear that, in terms of the wording of the Proclamation of
the Township, the applicant was to remain the owner of
erf 1594 to
utilise it as "communal property" until such time when, and
only in the event of. the Township Development
Conditions being
changed to enable the applicant to validly dispose of the erf by way
of sale. A transfer before then was explicitly
void
ah
initio
as it offended against the proclaimed Township Development
Conditions.
[40]
The applicant also relied on the fact that the purchase price was
stated to be R0.00 in the "deed of sale". It is
clear that
as the "deed of sale" was not a genuine deed of sale it is
not necessary* to deal further with this aspect
and the authorities
in that regard (e.g. Christie: The Law of Contracts. 5th ed. p. 122)
that any purported sale was at common
law invalid as there was no
purchase price.
[41]
It is therefore clear that the first respondent could not validly
take transfer of erf 1594. despite the fraudulent conduct
on the part
of the second respondent, and the transfer must be set aside as being
invalid and it is clear that the relief claimed
in the second prayer
must also be granted.
[42]
It is clear that the relief thirdly sought as is set out in paragraph
[
12]
supra namely for an order declaring the consents and contractual
addenda, which some purchasers of erven in the Township signed,
providing that the first respondent "retains" erf 1594. to
be invalid, must also be granted.
[43]
The court now deals with the relief fourthly sought by the applicant
as is set out in paragraph [13]
a
ipra
namely for an order amending the title deeds of erven in the Township
to contain improved and better circumscribed obligations
on the part
of owners of erven to clearly read that all the owners of erven in
the Township were compelled to be members of the
Home Owners'
Association. Bar the raising by the first and second respondents of
an argumentative and clearly misplaced point
in
limine
based
on an argument that all the owners of erven were not joined in the
action, there was no opposition to such relief on the part
of any of
the respondents and none of the owners of erven in the Township
objected thereto. The applicant's case regarding the
alleged
non-joinder of the other owners of erven in the Township, was based
on the provisions of section 38 of the Constitution
of 1996, and
consequently joinder of all the owners was no longer a requirement in
such instances. There is thus no merit in the
point
in
limin
e
and
the
applicant is entitled to such relief and an order will be granted in
that regard.
[44]
The respondents did not oppose the relief the applicant sought
fifthly, namely for an order deleting a limitation registered
against
the title deeds of erven in the Township in favour of the first
respondent and which in any case no longer applied, but
presented
problems to owners of erven in the Township when they tried to
transfer their erven after it was sold by them to third
parties and
the necessary order will be made in this regard too.
[45]
The court now deals specifically with each of the prayers contained
in the draft order to the notice of motion (pages 5-17
of the
record):
ad
prayer
1
.1:
The
delivery of the title deeds is not in issue and will be ordered,
ad
prayers 1
.2.
1.3
and 1.4:
It
is clear that the deed of sale and the transfer itself were void and
must be set aside and the necessary order regarding the
void deed of
sale and transfer and the cancellation of the endorsement on Deed of
Transfer No. T06752907 which evidences the transfer
of the property
into the name of the first respondent, will be made.
ad
prayer 1.5:
It
will be ordered that the relevant title deeds be delivered to and the
necessary steps be taken with regard to the order in terms
of prayers
1.2. 1.3 and 1.4 by the applicant's attorneys at the expense of the
first and second respondents.
ad
prayer 1.6:
The
first respondent will be ordered to sign all the
necessary'
documents
to give effect to the order made with regard to prayers 1.2, 1.3 and
1.4 failing which the Deputy Sheriff will be authorised
to sign such
documents.
ad
prayer 1
.7:
It
is necessary, in view of the fraud perpetrated upon the applicant,
that the auditor of the applicant must investigate and redraft
the
2006. 2007. 2008 and 2009 Financial Statements of the applicant and
the First and Second Respondents will be ordered to bear
these costs.
ad
prayer 1.8:
As
the
consents contained in any deed of sale and/or any addendum attached
to such deed of sale in terms whereof the parties agree
that erf 1594
remain the property of the first respondent is void, an order will be
issued to the effect that it be declared to
be void and of no legal
effect.
ad
prayer 1.9:
An
order
will be issued for record purposes and in so far
as
it
may be necessary, to the effect that the first respondent has ceased
to be the developer of the Township and is just an ordinary
member of
the applicant in the sense that it owns an erf in the Township and
that he is accordingly subject to the provisions of
sec. 5.11.7 of
the applicant's Articles of Association.
ad
prayer 1.10:
An
order will be made to the effect that the sixth respondent shall at
the cost of the first and second respondents insert the necessary
replacement conditions as is set out in prayer 1.10.
