About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 22
|
|
Van der Heever v Bierman (4955/2019) [2022] ZALMPPHC 22 (11 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4955/2019
In
the matter between:
JOHANNES
VAN DER HEEVER
PLAINTIFF
And
ELMARIE
HERMIE BIERMAN
DEFENDANT
JUDGEMENT
KGANYAGOJ
[1] On 10th August
2010 the plaintiff purchased the immovable property described as Farm
Kareebosch [….], Portion [….],
Molemole Local
Municipality, Registration Division LS, Limpopo (Kareebosch farm)
from Sunset Point Properties 212 cc (Sunset Point).
The conveyancer
who had attended to the transfer of Kareebosch farm into the names of
the plaintiff was the defendant.
[2] On 30th November
2010, whilst the plaintiff was awaiting the transfer of the Kareebos
farm into his names, he was visited by
one attorney Mr Bosman and
advocate Nel who enquired from the plaintiff whether he was aware of
the pending liquidation of Sunset
Point. Mr Bosman had initiated the
liquidation of Sunset Point, which application had been dismissed by
the magistrate on 13
th
July 2010. By then Mr Bosman
had lodged an appeal against the judgment of the magistrate.
[3] With that
information, the plaintiff consulted with his attorneys. The
defendant assured the plaintiff's attorneys that there
was no
liquidation application pending against Sunset Point. However, the
defendant went on to inform the plaintiff's attorneys
that the
liquidation application of Sunset Point had been dismissed on 13th
July 2010, and that an appeal has been lodged against
the dismissal
order. The defendant further informed the plaintiff's attorneys that
a date of appeal had not yet been determined,
that the appeal will be
vigorously opposed, and also that the solvency of Sunset Point had
been confirmed by the magistrate.
[4]
Based on that assurance from the defendant, the plaintiff proceeded
with the sale and Kareebosch farm was transferred into the
names of
the plaintiff on 11th February 2011. On 14th February 2011, an
urgent application was served on the plaintiff's attorneys,
in which
Mr Bosman acting in his capacity as executor of a deceased estate of
one Mr Jones, sought an urgent interdictory relief
interdicting and
restraining the defendant from proceeding with the transfer pending
the finalisation of the appeal. The plaintiff
did not oppose the
application since there was no relief that was sought against him.
[5]
The plaintiff did not participate in the appeal against the dismissal
of the liquidation order by the magistrate. The appeal
was duly heard
in the Gauteng Division, Pretoria, on 9th February 2012. The
full bench of the Gauteng Division upheld the
appeal, and set aside
the magistrate order, and substituted it with an order winding-up
Sunset Point. That resulted in the liquidators
of Sunset Point
instituting proceedings seeking an order that the sale of Sunset
Point to the plaintiff be declared void, as well
as relief ancillary
thereto.
[6]
The application by the liquidators was served on the plaintiff on
11th September 2013. The plaintiff opposed the liquidators'
application, and also filed a counterclaim seeking an order that the
court validate the sale. On 12th December 2016 the High Court
in
Gauteng Division granted orders in favour of the liquidators. The
plaintiff appealed against the judgment of the Gauteng Division
to
the Supreme Court of Appeal (SCA). The SCA dismissed the plaintiffs
appeal with costs on 20th March 2018.
[7] During April 2019 the
plaintiff reached an agreement with the liquidators of Sunset point
to remain the registered owner of
Kareebosch farm against payment of
the sum of R1 491 915.94. On 8th August 2019 the plaintiff instituted
an action against the
defendant for the recovery of the damages he
might have suffered as result of the sale of Sunset Point been
declared void. The
defendant has defended the plaintiffs action and
has also raised a special plea of prescription.
[8] At the hearing of the
matter the parties agreed to dispose the plea of prescription first,
and also to dispose it by way of
a stated case without leading any
oral evidence. They have also agreed during the pre-trial that the
onus relating to prescription
rest upon the defendant. The joint
chronology of events agreed upon by the parties were: (i) the record
of appeal presented to
the SCA in the matter between Van den Heever v
Louis Marius Taljaard N.O. and Others, subject to the qualification
that defendant
only admits the authenticity of same to the extent
that the documents forming part thereof are what they purport to be,
but without
admitting the contents of any documents as necessarily
being true and correct; (ii) the Court is asked to determine,
whether, in
view of the chronology of events, and the evidence as
reflected in the record presented to the SCA, with inclusion of the
judgments
by Judge AC Sasson in the matter in the Gauteng Division,
Pretoria, case number 54704/2013 and of LE Leach JA in the SCA, the
claim
of the plaintiff has prescribed; and (iii) the parties further
agreed that the facts referred to in the chronology of events be
accepted as correct and admitted.
