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[2024] ZAECQBHC 7
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I.L.L v L.V.H and Others (1889/2022) [2024] ZAECQBHC 7 (1 February 2024)
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
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE
NO.: 1889/2022
In
the matter between:
I[…]
L[…] L[…]
Applicant
and
L[…]
V[…] H[…]
First
Respondent
S[…]
A[…] V[…] H[…]
Second
Respondent
SPROINK
(PTY) LTD
Third
Respondent
FIRST
NATIONAL BANK
Fourth
Respondent
OLD
MUTUAL LIMITED
Fifth
Respondent
JUDGMENT
GQAMANA J
[1]
This is a typical matter that could and
should have been resolved through mediation. This is a family dispute
between the mother,
her daughter, and her son-in-law, the applicant,
the first and second respondents, respectively, about the return of
the applicant’s
identity Document, passport and bank card (“the
documents”). The third respondent is a company, of which the
first
and second respondents are directors. The fourth respondent is
First National Bank, a division of First Rand Bank. The applicant
holds a bank account with FNB. The fifth respondent is Old Mutual
Limited. The third, fourth and fifth respondents did not participate
in this application. The application is opposed by the first and
second respondents.
[2]
The matter has a long and acrimonious history. It started as an
extremely urgent
ex parte
anti-dissipation application wherein
the applicant sought a rule
nisi,
that the first to third
respondents’ bank accounts be frozen and the funds therein be
preserved pending an investigation
as to where the applicant’s
funds were transferred by the first to third respondents and, that
the first and second respondents
be ordered to immediately return the
applicant’s documents.
[3]
A rule
nisi
was issued by this Court on 8 July 2022, calling
upon the first to fourth respondents to show cause on 16 August 2022,
why the
interim anti-dissipation order should not be made final.
[4]
As part of the interim order, the fourth respondent, FNB was ordered
to furnish to the applicant
and her attorneys records relating to the
funds transferred to the applicant’s bank held with FNB and to
block any and all
accounts to which such funds were transferred, if
such accounts were held with FNB. Subsequent to compliance with such
an order
by FNB, the applicant discovered that a sum of R6 060 000.00
was transferred to Old Mutual. On the basis of that new
information,
a supplementary application was issued to join Old
Mutual as the fifth respondent and for a leave that the latter be
included in
the rule
nisi
and be ordered not to dissipate any
of the funds held by it on behalf of the first to third respondents.
Such an order was granted
by this Court on 19 July 2022.
[5]
On the eve of the return date, the first and second respondents filed
an answering affidavit.
In their affidavit it is admitted that they
received an amount of R4.7 million from the applicant. But they
contend that such money
was used to purchase a home for the applicant
and that, to avoid further disputes and transfer costs, there was an
agreement with
the applicant that the house would be registered in
the third respondent’s name. Furthermore, the first and second
respondents
tendered to pay back an amount of R6 million which was
transferred to the fifth respondent, Old Mutual. However, the first
and
second respondents denied that they are in possession of the
applicant’s documents. The first respondent contends that the
relevant documents were handed over to the applicant by her
personally in January 2022, when the applicant was admitted to Link
Nursing Home, (an assisted living facility) in Jeffreys Bay.
[6]
On the return date, the parties agreed to the following order:
“
IT
IS ORDERED BY AGREEMENT THAT
1.
The First, Second and Third Respondents are
ordered to do all things, pay all sums, fees and/or penalties, sign
all documents and
give the necessary authorisations to ensure that:
1.1.The
amount of
R6 060 000.00,
currently held an investment account, namely the Linked Investment
Plan with contract number: 1[…], held in the name of
the First
Respondent with the Fifth Respondents, be immediately paid to the
Applicant’s nominated Bank Account;
1.2.The
amount of
R120 000.00
,
currently held in the First Respondent’s Savings Account under
Account Number: 6[…] with the Fourth Respondent, be
immediately paid to the Applicant’s nominated Bank Account.
2.