ad
prayer 1.11:
An
order will be made in terms of prayer
1.11
duly
supplemented as is set out in paragraph
8.2
on page 876/7 of the record but further amended by this court,
ad
prayer 1.12:
The
sixth respondent will be ordered in terms of prayer 1.12 to register
the compulsory' membership conditions as reformulated in
prayer 1.10.
ad
prayer
1.13:
The
necessary order will be made to compel the first respondent to sign
all documents required in terms of the order of the court
within a
stated period of tine failing which any Deputy Sheriff may sign such
documents.
ad
prayer 1.14:
An
order will he made declaring clause "4" or "G"(or
numbered otherwise in any title deed of any erf in the
Township which
reads to the effect that the erf may not be transferred without the
written consent of the first respondent) be
declared null and void as
from the 6th November 2006, and authorising the sixth respondent to
amend the title deeds concerned accordingly.
ad
prayer 1.15:
A
declarator will be issued to the effect that the first respondent as
from the 6th November 2006 had no authority in respect of
any erf in
the Township other than where the first respondent is the owner of
such erf.
ad
prayer
1.16:
A
declarator will also be issued to the effect that the applicant was
the sole Home Owners' Authority in the Township as from the
6th
November 2006.
ad
prayer 1.17:
An
order will be issued to the effect that sec. 5.11.8 of the
applicant's Articles of Association must be complied with before any
application may be lodged to the Registrar of Deeds to subdivide or
rezone erf 1594 in the Township by the then owner of the said
erf and
that the order be registered against the records of the sixth
respondent relating to erf 1594.
ad
prayers 1.18,1.19.1.20 and 1.21:
The
necessary costs orders will be made.
[46]
Regarding costs it is clear that the conduct of the first and second
respondents was fraudulent and despicable and their actions
call for
a severe punitive order.
[47]
The conduct of the third respondent, the attorneys, must now be dealt
with. It will be necessary, as examples of their conduct,
for
purposes of this judgment, to refer to a few aspects (there are many
more worrying aspects):
a)
Firstly,
there is the letter of the 11th April 2007 by their Mr. van Eetveld
(annexure JJH44 record p. 327), to Van As Prokureurs.
who were then
acting for the applicant. Mr. van Eetveld in the said letter conceded
that they were informed by Van As Attorneys
that the right of the
first respondent to take transfer of erf 1594 was disputed, but Mr.
van Eetveld categorically stated the
following:
mn
Blote deurlees van die Huiseienaarsvereniging
se
vergaderingnotules
maak dit duidelik dat dit gemene saak was te alle relevante
rye
dat
ons kiient geregtig is op die neem van oordrag en daar is meer as
voldoende stawende dokumentasie wat dit bewys. Daarbenewens
het
iedere en elke lid van die Huiseienaarsvereniging op die relevante
tye 'n dokument onderteken en/of toestemming gegee vir die
oordrag en
die (sic) indien u kiient se betwisting van die reg tot oordrag
daarop gebaseer is dat daar nie so'n ooreenkoms was
nie is dit bloot
opportunisties.
Ons
instruksies is om w mee te deel dat ons kiient voortgaan met die
oordrag."
b)
As
is set out in this judgment the transfer of the property to the first
respondent was not resolved at any meeting whether of the
board of
directors or of the owners of the erven at a general meeting. The
assertion that it is proven by the minutes is thus false
and
irresponsible. It also materialised that the "meer as voldoende
stawende dokumentasie wat dit bewys" which Mr. van
Eetveld
referred to. did not exist.
c)
According
to the answering affidavit deposed to by Sonja Janse van Rensburg the
third respondent was aware of what the second respondent
was up to
namely to re-transfer erf 1594 back into the name of the first
respondent. One thing she did not deal with, or adequately
deal with
in her affidavit, was how they got past the clear provisions of the
Proclaimed Township Conditions set out in paragraph
[16] of this
judgment and how a clearance certificate was obtained. It is also not
clear how she could have drafted the resolution
allegedly "adopted"
where there were no minutes and there never was a meeting held and
which was contrasted by the point
of view of Mr. van Eetveld that
reliance was placed on the "consents" of the owners, and
not a resolution adopted at
a meeting.
d)
The
answering affidavit filed on behalf of the third respondent was not
up to the standard one would have expected from attorneys
in the face
of the clear facts of the case.
