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[2022] ZANCHC 1
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Potgieter v Village S.F.W and Others (2651/2021) [2022] ZANCHC 1 (18 January 2022)
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
(NORTHERN
CAPE .DIVISION, KIMBERLEY)
Case
Number: 2651/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
POTGIETER
H.H.
Applicant
and
VILLAGE
S.F.W.
1st Respondent
REGISTRAR
OF DEEDS KIMBERLEY
2nd Respondent
VISSER
H
3rd Respondent
Coram:
Lever J
JUDGMENT
Lever
J
1.
This matter was argued before me on Friday 14 January 2022 as an
opposed urgent application. I reserved
judgment in the matter until
Tuesday 18 January 2022.
2.
The applicant seeks an urgent interdict to restrain the first and
second respondents from passing transfer
of the property situate at
No: [....] C[....] Road, Belgravia, Kimberley to the third
respondent. This interdict is to operate
pending an action by the
applicant to claim transfer of the said property and that such action
is to be instituted within 90 days
of the granting of the order in
which the said interdict is issued.
3.
The first respondent is the current registered owner of the said
property. The first respondent opposes
this urgent application. The
second respondent, being the Registrar of Deeds for the appropriate
Deeds Registry, does not oppose
this application.
4.
The third respondent is the prospective purchaser in respect of whom
the applicant seeks to interdict
the property being transferred to.
The third respondent has filed a notice indicating that she will
abide the decision of this
court.
5.
The
interdict sought in this matter, pending the outcome of an action as
contemplated in the Notice of Motion in this matter is
for
interlocutory relief. The requirements for such an interdict have
been set out by Corbett J (as he then was) in the matter
of
L.F.
BOSHOFF
INVESTMENTS
V
CAPE
TOWN
MUNICIPALITY
[1]
as
follows:
"(a)
that the right which is the subject-matter of the main action and
which he seeks to protect by means
of interim relief is clear or, if
not clear, is
prima facie
established, though open to some
doubt;
(b)
that, if the right is only
prima facie
established,
there is a well grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted
and he ultimately
succeeds in establishing his right;
(c)
that the balance of convenience favours the granting of the of
interim relief; and
(d)
that
the applicant has no other satisfactory
remedy."
[2]
6.
This statement of the rule is often summarised and shortened in
today's practice. I have stated the rule
in full because part (a) is
particularly relevant to the present case. The present practice is to
state that a
'prima facie'
right is required. In most cases it
is sufficient to deal with only whether a
'prima facie'
right
has been established. However, the applicant's Counsel, Mr Van Tonder
is asking me to find that a
'prima facie'
right has been
established by the applicant and that certain aspects of applicant's
case should be decided by the trial court. In
other words, he is
asking me to find a 'prima facie' right though open to some doubt.
7.
There has been an ongoing history of litigation between the applicant
and the first respondent. For the
purposes of the present urgent
application, it is not necessary for me to deal with the history. It
suffices to state that the
property in respect of which an interdict
was sought was previously attached to found alternatively confirm
jurisdiction in a claim
the applicant had/has against the first
respondent. This matter was then settled with an agreement to market
and sell the said
property.
Inter alia
this agreement set out
the basis upon which the said property would be valued, marketed and
ultimately sold. Unfortunately, there
were ongoing disputes in this
process. Briefly, the property was overvalued for the current market.
8.
Ultimately, a written proposal was made by the first respondent's
attorney in a letter dated 17 August
2021 addressed to the
applicant's attorney. The substance of the said letter reads as
follows:
"1.
…
2.
In an attempt to resolve any outstanding issues between the
parties in relation to the property known as [....] C[....] Road, our
client is prepared to sell the property to your client for an amount
of R3 500 000.00 subject to the following;
2.1
Your client will need to provide our client with the necessary
guarantees within 21 days of the signing of the Deed of Sale;
2.2
Your client will be responsible for any transfer costs, fees
and transfer duties relating to the transaction;
2.3
Should your client not be able to provide the necessary
guarantees as stated above, the parties agree that the property can
be marketed
for a flat rate of R4 000 000.00 and your client will
give her full co-operation in this regard;
2.4
If your client delivers the guarantees for the purchase price
of R3 500 000.00, our client renounces any further claims that he may
have in terms of the Court Order, save for the arrear rates and taxes
which will be for your clients account once and if transfer
takes
place;
2.5
Should your client however fail to provide the necessary
guarantees and the property is then marketed in terms of paragraph
2.4
above, then our clients claim for any shortfall in terms of the
Court Order will remain.