[9]
The defendant's main contention is that by not later than November
2010, alternatively by 18 January 2011, alternatively by
14 February
2011, alternatively by 9 February 2012, alternatively by September
2013, alternatively by October 2013, further alternatively
by
November2014, plaintiff had obtained knowledge, alternatively
reasonably ought to have obtained knowledge, of all the material
facts necessary to sustain and complete the cause of action
instituted against the defendant. That the debts forming part of the
plaintiff's claims had become due on the abovementioned dates, in
consequence whereof prescription of the plaintiffs aforesaid
claims
had started to run by no later than on/during any of the aforesaid
dates/periods. Therefore, according to the defendant,
the plaintiffs
claims had become prescribed prior to the plaintiff having served his
combined summons on defendant on 8th August
2019, the aforesaid date
being more than three years since prescription had started to run.
[10]
The plaintiffs main contention is that similar as in the case of an
exception, all allegations relating to the merits of the
matter in
the particulars of claim should be deemed as correct for purposes of
deciding a special plea. That prescription cannot
run against a
creditor before his cause of action is fully accrued, that is before
he is able to pursue his claim. That plaintiff
simply had no claim
(cause of action) against the defendant before the invalidation of
the sale agreement was ordered by the Gauteng
Division of the High
Court on 12th December 2016. That payment by plaintiff of the amount
of R1 491 915-95 to retain ownership
of Kareebosch, and payment of
the liquidators' costs of R1 616 828-88 all occurred after 20th March
2018 when the appeal against
the judgment of the order of Gauteng
Division, was dismissed with costs. That the harm and damages
suffered by plaintiff only realised
after 20th March 2018. It is
therefore, the plaintiff's contention that the period of 3 years had
not lapsed when on 8th August
2019 the combined summons was served
upon defendant.
[11] This court is called
upon to determine whether the plaintiffs claim has prescribed as
pleaded by the defendant in her special
plea. In this case the
applicable period of prescription is three years as provided for in
section 11(d) of the
Prescription
Act
[1]
(Act).
Section 12 of the Act provides as follows:
"(1)Subject
to the provisions of subsection (2), (3), and (4), prescription shall
commence to run as soon as the debt is due.
(2)
If the debtor wilfully prevents the creditor from coming to know of
the existence of the debt, prescription shall not commence
to run
until the creditor becomes aware of the existence of the debt.
(3)
A debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.
(4)...
"
[12]
In the case
at hand, the identity of the debtor is not in dispute. The defendant
had given several dates which she submits as the
dates which the
plaintiff is deemed have had knowledge of the facts from which the
debt arose. In
Minister
of Finance and Others v Gore N0
[2]
Cameron
JA et Brand JA said:
"This
Court has, in a series of decisions, emphasised that time begins to
run against a creditor when it has the minimum facts
that are
necessary to institute action. The running of prescription is not
postponed until a creditor becomes aware of the full
extent of its
legal rights, nor until the creditor has evidence that would enable
it to prove a case comfortably."
[13] The plaintiff bought
Kareebosch farm from Sunset Point on 17th August 2010, and it was
transferred into the names of the plaintiff
by the defendant on 11th
February 2011. At the time the plaintiff bought Kareebosch farm,
there was a pending liquidation application
against Sunset Point
which factor the plaintiff was not aware of. Even though the
liquidation application was dismissed by the
magistrate on 13th July
2010, the attorneys of the creditors of Sunset Point had appealed
that order. The liquidation application
has been lodged with the
magistrate court on 7th April 2010. The appeal by the creditors of
Sunset Point was upheld by the North
Gauteng High Court on 9th
February 2012, and granted an order for the winding-up of Sunset
Point. The effect of the order of 9th
February 2012 was that the
winding-up of Sunset Point was deemed to have commenced on 7th April
2010. Therefore, Kareebosch farm
was transferred to the plaintiff
while Sunset Point was deemed to have been in the process of
winding-up.