[48]
As
it is obviously necessary for the Law Society to investigate the
fitness or not of the attorney(s) involved to remain on the
roll of
attorneys the applicant's attorneys will be ordered to draft a
comprehensive referral to the Law Society, which referral
must
include this judgment, wherein the conduct of the attorneys is
specifically detailed and supported with annexures and to assist
the
Law Society in their investigations of the matter. As it would be
unfair to burden the applicant and/or their attorneys with
the
attorney and client costs relating to the preparation, drafting,
typing and making of copies of documents for referral purposes
and
for attendances on the Law Society and giving of evidence there at
any hearing, the third respondent will be ordered to pay
all the
taxed costs of the applicant's attorneys regarding the referral of
their conduct to the Law Society on the scale of attorney
and own
client.
[49]
In
the light of the costs order referred to in paragraph
[48]
and
upon other considerations this court will not order the third
respondent to pay the costs of the application
de
bonis
propriis
jointly with the first and second respondents.
[50]
The
conduct of the valuator, set out in paragraph
4.30
of
the founding affidavit and elsewhere in the papers, must also be
referred by the applicant's attorneys to the Board of Valuators
so
that the Board can institute such disciplinary measures against him
as the Board may deem fit. The valuation is misleading and
the second
unnumbered paragraph of paragraph
3.2
(record
p.
227)
which
reads as follows is false and untrue and was clearly generated to
enable the first respondent to take transfer of the erf
to the
prejudice of the applicant and without paying transfer duty :
"In
die Stigtingsvoorwaardes is daar egter tussen die ontwikkelaar en die
Mooikloof Gardens Home Owners Association ooreengekom
dat die eiendom
weer terug sal gaan na die ontwikkelaar en het die eienaarsvereniging
dus nie 'n reg tot die eiendom vir verdere
ontwikkeling nie. Die
eiendom is dus vir die Mooikloof Home Owners Association nul rand
(RD) werd."
[51]
The
applicant's attorneys will also be ordered to forward copies of the
papers in this matter, this judgment, and the referrals
to the Law
Society and the Board of Valuators to the South African Revenue
Service to investigate the matter and to institute such
action and/or
to impose such penalties and/or institute such prosecutions as they
may deem fit.
[52]
The
following order is accordingly made
1.
1.1
The
first and second respondents are ordered to within
48
hours
of the service of this order upon them, at their own expense, to
deliver to the applicant's attorneys' office during office
hours, the
title deeds in respect of erven
1593/12.
1663
and
1641/17.
Pretorius
Park Extension
25.
Pretoria.
1.2
It
is declared that the deed of sale dated the 24th July 2006. in terms
whereof the applicant purportedly sold to the first respondent
erf
1594 Pretorius Park Extension 25, Pretoria, as was signed by the
second respondent on behalf of the applicant as seller and
the first
respondent as purchaser, is void ah origine and is set aside.
1.3
a)
The transfer of erf 1594 Pretorius Park Extension 25 from the
name of
the
applicant into the name of the first respondent under title deed no.
T06752907 is declared void and is set aside and the sixth
respondent
is ordered to cancel title deed no. T 06752907.
b)
The sixth respondent is ordered to simultaneously cancel the
endorsement on title deed no. T54036/2006. it being the title deed
under which the applicant held the property erf 1594 Pretorius Park
Extension 25, Pretoria, to the effect that the property was
transferred into the name of the first respondent.
1.4
The
first respondent is ordered to within 48 hours of the service of this
order upon it, at their own expense, to deliver to the
applicant's
attorneys' office during office hours, title deeds numbers
T54036/2006 and T06752907. to enable the applicant's attorneys
to
prepare the necessary documentation to present to the first
respondent for signature and to the sixth respondent for registration
and recording.
1.5
The
first and second respondents are ordered, jointly and severally,
payment by the one absolving the other, to pay. upon receipt,
the pro
forma account of the applicant's attorneys with regard to any fees,
costs, duties and expenses to cause effect to be given
in the office
of the Registrar of Deeds to the contents of paragraph 1.3 (a) and
(b) of this order.
1.6
The
first respondent is ordered to within 48 hours of the presentment to
it of the necessary documents as prepared by the applicant's
attorneys to cause effect to be given to paragraph 1.3 (a) and (b) of
this order, to sign such documents and in the event of the
first
respondent failing to so sign, any Deputy Sheriff is authorised to so
sign the said documents which signature shall be accepted
by the
Registrar of Deeds as the signature of the first respondent.
1.7
The
first and second respondents are ordered, jointly and severally,
payment by the one absolving the other, to pay. upon receipt,
the pro
forma account of the applicant's auditors with regard to any fees,
costs, duties and expenses to redraft the applicant's
2006, 2007,
2008. 2009 and 2010 Financial Statements caused by the effect of this
order regarding the ownership of erf 1594 Pretorius
Park Extension
25, Pretoria upon it's financial position and to resubmit it to the
Receiver of Revenue and to pay any penalties
and or levies imposed by
the Receiver of Revenue with regard thereto.