3
We are of the opinion that the above is a very reasonable
offer and trust that your client will agree. If your client is
amenable
to purchase the property we kindly request that you provide
us with the detail of the purchaser, should same be a Company or a
Trust.
4
Kindly also take note that this proposal does not derogate
from the terms of the court order and does same (sic) remain in place
pending any final resolution.
5
We
look forward to your response at your earliest convenience."
[3]
9.
To this proposal the applicant's attorney responded in writing in a
letter dated 14 September 2021. The
substance of this reply reads as
follows:
"The
above matter and your letter of the 17 August 2021 refers. Our client
is prepared to accept your client's proposal.
As
discussed the Meratrix Trust (meant to read Mercatrix Trust) will be
purchasing the property.
We
have submitted the Trust documents to the Master and will request the
Master to issue the letter of authority as a matter of
urgency.
The
parties can then attend to the finalisation and signing of the
agreement.
The
guarantees for the R3 500 000 are already in place.
We
confirm that our firm has already received instructions for the
registering
of the
Bond from
Standard
Bank."
[4]
10.
Then on the 23 September 2021 the first respondent's attorney by way
of a letter bearing that date purported
to withdraw the offer set out
in the letter of the 17 August which is quoted above.
11.
Before Discussing the submissions made on behalf of the applicant and
the first respondent's response
thereto, I need to point out that
there are certain statutory requirements that need to be complied
with when a transaction deals
with the sale of immovable property.
These requirements are set out in s2(1) of the ALIENATION OF LAND ACT
No: 68 OF 1981 (the
Act). The said section reads as follows:
"2(1) No alienation
of land after the commencement of this section shall, subject to the
provisions of section 28, be of any
force and
effect
unless it
is contained in a deed of alienation signed by the parties thereto or
by their agents acting on their written authority."
12.
As can be seen from
section 2(1)
of the
Alienation of Land Act,
quoted
above when acting through an agent, as both applicant and
first respondent were acting through their respective attorneys,
there
would have to be written authority for both attorneys to bind
their respective principals to a valid agreement to sell land.
13.
In debating this issue with Mr Van Tonder he submitted that this was
one of those issues to be determined
by the trial court in the
contemplated action should I grant the interdict as requested. In my
view, this can never be correct.
The applicant must at least allege
in her founding affidavit that her attorney had the requisite written
authority. Also, that
to her knowledge the first respondent's
attorney also had the requisite authority alternatively had
represented that such authority
existed. At the very least applicant
must have laid a basis for asserting that such authority existed that
could be determined
at the contemplated trial. The applicant has
failed to make such assertion in her founding affidavit.
14.
In the absence of such assertion there is no basis to hold that a
valid and binding sale in respect
of the relevant immovable property
has been established even on a
prima facie
basis. In these
circumstances, the applicant has not complied with the first
requirement for an interim interdict. On this ground
alone, the
application stands to be dismissed.
15.
However, in case I am wrong in this conclusion I will examine whether
the letters quoted above indicate
an intention to contract on the
part of both parties to their respective letters as they stand.
16.
Mr Van Tonder, on behalf of the applicant, submits that such letters
show the required intention and
constitute a valid, binding and
lawful agreement of sale in respect of the relevant immovable
property. Mr Van Tonder further submits
that the respective letters
cover all aspects of the contemplated agreement. He submitted that
there was no need for a further
written Deed of Alienation. That
taken together the letters concerned complied with the requisite
statutory formalities. Mr Van
Tonder further submitted that it wasn't
a condition precedent of the first respondent's offer that there be a
further written deed
of alienation.
17.
Mr Van Niekerk SC, who appeared for the first respondent, submitted
that in expressing their intention
both the first respondent and the
applicant in their respective letters used the future tense. The
first respondent's attorney
states "...our client is prepared to
sell the property to your client...". The applicant's attorney
replies, "Our
client is prepared to accept your client's
proposal." He submitted that this does not show that there was
the necessary intention
to contract in the letters exchanged, without
more.
18.