[14]
Even though at the time of the conclusion of the sale agreement, the
plaintiff was unaware that there was a pending liquidation
application against Sunset Point, during the period November 2010 and
February 2011 before Kareebosch farm was transferred into
the names
of the plaintiff, it was brought to the attention of the plaintiff
personally by Mr Bosman and advocate Nel representing
the creditors
of the pending liquidation application. Even though at that stage the
application has been dismissed, there was a
pending appeal. The
plaintiff was assured by the defendant that there was no liquidation
application pending as that has been dismissed
on 13th July 2010.
However, in the same breath, the defendant brought it to the
attention of the plaintiff that there was a pending
appeal which she
will vigorously oppose.
[15] At the time it was
brought to the attention of the plaintiff that there was a pending
appeal against the order of the magistrate,
Kareebosch farm has not
yet been transferred into the names of the plaintiff, and Sunset
Point has not yet received the purchase
price. The plaintiff seeked
advise from the defendant regarding the pending liquidation of Sunset
and when informed that there
was no pending liquidation, the
plaintiff decided to proceed with the sale. By seeking advice from
the defendant, the plaintiff
was aware of the consequences of
proceeding with the sale with a company which was deemed to be in the
process of winding-up. At
that stage the plaintiff knowing the
consequences of proceeding with the sale had the opportunity of
resiling from the agreement,
or take a chance and proceed with it
with the hope that the appeal will fail. The plaintiff chose the
latter.
[16]
With the assurance that the plaintiff received from the defendant
that there was no pending liquidation application, that would
have
made the plaintiff to belief that all was well, especially that it
was not expected of the defendant who is an officer of
the court to
have misled her fellow colleagues. That would have put the plaintiff
at peace to proceed with the sale. The plaintiff
was not a party to
the appeal process and did not take part in the appeal process. There
is no evidence that the plaintiff was
updated of the progress of the
appeal.
[17] After the order of
the magistrate was successfully appealed, on 3rd September 2013 the
joint liquidators of Sunset Point launched
an application for a
declaratory order that it be declared that the disposition by Sunset
Point of Kareebosch farm be declared
to be void. The plaintiff was a
party to the proceedings as the first respondent and was duly served
with papers. On 25th October
2013 the plaintiff deposed his answering
affidavit to the joint liquidators' application. The plaintiff in his
answering affidavit
has also included a counterclaim in which he was
seeking the validation of the agreement of sale of Kareebosch farm.
The answering
affidavit together with the counterclaim was duly
served on defendant on 28th October 2013.
[18] On receipt of the
application from the joint liquidators by the plaintiff during
October 2013, it was now clear to the plaintiff
that there was a
problem with the sale agreement he had entered into with Sunset
Point. If there was still any uncertainty with
regard to the sale,
that has been cleared, hence the plaintiff counterclaim of seeking to
validate the sale. That shows that the
plaintiff was fully aware of
the consequences to follow should he not follow that route of trying
to validate the sale agreement.
For the plaintiff to file such a
counterclaim shows that he had minimum facts (if not full), which
were necessary for him to institute
an action against the defendant.
However, he chose the route of opposing the joint liquidators'
application and also of bringing
a counterclaim.
[19] On 12th December
2016 the High Court in Gauteng Division, Pretoria declared the sale
by Sunset Point to the plaintiff void,
and authorised the liquidators
of Sunset Point to take all steps necessary to procure the
re-transfer of Kareebosch farm from the
plaintiff. The plaintiff
appealed the judgment and order of the Gauteng Division Pretoria, to
the SCA, which appeal was dismissed
on 20th March 2018 with costs.
That prompted the plaintiff to enter into negotiations with the joint
liquidators in order for him
to retain ownership of Kareebosch farm.
That resulted in the joint liquidators and the plaintiff agreeing on
payment of an amount
of R1 491 915-95 together with liquidators'
costs of R1 616 828-88 by the plaintiff.