1.8
It
is declared that the consents contained in any deed of sale entered
into between the first respondent and any purchaser of an
erf in the
Township Pretorius Park Extension 25. Pretoria and/or any addendum
attached to such deed of sale in terms whereof the
parties agree that
the said erf 1594 remains the property of the first respondent, be
void and of no legal effect.
1.9
It
is declared for record purposes and in so far as is may be necessary,
that the first respondent has ceased to be the developer
of the
Township Pretorius Park Extension 25. Pretoria and is just an
ordinary member of the applicant in the sense that it owns
an erf in
the Township and that it is according subject to all the provisions
of the applicant's Articles of Association including
section 5.31.7
thereof.
1.10
a)
The Registrar of Deeds shall, subject to the contents of and
conditions
set
out in paragraph 1.12 of this order, and after the expiration of the
period of time staled in paragraph 1.11 (b) of this order,
or after
the final determination of any application brought by an owner of an
erf in terms of the said paragraph, endorse the insertion
or the
replacement of existing related and comparable conditions in each and
every title deed of the erven in the Township Pretorius
Park
Extension 25. Pretoria, (referred to as the "Membership
Provision") excluding that of erven 1594. 1663. 1593/12
and
1641/17. of/by the draft set out in prayer 1.10 as a pre-amble and
paragraphs (a), (b). (c). (d). (e). (f), (g). <h) and
(i)
respectively thereto.
b)
The
Registrar of Deeds is ordered to include and register paragraphs (f),
(g) and (h) of the draft referred to in paragraph 1.10
(a) of this
order against the title deeds of erven 1594. 1663, 1593/12 and
1641/17 in the Township Pretorius Park Extension 25.
Pretoria, with
the indication therein that the "MGHOA" referred to therein
shall mean and be understood to mean the Mooikloof
Gardens Home
Owners' Association (No. 2004/029778/08) or any Section 21 Company
that may become successors in title thereof or
position in line of
succession thereof within the said Township.
c)
The
first and second respondents are ordered, jointly and severally,
payment by the one absolving the other, to pay, upon receipt,
the pro
forma account of the applicant's attorneys with regard to any fees,
costs, duties and expenses to cause effect to be given
in the office
of the Registrar of Deeds to the contents of paragraph 1.10 (a) and
(b) of this order.
1.11
a) That a copy of this order shall be served by the Deputy Sheriff on
each and every owner of an erf in the Township Pretorius
Park
Extension 25, Pretoria (except erven 1594, 1663, 1593/12 and 1641/17)
at the address of the erf together with a written notification
containing the full wording of the replacement conditions referred to
in paragraph 1.10 (a) of this order and informing each owner
of the
date this order was made, by the applicant addressed to each owner of
an erf. and wherein such owner is specifically referred
to the
contents of the order as a whole and specifically the contents of
paragraph 1.11 (b) of this order.
b)
Each
owner shall have a period of 3 months from the date of this order to
apply
by
way of notice of motion, served on the applicant, to this court to
show
7
cause why the conditions referred to in paragraph 1.10 (a) should not
be inserted in the title deed of his/her/its erf, and in
the absence
of such application by any owner the conditions
will
be
inserted in the title deed of each erf as is set out in paragraphs
1.10 (a) and (b) of this order.
c)
The
first and second respondents are ordered, jointly and severally,
payment by the one absolving the other, to pay. upon receipt,
the
attorney and client bill of costs of the applicant's attorneys with
regard to any fees, costs, duties and expenses including
the fees of
the Deputy Sheriff to cause effect to be given to paragraph 1.11 (a)
of this order.
1.12
The
conditions referred to in paragraph 1.10 (a) to be registered by the
Registrar of Deeds against the said erven shall apply from
the date
of this order and be permanent conditions applicable to the said erf
and shall be inserted in each successive title deed
of each erf.
1.13
In
the event of there being any other documents than those stated in
this order that has to be signed by or on behalf of the first
respondent to give full effect to this order, the applicant's
attorneys shall prepare such document(s) and present the first
respondent
therewith which shall be obliged to sign such document(s)
within 48 hours failing which any Deputy Sheriff shall be entitled to
sign such document on behalf of the first respondent and such
document(s) signed by the Deputy Sheriff shall be accepted for all
necessary purposes as being signed by and/or on behalf of the first
respondent.