The Fifth Respondent to immediately make
payment of the sum of
R6 060 000.00
to the Applicant, as envisaged in paragraph 1.1 above, and after such
payment has been made, to release the Investment Account.
3.
The Fourth Respondent to immediately make
payment of the sum of
R120 000.00
to the Applicant, as envisaged in paragraph 1.2 above, and after such
payment has been made, to release any block on the First
Respondent’s
Account. The Rule Nisi, in respect of paragraph 1.2 of the 8
July 2022 Order is duly confirmed.
4.
Once payment has been authorised and
effected in accordance with paragraphs 1 to 3 above, the issues
subject to the Rule Nisi, only
in respect of the Bank Accounts held
with the Fourth Respondent (as per paragraphs 1.1 and 1.5 of the
Order of 8 July 2022), as
well as the issue subject to the Rule Nisi
in respect of the Investment Account held within the Fifth Respondent
(as per paragraph
2.2 of the Order of 19 July 2022), is discharged.
5.
The discharge of the Rule as set out in
paragraph 4 above is agreed to without any waiver and/or relaxation
of the Applicant’s
rights and the Applicant’s rights
(including those rights related to the aspect of costs) remain
reserved.
6.
The Rule Nisi, in respect of the remainder
of the issues, subject thereto, including, but not limited to, the
issues as recorded
in paragraphs 1.3, 1.6 (as amended by this order),
1.7 and 2 of the Order of 8 July 2022, is duly extended, and the
application
postponed to the opposed motion roll of 27 October 2022.
7.
The First, Second and Third Respondents are
interdicted and restrained from alienating, encumbering, selling
and/or disposing of
the immovable property situated at
2[…]
S[…] ROAD, BEACHVIEW, GQEBERHA
until such time as legal process, legal action and/or proceedings for
payment, including such proceedings as envisaged in paragraphs
1.6 to
1.6.2 of the 8 July 2022 Order, is finalised, and the First, Second
and Third Respondents shall ensure that a caveat be
registered and/or
lodged with the Deeds Office in this regard. The First to Third
Respondents shall provide the Applicant’s
attorneys with proof
of the registration of the caveat within 30 days from date hereof.
8.
The First and Second Respondent and/or any
shareholder of the Third Respondent is interdicted and restrained
from selling, transferring,
ceding, assigning, delegating or
encumbering the shares held in the Third Respondent until
finalization the legal process, legal
action and/or proceedings for
payment, including such proceedings as envisaged in paragraphs 1.6 to
1.6.2 of the 8 July 2022 Order.
9.
The Applicant is to file a Replying
Affidavit to the First, Second and Third Respondents’ Answering
Affidavit, served on 15
August 2022 on or before 30 August 2022 and
all of the Applicant’s rights remain reserved.
10.
The Applicant is afforded until 30
September 2022 to institute legal process (including any application
and/or action proceedings),
as envisaged in paragraphs 7 and 8 above.
11.
Costs of the application, including the
costs related to the appearance on 16 August 2022, the urgent ex
parte applications of 8
July 2022 and 19 July 2022, as well as all
costs pertinent thereto, are reserved for final determination in the
opposed application.”
[7]
As a result of the above order, the only remaining issue was whether
the applicant was entitled
to a final order for the return of her
documents and the costs. The matter was set down on the opposed roll
before my colleague
Potgieter J on 27 October 2022. On the latter
date, the parties agreed to an order that the remaining issue be
referred to oral
evidence, and that the rule
nisi
be extended
accordingly, and that all the costs thus far be determined after
hearing oral evidence.
[8]
The crisp issue before me is whether the applicant is entitled to a
final order for the return
of her documents. The applicant’s
claim for such relief is based on
rei vindicatio.
[9]
In a claim based on
rei vindicatio,
the plaintiff (the
applicant in
casu
) must allege and prove:
9.1
ownership of the thing whether moveable or immovable.
[1]
9.2
that the defendant was in possession of the property when the action
was instituted.
