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2023
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[2023] ZAFSHC 22
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Steyn v Ngququ N.O and Others (4133/2022) [2023] ZAFSHC 22 (23 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:4133/2022
Reportable:
NO
Of interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
DANẺ
STEYN
Applicant
and
ZWELIBANZI
WILLIAM NGQUQU N.O.
1
st
Respondent
(In his capacity as the
executor of the deceased estate of the
late
Petru Steyn, Estate Number 3[…])
MASTER
OF THE HIGH COURT BLOEMFONTEIN
2
nd
Respondent
THE
REGISTRAR OF DEED BLOEMFONTEIN
3rd Respondent
WATERLAAGTE
VOERKRAAL (PTY) LTD
4
th
Respondent
MARIETA
STEYN
5
th
Respondent
HEARD
ON:
17 NOVEMBER 2022
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 12h30 on 23 January 2023.
[1]
The applicant filed an application on 30 August 2022 for an interim
interdict to restrain
the first respondent from passing the transfer
of the farms to the fourth respondent pending:
1.1
An application for declaratory relief to
the effect that the agreement of sale was concluded in conflict with
section 47 of the
Administration of Estate Act, 66 of 1965; and
1.2
An application to review and set aside the
decision of the second respondent in terms of which the second
respondent was to issue
the certificate in terms of section 42 (2) of
the Act.
[2]
The application was opposed only by the first respondent, who filed
and served his
notice to oppose on the same day.
[3]
An order was granted by the court on 2 September 2022 by agreement
between the applicant
and the first respondent in the following
terms:
“
1
The application was postponed to the opposed roll of 17 November
2022;
2
The First Respondent is interdicted
and restrained pendente lite from transferring the farms set out in
paragraphs 2.1 and 2.2 hereunder
(“the farms”) to the
Fourth Respondent, pending the finalisation of this application:
2.1
The remainder of the farm S[...]
number 6[...], district B[...], in extent 9[...], 9572 hectors;
2.2
The remainder of the farm S[...]
number 3[...], district B[...], in extent 6[...],4012 hectors; and
3.
The first respondent shall file his answering affidavit (if any)
within 15 days
from date of this order;
4.
The applicant shall file her replying affidavit within 10 days from
the date
on which the First Respondent’s answering affidavit is
filed (if any);
5.
The parties shall file
heads of argument as per the practice directives of the Free
State
Division of the High Court;
6.
Costs to be costs in the application
.”
[4]
Despite the parties being
ad idem
that
the relief sought has become moot (though on different grounds), they
insisted that the matter should proceed. The applicant
was of the
view that the merits of the application were only relevant in so far
as the costs were concerned. The first respondent
insisted that the
merits of the matter should be adjudicated in their entirety.
[5]
In his opposition, the first respondent raised three preliminary
points. He contended
furthermore that he acted lawfully and that the
applicant was not entitled to the relief sought as a material dispute
existed on
the papers.
[6]
The matter has, for all intents and purposes, become moot. I shall
therefore confine
myself only refer to those portions that are
relevant to the decision that I arrived at.
[7]
It is common cause that the fifth respondent and the applicant are
sisters who were
bequeathed the two farms that are the subject matter
of this application. The bequest was subject to their grandmother’s
usufruct.
[8]
The executor of the deceased estate, the first respondent, could not
transfer the farm to
both the fifth respondent and the applicant
jointly as natural persons may not hold an undivided share in
agricultural land in
terms of section 3 of Act 70 of 1970.
[1]
The farm was subsequently sold to the fourth respondent at a public
auction on 4 May 2022. Pursuant to the sale, the master issued
a
certificate in terms of section 42 (2) of the Act on 22 August 2022
confirming that no objection was raised to the sale of the
farms.
First
point
in limine
:
non-compliance with the provisions of regulation 3 (1) promulgated
under the Justice of the peace and Commissioner of Oaths Act.
[9]
In support of its submission that the application has become moot,
the first respondent
stated that the applicant averred in the first
paragraph of the founding affidavit that she was a female person
whereas the attestation
clause identified the applicant as a male
person. The founding affidavit was therefore neither properly
attested to nor properly
commissioned. It was therefore fatally
defective and failed to comply with the requirements of regulations 3
(1) and 4 (1) of the
Act. The court could not give effect to the
presumption of regularity that the oath was sworn to and signed in
the presence of
a commissioner of oaths. The variance in the gender
reference called for the conclusion that the oath was conducted in
the absence
of the deponent.