1.14
a)
It is declared that clause "4" or "G" (or
numbered otherwise) in any
title
deed of any erf in the Township Pretorius Part Extension 25,
Pretoria, which reads to the effect that the erf may not be
transferred or as is stated and detailed in prayer 1.14. without the
prior written consent of the first respondent, be declared
null and
void as from the 6th November 2006.
b)
The
first respondent is ordered to within 48 hours of the presentment to
it of the necessary documents as prepared by the applicant's
attorneys to cause effect to be given to paragraph 1.14 (a) of this
order, to sign such documents and in the event of the first
respondent failing to so sign, any Deputy Sheriff is authorised to so
sign the said documents which signature shall be accepted
by the
Registrar of Deeds as the signature of the first respondent.
c)
The
first and second respondents are ordered, jointly and severally,
payment by the one absolving the other, to pay. upon receipt,
the pro
forma account of the applicant's attorneys with regard to any fees,
costs, duties and expenses to cause effect to be given
in the office
of the Registrar of Deeds to the contents of paragraph 1.14 (a) of
this order.
1.15
It
is declared that the first respondent as from the 6th November 2006
had no authority in respect of any erf in the Township Pretorius
Park
Extension 25. Pretoria, other than where the first respondent is the
owner of such erf.
1.16
It
is declared that the applicant was the sole Home Owners' Authority
within the Township Pretorius Park Extension 25. Pretoria,
as from
the 6th November 2006 and that any authority the first respondent may
have had at that stage in respect of any home owner
or erf in the
Township (actual ownership of an erf excluded) including also any
such rights and obligations of the Developer as
may be registered in
any title deed in respect of any erf in the Township on that date
have passed to the applicant.
1.17
It
is ordered that sec. 5.11.8 of the applicant's Articles of
Association must be complied with before any application may be
lodged
to the Registrar of Deeds to subdivide or rezone erf 1594 in
the Township Pretorius Park Extension 25. Pretoria, by the then owner
of the said erf and that this order be registered against the records
of the Registrar of Deeds relating to the said erf 1594.
2.
The
first respondent and the estate of the second respondent are ordered
to pay. jointly and severally", payment by the one
absolving the
other, the applicant's costs of the application and the costs of the
referral to the Receiver of Revenue ordered
in paragraph 6 of this
order, all on the scale of attorney and own client.
3.
The
third respondent is ordered to pay its own costs.
4.
a)
The matter is referred to the Law Society of the Northern
Provinces and the
applicant's
attorneys are ordered to draft a comprehensive referral to the Law
Society, which must include this judgment and the
record of the case,
wherein the conduct of the third respondent in their capacity as
attorneys is specifically detailed and supported
with annexures and
to assist the Law Society in their investigations of the matter until
its conclusion.
b)
The third respondent is ordered to pay all the taxed attorney and
client fees and costs relating to the preparation, drafting,
typing
and making of copies of documents for referral purposes and for
attendances on the Law Society and the giving of evidence
there at
any hearing, until the final conclusion thereof, on the scale of
attorney and own client.
5.
a)
The matter is referred to the Board of Valuators having
jurisdiction over the
fourth
respondent and the applicant's attorneys are ordered to draft a
comprehensive referral to the said Board, which must include
this
judgment, wherein the conduct of the fourth respondent in his
capacity as valuator is specifically detailed and supported
with
annexures and to assist the said Board in its investigations of the
matter until its conclusion.
b)
The fourth respondent is ordered to pay all the taxed attorney and
client fees and costs relating to the preparation, drafting,
typing
and making of copies of documents for referral purposes and for
attendances on the said Board and the giving of evidence
there at any
hearing, until the final conclusion thereof, on the scale of attorney
and own client.
6.
The applicant's attorneys are ordered lo forward copies of the papers
in this matter, including this judgment, and the referrals
to the Law
Society and the Board of Valuators, to the South African Revenue
Service to investigate the matter and to institute
such action and/or
to impose such penalties and/or institute such prosecutions as they
may deem fit.
P.Z.
EBERSOHN
ACTING
JU
DGE
OF
THE HIGH COURT
Applicant's
counsel Dr. T.J. Botha
Applicant's
attorneys Jacques van Wyk & van As
Tel.
012 x 332 5790
Ref.
Mr. J. van Wyk/KM 1047
First
and second respondents' counsel Adv. R.J.Raath SC
assisted
by Adv. J J). Venter
First
and second respondents' attorneys Roestoff, Venter & Kruse
Tel.
Ref.
Mr. J. Roestoff
Third
Respondent's counsel Adv. F.J. Erasmus
Third
respondent's attorneys Van der Merwe Du Toit Inc.
Tel.
Ref.