[2]
[10]
It is common cause that the applicant is the owner of the documents
in question. The
lis
is whether the first and/ or the
second respondents were in possession of the documents when the
application was instituted. As
alluded in paragraph 5 above, the
first and second respondents deny that they are in possession of such
documents.
[11]
To grasp and contextualise the issues herein that led to the
institution of this application, I have to set
out brief and succinct
factual background. The applicant is an 83-years old person.
She is the mother and mother-in-
law of the first and second
respondents, respectively. She and the first respondent’s
biological father divorced when the
first respondent was relatively
young. Later on, she nurtured a relationship with P[…] L[…],
a British citizen, and
they got married. She and Mr L[…] moved
to the United Kingdom, where they lived together. The first
respondent had
no contact with her for about 35 years. It was around
September 2019 that the first respondent had contact with the
applicant on
Facebook. From thereon, they exchanged messages, and
during such conversations, the applicant informed the first
respondent that
her visa had expired and that her application for a
spousal visa was refused. Further, the applicant was afraid that if
she were
to be deported it would be via Addis Abbaba, where she may
be raped. Concerned about her mother’s predicament, the first
respondent suggested and agreed to assist the applicant with the
deportation process.
[12]
After some discussions, the applicant and first respondent agreed
that her mother would undertake the Voluntary
Return Process via the
UK Home Office and return to South Africa. Her application was
approved, and the Home Office made the necessary
travel arrangements
for her to return back to South Africa. She arrived in South Africa
on 11 November 2019, accompanied by two
carers who were appointed by
the Home Office in UK. On her return to South Africa, she moved
in and resided with the first
and second respondents at their home in
Jeffreys Bay.
[13]
Shortly thereafter, on or about 13 November 2019, the first
respondent and her daughter, Ms
M[…] v[…] H[.]
(M[…])
assisted the applicant in opening a bank account
with FNB in Jeffreys Bay. The applicant’s main living expenses
were paid
by the first and second respondents. I must also mention
also that the first respondent had signing powers on the applicant’s
bank account.
[14]
Later on, during February 2020, the first respondent again assisted
the applicant in applying for a social
grant at the South African
Social Security Agency (SASSA). In April 2020, the applicant received
an initial payment of her social
grant in the amount of R3 804.00 and
thereafter she received continuous monthly payment of R1800.00.
[15]
As a side issue, the applicant instructed a Solicitor from a Law firm
in the UK called Expatriate Law to institute
divorce proceedings.
While the divorce process was pending, sadly, her husband died
intestate, leaving the applicant with a lucrative
inheritance. The
monies received by the applicant as part of her inheritance were
deposited into her FNB account. There is an allegation
by the
applicant that the first respondent withdrew without authority a sum
of R9 120 000.00 from the aforementioned bank account.
[16]
Fast forward and zooming straight to the issue at hand, during
December 2021, the applicant became ill and
was diagnosed with a
bleeding stomach ulcer, and it became cumbersome to take care of her.
As a result, the first respondent arranged
for her to be admitted to
Link Nursing Home, a nursing facility in Jeffreys Bay at the
beginning of 2022. The first respondent
frequently visited her on a
weekly basis while she was at Link until she left in July 2022, and
this application was instituted.
[17]
It is against this factual background that the remaining issue in
dispute must be decided. Because there
were disputes of facts on the
remaining issue that could not be properly decided on affidavits, my
brother
Potgieter J
referred that issue to oral evidence in
accordance with rule 6(5)(g) of the Uniform Rules of Court. In order
to prove the applicant’s
case, two witnesses were called,
namely Sister
Amelia Coetzee
and the applicant. On the other
hand, the first and second respondent relied on the evidence of their
daughter
M[…]
, who was the only witness called in
support of their defence. I deal with their evidence below.
[18]
On the applicant’s evidence, her documents were inside her
handbag in the wardrobe in her room at Link.