[2]
[10]
The first respondent then referred to
Parys-aan-Vaal
Woonstelle (Pty) Ltd and another vs. Plexiphon 115 CC
[3]
,
Absa
Bank vs. Botha N.O. and others
[4]
and
Southey
vs. Vorster and others
[5]
These authorities are distinguishable from the present matter and do
not assist the first respondent’s argument.
[11]
In the
Parys-aan-Vaal
Woonstelle
case,
the objection was premised on non-compliance with regulation 4(1)
which governs the administration of oaths or affirmations.
The
commissioner of oaths certified the affidavit and omitted to delete
the applicable gender and was identified as a “
he/she”.
In
holding that the affidavit was not properly commissioned and that
there was no substantial compliance with the requirement of
Rule 4
(1), the court stated that the affidavit fell short of the
requirements contemplated in Rule 6 (5) (d) (ii) and the fact
that
the gender of the deponent did not appear anywhere in the affidavits,
supported the inference that he did not appear in person
before the
commissioner of oaths.
[6]
[12]
In
Southey
[7]
,
certain factors influenced the court to conclude that the attestation
by the commissioner of oaths was not done in the presence
of the
deponent. These were:
a)
The
place where the affidavit appeared to have been attested and the
implied “
unlikelihood,
that both
[8]
must have travelled a distance in excess of 150 km to the place of
attestation whilst they resided less than 40 km (distance from
X[...]
Dam to V[...]) from each other;”
b)
What
made matters worse was that the second respondent raised the
attestation as a point in
limine
in
his answering affidavit but the applicant elected to do nothing to
correct it. Another irregular conduct was when the applicant’s
counsel attempted to hand up from the bar a statement obtained from
the commissioner on the day of the hearing.
[9]
[13]
In the
Absa
bank case
[10]
,
the
applicant approached the court on an
ex
parte
basis
for summary judgment. The respondent objected to the application as
the affidavit was not properly attested to and could thus
not serve
as a verified affidavit for summary judgment purposes. A
verifying affidavit is a sine qua non to the summary judgment
procedure. It was obligatory for the applicant to ensure that his
founding affidavit was compliant with the law.
[11]
[14]
In her reply, the applicant (unlike in the
Southey
matter) corrected the position. She stated that the reference to “
he”
instead of “
she”
in the attestation clause at the end of
her founding affidavit, was merely a typographical error. She
attached an affidavit by the
commissioner of oaths in confirmation.
[15]
In these circumstances, it is clear to me that form is elevated above
substance. Unlike the situation
in the summary judgment application
in
Absa Bank,
no prejudice will arise if the matter is proceeded with. I agree with
the argument that this point in
limine
is purely technical. The omission to
indicate the correct pro-noun “
she”
should not lead to an inference that
the founding affidavit was not properly commissioned. An explanation
was provided. This point
in
limine
should therefore fail.
Mootness
[16]
In support of its submission that the application has become moot,
the first respondent stated
the following:
“
Second
point in limine
3.1
The relief sought by the Applicant has become moot. It became moot
even prior to the institution of the present proceedings
and both the
applicant and her legal representative was very well aware of this.
3.2
The Fourth Respondent lost all interest in acquiring the properties
and the retracted all
offers to acquire the properties prior to
institution of the present application. This was done particularly
due to the background
of the matter and the Applicant constant
dissatisfaction with the administration of the estate which will be
addressed in more
detail below.
3.3
Upon receipt of the application my attorney of record contacted the
applicant’s attorney
of record and exchanged several
correspondence indicating that the present application is nothing
more than an abuse of process
and constituted incessant and
unnecessary litigation as no risk exist that the properties will be
sold to the fourth respondent.
3.4
It was suggested by my attorney of record that the applicant
withdraws the application and
tender my costs at the time, which
costs was limited at the time. Applicant was however not amenable to
agree to such proposal
and elected to proceed with the application
3.5
I respectfully submit that the application has become moot and that
the honourable court
ought not to be burdened with adjudication of
applications of this nature.”
[12]
[17]
What is strange is that Daniel Verster, the only director of the
fourth respondent, filed an
affidavit on 7 October 2022
[13]
and confirmed that he informed the first respondent (the executor) in
July 2022 that the fourth respondent was no longer interested
in
purchasing the properties. The first respondent was instructed by him
to ensure that the deposit paid by the fourth respondent
in respect
of the purchase price of the farms, as well as the commission paid to
the auctioneer, were paid back to the fourth respondent.
[14]
This was confirmed by Mr Verster on 26 September 2022.
[15]
[18]
It is important to mention that on 1 September 2022 The first
respondent’s attorneys addressed
an email to the applicant’s
attorneys wherein they stated the following:
“
We
note from your urgent notice of motion, and more specifically in
prayer two thereof, that your client’s aim is to interdict
and
restrain my client, the first respondent, in transferring the said
properties to the fourth respondent.