[20] On 2nd August 2019
the plaintiff instituted action against the defendant for the alleged
damages he had suffered as a result
of the defendant's alleged breach
of her legal duty and obligations towards the plaintiff. The
plaintiffs combined summons was
served on the defendant on 8th August
2019. It is the plaintiff's contention that his claim did not arise,
and in particular did
not become due before 12thDecember 2016, and
therefore the prescription period of three years had not elapsed when
on 8th August
2019 the combined summons was served upon the
defendant. The plaintiff submits that the upholding of the appeal
against the dismissal
of the application for liquidation by the
magistrate on 9
th
February 2012 did not cause damages
to him, and that it was only on 12th December 2016 when the High
Court in Pretoria ordered
re-transfer of Kareebosch farm, that the
plaintiff was deprived ownership, and it became clear that payment of
the purchase price
for Kareebosch farm was without any value. The
plaintiff further submits that clarity relating to the voidness of
the agreement,
and the duty to re-transfer Kareebosch farm, was only
obtained on 12th December 2016, when judgment was granted against the
plaintiff.
[21]
In Fluxmans
Inc v Levenson
[3]
Zondi JA said:
"Section
12(3) of the Prescription Act requires knowledge only of the material
facts from which the prescriptive period begins
to run - it does not
require knowledge of the legal conclusion (that the facts constitute
invalidity) (Claasen v Bester
2012 (2) SA 404
(SCA) ([2011) ZASCA
197))."
[22]
In my view, the application of the joint liquidators that was served
on the plaintiff during October 2013 has given the plaintiff
minimum
facts that the purchase price for Kareebosch farm was without value.
Those minimum facts have thus enabled the plaintiff
to be in position
to draft a counterclaim in order to validate the sale agreement. The
same facts which enabled the plaintiff to
draft a counterclaim was
also necessary to institute an action against defendant, should the
plaintiff wished to pursue a claim
of the purchase price paid to
Sunset Point.
[23] The plaintiff's main
claim in his particulars of claim is payment of R1 491 915.96 and R1
616 828.88 which were payments made
after he had exhausted his legal
remedies. In the alternative to the main claim of R1 491 915.96 he is
claiming R3 778 561.46.
The alternative claim is the total amount of
the purchase price and other amounts paid to defendant as the
transferring attorneys.
After the plaintiff has exhausted his legal
remedies, during April 2019 in an attempt to mitigate his damages, he
entered into
a partly written oral agreement with the liquidators and
creditors of Sunset Point, which resulted in the parties agreeing
that
the plaintiff would remain the registered owner of Kareebosch
farm against payment of R1 491 915.94.
[24] The claim of R1 491
915.94 emanate from the agreement which the plaintiff has reached
with the liquidators and creditors of
Sunset Point during April 2019
and which has created a new cause of action. In my view, the claim
that has prescribed is the alternative
claim of R3 778 561.46 as the
plaintiff had knowledge of material facts which were necessary for
him to institute action against
the defendant during October 2013.
The agreement of April 2019 did not revive the prescribed claim.
Payment of R1 616 828-88 was
for liquidators' costs which became due
and payable after the plaintiff has exhausted his legal remedies.
Therefore, the plaintiff's
claim of payment of R1 491 915-94 and R1
616 828-88 have not yet prescribed on 81h August 2019 when the
combined summons was served
upon defendant.
[25] Turning to costs,
the general rule is that costs follow the suit, and that the issue of
awarding of costs is within the discretion
of the trial judge. The
defendant was partially successful with her special plea of
prescription to the plaintiff's alternative
claim. It will therefore
be fair if each party pays his/her own costs
[25]
In the result, I make the following order:
25.1
The defendant's plea of prescription is upheld on the alternative
claim of R3 778 561-46, and
dismissed on the main claims of the
plaintiff.
25.2
Each party to pay his/her own costs.
KGANYAGOJ
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
: Adv JG Bergenthuin
SC
Instructed
by
:Bernhard van der Hooven attorneys
Counsel
for the defendant
: Adv JC Erasmus
Instructed
by
: Elmarie Bierman attorneys
Date
heard :
19
th
April 2022
Electronically
circulated on :
11
th
May 2022
[1]
68 of
1969
[2]
2007 (1) SA 111
(SCA) at 1191-120A
[3]
2017 (2) SA 520
(SCA) at 537A