The first respondent
visited her towards the end of January 2022, and took the handbag
with her documents inside. Since then, she
has never seen her
documents again. When this application was instituted, her documents
were still with the first respondent because
she never saw them again
since the first respondent took her handbag. She made an attempt to
obtain a new Identity document and
a Passport at Home Affairs, but
she was unsuccessful. She was informed by the officials at Home
Affairs that she was no longer
in their system due to the fact that
she had been out of the country for too long. Under cross
examination, she conceded that there
is no allegation in her founding
affidavit that, she saw the first respondent taking her handbag after
the latter told her that
she was instructed by the second respondent
to take the handbag. In addition, the applicant made a fundamental
concession that
she could not say that her documents were in the
second respondent’s possession. That concession exonerates the
second respondent
from the relief that the applicant now seeks,
namely the return of her documents. The applicant, however,
maintained her version
that her documents were taken by the first
respondent and disputed the proposition put to her that her documents
were in her handbag
in March 2022 when her granddaughter
M[…]
visited her at Link.
[19]
Regarding the bank card, the applicant testified that although she
managed to open a new bank account, but she
is still unable to access
the bank account relevant herein hence she needs her bank card. The
applicant under cross- examination
admitted that she had signed a
general power of attorney, giving the first respondent full power and
authority to act and transact
on her behalf and to manage her
affairs. That concession confutes her testimony that the first
respondent raided her bank account
and withdrew money therein without
her authority.
[20]
Viewed objectively, the applicant’s testimony was not without
contradictions. For instance, her
evidence painted the
first respondent in an extremely bad light, as a person who “forced”
her to sign some documents
that were not explained to her, but in the
end, that turned out not to be so. There are a couple of other
allegations made by the
applicant against the first respondent in her
oral evidence which are not contained in her founding affidavit. It
is on that score
that I understand Mr
Jooste
’s criticism
of the applicant’s evidence. However, in my view, the
correct approach is to evaluate her evidence
as a whole and not in
piece meal.
[21]
The second witness was Sister Coetzee.
[3]
Her evidence was that she never saw the applicant’s
original documents but only had sight of a copy of her ID, which
was
attached to the applicant’s registration form. While the
applicant was at Link facility, she had to book a doctor’s
appointment for her and it was then that the original ID document was
required. Because of that she had to contact the first respondent
to
bring the applicant’s original ID document. The first
respondent promised that she would bring it, but that never
materialised.
[22]
Furthermore, on 29 June 2022, the first respondent sent a voice-note
to Sister
Coetzee
saying that the applicant’s identity
booklet is locked in a safe at her house for safe-keeping. The gist
and content of the
aforementioned voice-note was repeated again by
the first respondent on 30 June 2022. Under cross examination, the
version put
to Sister
Coetzee
was that the first respondent
was referring to an official notarised copy and copies thereof, not
the “original ID”.
[23]
The applicant was not afforded an opportunity to test the first
respondent’s version under cross examination
because the latter
elected not to testify; instead, her daughter,
M[…],
was
her surrogate.
M[…]’s
evidence was that, when she
visited the applicant in March 2022, she saw the applicant’s ID
document in her handbag. Understandably,
she could not comment and be
of any assistance with regard to the voice-notes sent to Sister
Coetzee
by the mother, the first respondent.
[24]
In argument, Mr
Jooste
argued vehemently that the applicant’s
evidence that the first respondent took her handbag is a figment of
her imagination
and should be rejected. In advancing his submissions,
he placed emphasis on the fact that some of the allegations in her
oral evidence
are not contained in the founding affidavit. I accept
that her oral evidence canvassed broader and more detailed aspects as
compared
to her founding affidavit. However, the applicant’s
version that her documents are in the first respondent’s
possession
is corroborated by the voice-notes exchange from the first
respondent to Sister
Coetzee.
Twice, the first
respondent confirmed on the voice-notes that the applicant’s
‘ID booklet’ are in her possession
and are locked in a
safe for safe keeping. The first respondent’s exact words were
as follows:
“
Haai
Amelia, ek het nou haar ID boerie gaan uithaal want elk het dit in
die kluis toegesliut, ek so bang die die goed kry voete
en dan is ek
nog in dieper moeilikheid
”
.