You
have been made aware by the fourth respondent and by our offices that
the deposit and auctioneering fees have already been paid
back to the
fourth respondent. The transaction has entirely been cancelled.
In
an attempt to save legal costs, it is my advice that your client, the
applicant, must consider the following:
1.
To withdraw the urgent application;
2.
That the first respondent would
agree not to transfer the farms mentioned in the notice of motion in
prayers 2.1 and 2.2 to the
fourth respondent;
3.
That the applicant pays to the first
respondent legal costs up until the removal of the matter on attorney
and own client scale.
The
client’s urgent response would be highly appreciated.”
[19]
Whilst on this point, it behoves to mention that on 24 August 2022,
the applicant’s attorneys
addressed a letter to the first
respondent that they were instructed to take the Master on review for
having granted the endorsement
of the section 42(2) application. They
also requested his written undertaking and confirmation that the
transfer of the properties
in the name of the purchaser, would not be
proceeded with until such time that the court had made a decision on
the anticipated
review application.
[20]
The first respondent responded as follows on 24 August 2022:
“
1.
Your letter dated 24 August 2022 refers.
2.
The content of the letter referred above is noted, however I will not
be able
to accede to your request to stop the transfer of Farm S[...]
6[...], District B[...] and Remainder of the farm W[...] 3[...],
District B[...] because the auction was conducted above board and we
are waited for you for over a month to present to me the offers
you
claimed to have at the meeting with Mr Mokhobo at Master on 13th July
2022. I will not entertain any delay from your side or
your client.
4.
To be clear as an executor and the
conveyancer I will only stop the processes once when I ‘m
served with a court order/interdict
and will not on the basis of a
mere application.
We
trust you find the above in order”
[21]
It is evident that
t
he first respondent was fully aware
in July or early August already, that the transaction was cancelled
and both the executor and
the auctioneer had returned the fourth
respondent’s money as
he was informed by the fourth respondent or its director that the
sale was not proceeding.
It is
crystal clear that as of 24 August 2022, the first respondent was
fully aware that the said transaction was off the table
and, as a
natural consequence, no transfer of the immovable properties would
take place. It is incomprehensible that the first
respondent, being
fully aware that the transaction had been off the table for a
considerable period before this application was
launched, vigorously
opposed the it. Despite his attorneys’ correspondence of 1
September 2022, he continued to file opposing
papers and presented
argument in court.
Urgency
[22]
The first respondent lamented the extremely shortened timelines
proposed by the applicant
[16]
and “
the
aforesaid cause of action adopted by the applicant resulted in a
situation where I, despite taking all possible action to ensure
that
I oppose the application, was unable to do so prior to the hearing of
the matter on 2 September 2022.”
[17]
[23]
It is mind boggling that as at 30 August 2022, the first respondent,
despite having full knowledge
that the sale transaction was not being
proceeded with, communicated incorrect and inaccurate information to
the applicant’s
attorney which created the impression that the
transfer of the properties would proceed unless steps were taken to
halt the process.
The first respondent created the urgent
circumstances in which the applicant found himself. It is strange
that, having realised
that the fourth respondent was no longer
pursuing the sale transaction, the first respondent sent the email
dated 24 August 2022,
as he did. The applicant was justified in these
circumstances in following the steps that he did.
[24]
The first respondent alleged that the applicant resorted to an
extreme remedy by launching this
application. This step was not
justified as the applicant knew that the sale would not proceed.
[18]
Nowhere in the papers is it suggested that the first respondent
notified the applicant of the suspension or termination of the
sale
immediately before the application was filed. Neither was the Master
informed of such termination as the latter forwarded
an email on 23
August 2022 to the appellant’s attorneys advising them of her
inability to reconsider or cancel her endorsement
[19]
as her decision had already been communicated to the executor.
[25]
Section 42(2) of the Act provides that an executor who desires to
effect the transfer of any
property in pursuance of a sale, shall
lodge with the registration officer, in addition to any such other
deed or document, a certificate
by the Master that no objection to
such transfer exists. Section 47 provides that an executor shall sell
property in the manner
and subject to the conditions which the heirs
who have an interest therein, approve in writing. If the said heirs
are unable to
agree on the manner and conditions of sale, the
executor shall sell the property in such manner and subject to such
conditions
as the Master may approve.
[26]
An initial offer of R8 300 000.00 for the properties was
rejected by the applicant
and the fifth respondent. This led to the
first public auction which was held on 17 March 2022. Dissatisfaction
with the purchase
price at the auction led to the second auction on 4
May 2022. The applicant was dissatisfied with the purchase price
realised at
this auction. A meeting followed between the executor,
the second respondent and the applicant’s attorneys. The second
respondent
forwarded the email dated 15 July 2022 to the parties
stating, inter alia, the following:
“
Since
the administration of the estate and more especially the sale of the
farms cannot be hold hanging indefinitely you were afforded
an
opportunity until the 15
th
of August 2022 to find a potential buyer of the said farms which you
will duly inform the executor once that is successful even
not. It
was also agreed that should this fail the current sale the current
will proceed as is with
endorsement
of the application already lodged
.”
[27]
The applicant’s attorneys responded as follows on 21 July 2022:
“
I
confirm the contents of your letter but do not agree that I at any
stage on behalf of the client confirmed that the sale may proceed
on
the endorsement currently in front of you for
approval.
I made it very clear in the meeting that our instructions are not to
accept the fact that
the executor did
not act in accordance with section 47 and same will be dealt with
should the sale with regards to the auction that
was held proceed.
I
have not received any emails from the executor in this regard as was
discussed.”
[28]
The first respondent stated that he received the second respondent’s
endorsement approving
the manner and sale of the property.
[20]
The application for endorsement was dated 30 May 2022. It was granted
and bore the Master’s date stamp of 25 August 2022.
Clause 8 of
the endorsement recorded that the written consent by major heirs
and/or tutors of minors to the manner and conditions
of sale was
attached. A consideration of the exchange of correspondence between
the parties above, and the history of the outcome
of the public
auctions, make such an averment to be inaccurate and false.
Furthermore, despite the maintenance that an agreement
was reached on
13 July 2022 as per the second
respondent’s communication of 15 July 2022, the first
respondent submitted that a factual dispute existed between the
parties
as evidenced by their correspondence of the 15
th
and the 21
st
July 2022.
[29]
It is evident that when the endorsement was granted on 25 August
2022, the sale was not proceeding
and the Master was none the wiser.
The first respondent was therefore in no position to say “
I
am left with no alternative but to proceed with the sale, and for
this reason I have indicated to the applicant on 24 August 2022,
that
I am not in a position to stop the transfer of the properties. I
respectfully submit that I am not mandated to do so in the
circumstances.”
[21]
The
statement is false and devoid of all truth. The applicant is entitled
to a finding in her favour. The first respondent’s
defences are
dismissed as being without substances.
[30]
I have already found that the relief sought is now moot. I agree with
the applicant that the
merits of this application are only relevant
in the determination of the costs. The applicant, as the successful
party, is entitled
to the costs. The unprofessional manner in which
the first respondent handled this matter, justifies that he be
visited with a
costs order on a punitive scale.
[31]
I make the following order:
Order:
1.
The first respondent is
ordered to pay the applicant’s costs on an attorney
and client
scale.
MHLAMBI,
J
On
behalf of the plaintiff: Adv. R van der Merwe
Instructed
by:
Graham
Attorneys
14A
Torbet Street
Noordhoek
Bloemfontein
On
behalf of the respondent: Adv. J Ferreira
Instructed
by:
Callis Attorneys
12
Milner Road .
Waverley
Bloemfontein
[1]
Paragraph 21 of the Founding Affidavit.
[2]
Paragraph 9 of the First Respondent’s Heads of Argument.
[3]
Case
No:
3498/2021
High Court Free State, 14 October 2021.
[4]
2013 (5) SA 563 (NGHCP).
[5]
Case No: 1432/2021 High Court Free State, 21 May 2021.
[6]
Paragraphs 18 and 19 of the Judgment.
[7]
Supra.
[8]
The Commissioner of oats and the deponent. Para 26 of the judgment.
[9]
Paragraph 27 of the Judgment.
[10]
Supra.
[11]
Paragraph 25 Southey
supra.
Engineering
Requisites (Pty) Ltd v Adam 1977 (2) SA 175 (O).
[12]
Paragraph 3.1 to 3.5 of the First Respondent’s Answering
Affidavit.
[13]
Page 311 of the Indexed Papers.
[14]
Paragraph 32 and 33 of the Replying Affidavit.
[15]
See page 318 of the Indexed Papers.
[16]
Paragraph 4.1 of the Answering Affidavit.
[17]
Paragraph 4.3 of the Answering Affidavit.
[18]
Paragraph 48.2 of the Answering affidavit.
[19]
In terms of section 42(2) of the Administration of Estates Act.
[20]
Paragraphs 10.1 and 10.2 of the Answering Affidavit.
[21]
Paragraph 10.4 of the Answering Affidavit.