[25]
As indicated above, the version put to the applicant and her witness
was that the first respondent would testify
that the documents in her
possession were notarised copies of the Identity document. The first
respondent was not called as a witness,
and as such, that proposition
was not confirmed by her. To the contrary, her surrogate,
M[…],
testified that the copies were certified copies.
[26]
Mr
Le Roux,
for the applicant, argued that I should draw an
adverse inference against the first respondent because she failed to
testify in
support of the allegations in her answering affidavit.
[27]
In
Elgin
Fireclays Limited v Webb
,
[4]
the Appellate Division (as it was then) held that, if a party fails
to place the evidence of a witness who is available and able
to
elucidate facts before the court, such failure leads naturally to the
inference that such party fears that such evidence would
expose facts
unfavourable to her. In the present matter, the first respondent was
present in court throughout the proceedings and
was available but she
did not testify and reiterated her version so that it could be tested
by cross examination. In light
thereof, the applicant’s
version as well as that of her witness is uncontested. The
applicant’s case is that her documents
are in the possession of
the first respondent, and she is entitled to their return.
[28]
This application is for a final interdict, and I’m satisfied
that the applicant has proved all the requirements
for an interdict.
No evidence was produced by the first respondent to gainsay the
applicant’s case. Furthermore, there
is no reason why the
final interdict should not be granted.
[29]
On the issue of costs, there are no reasons why the costs should not
follow the results. The applicant, as
a successful party is entitled
to her costs. Counsel for the applicant argued for punitive costs,
but I am not persuaded that this
case warrants punitive costs.
[30]
In the circumstances, the following order is issued:
1.
The Rule Nisi issued on 8 July 2022, as
amended by the Order of the Honourable Judge
Hartle
,
dated 16 August 2022, and the Order of the Honourable
Potgieter
J, dated 27 October 2022, is confirmed;
2.
The first respondent is ordered and
directed to hand to the applicant or her legal representatives,
within seven days from date
of this order, the applicant’s
original identity document, passport and bank card (“the
documents”);
3.
The first and second respondents, jointly
and severally, the one paying the other to be absolved, are ordered
and directed to bear
and pay the costs incurred in this application
including the costs pertaining to the following appearances:
3.1
The
ex parte
urgent application, issued and heard on 8 July 2022 before
van
Zyl
DJP;
3.2
The
ex parte
urgent application, issued on 18 July 2022 and heard on 19 July 2022
before
Da Silva
AJ;
3.3
The appearance on the Rule Nisi Return date
of 16 August 2022 before
Hartle
J;
3.4
The appearance on the extended Rule Nisi
Return date of 27 October 2022 before
Potgieter
J;
4.
The first respondent is ordered to pay the
costs incurred and the appearance costs on the issue referred to oral
evidence on:
4.1
20 July 2023;
4.2
21 July 2023;
4.3
27 November 2023; and
4.4
29 November 2023.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Adv
J H F Le Roux
Instructed
by
C/o
Jacques Du Preez Attorneys
Gqeberha
Counsel
for the 1
st
to 3
rd
Respondents
Adv
P Jooste and K M Morris
Instructed
by
Quinton
van den Berg Attorneys
Gqeberha
Heard
on
20
July; 21 July; 27 November; 29 November 2023
Judgment
Delivered on
01
February 2024
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Adv
Instructed
by
Attorneys
Gqeberha
Counsel
for Respondents
Adv
Instructed
by
Attorneys
Gqeberha
Heard
on
7
August 2023
Judgment
Delivered on
January
2024
[1]
Concor
Construction (Cape) Pty v Santam Bank Ltd 1993 (3) SA 930 (A).
[2]
Chetty
v Naidoo
1974 (3) SA 13
(A), Volken Rubber Works Pty Ltd v South
African Railways and Harbours
1958 (3) SA 285
(A) at 289F.
[3]
The
person in charge at Link Nursing Agency.
[4]
1947
(4) SA 744
(A) at 749 to 750.