Reading both letters together I am forced to conclude that neither
party had the intention to contract
merely by way of their respective
letters as quoted above. I am fortified in this conclusion by the
fact that the applicant's attorney
wrote the relevant portion of his
letter in the passive voice "Our client is prepared to accept
your client's proposal".
19.
Further, both applicant and first respondent contemplated the signing
of a separate deed of sale in
their respective letters. Mr Van Tonder
misses the point when he submits that this was not a condition
precedent to the first respondent's
offer in the letter written on
his behalf. The correct question is; what does this show in relation
to the first respondent's intention
at the relevant time.
20.
Similarly, the letter written on behalf of the applicant also
contemplates finalisation and signing
of an agreement subsequent to
the said letter. Even if this was not a condition precedent it shows
that at the time the respective
letters were written on behalf of the
first respondent and the applicant, even though the letters might
encompass all the terms
the first respondent and applicant
contemplated applicant did not intend to contract on the basis of
mere acceptance of his offer
alone without the formality of a deed of
sale. In these circumstances it cannot be said that applicant
intended to be bound upon
mere acceptance of his offer, without more.
21.
First respondent clearly contemplated that a deed of sale should be
signed for whatever reason. The
same is true of the applicant. In
fact, the applicant states the requirement for finalising the deed of
sale in more direct terms
than the first respondent. In the sense
that both parties foresaw a deed of sale being finalised and signed
before a binding agreement
came into existence, it is in that sense a
condition precedent.
22.
On this basis the applicant has not shown a
prima facie
right
though open to some doubt. There is simply too much doubt to be
accepted as a
prima
facie
right.
23.
In normal circumstances, if an attorney sets out in writing that he
is in possession of guarantees I
would certainly accept it at face
value. However, in this case in her replying affidavit the applicant
annexes a quotation for
a loan in her sister's name. The document
annexed to the replying affidavit does not even show that the loan
has been accepted
by applicant's sister. On the basis of this
document relating to the loan as far as the bank is aware the sister
is purchasing
the relevant property. There is nothing to indicate
that the bank is aware that the relevant property will be registered
in the
name of the trust or that the applicant accepted the offer in
her personal capacity, as contended by Mr Van Tonder. This has
muddied
the waters as far as the guarantees are concerned. Mr Van
Niekerk raised questions as to what this might mean in regard to the
purported guarantees being in place. In the circumstances I think Mr
Van Niekerk's concerns are well grounded.
24.
The next issue raised by Mr Van Niekerk relates to who would be the
buyer and what the effect would
be on the purported agreement of the
trust being nominated as the purchaser. Mr Van Niekerk submitted that
the trust being the
nominated purchaser would be problematic in
circumstances where the trust is not yet registered. No trustees have
been appointed
by the Master as the letters of authority have not
been issued to the trustees. Mr Van Niekerk submitted in these
circumstances,
that the trust could not be the purchaser of the
property without the intervention of the Master, which has not been
alleged nor
established by the applicant.
25.
In response
Mr Van Tonder submitted that the applicant in her personal capacity
was the purchaser and she was merely nominating
an entity to be her
nominee in the transaction as the first respondent invited her to do.
That there was a cession of her rights
to the trust. In support
of
this
contention
Mr
Van
Tonder
referred
to
the
case
of
NOORMOHAMED
v VISSER & ANOTHER
[5]
That
the wording of the letter of acceptance is an issue to be determined
at the contemplated trial.
26.
After considering the submissions made by Mr Van Niekerk and Mr Van
Tonder and after reading the NOORMOHAMED
case although there is doubt
and the wording of the letter written on behalf of the applicant runs
counter to this, by virtue of
the invitation by the first respondent
to make use of a nominee I am prepared to accept that the applicant
intended to be the purchaser
and make use of a nominee to whom she
intended to assign her rights. However, in the circumstances it does
not assist applicant.
27.
Applicant has not alleged compliance with the statutory formalities
in regard to her and first respondents
agents. This on its own is
enough to dismiss the present application.
28.
Further, in the event that I am wrong on the above conclusion, on the
wording of the respective letters
I do not believe that either
applicant or first respondent intended to act and contract on the
strength of their respective letters
without more. To this extent,
the applicant has not established a
prima
facie
right though open to some doubt.
29.
In these circumstances the application stands to be dismissed.
30.
In relation to costs the first respondent sought costs on an attorney
and client scale. In my view the
application is ill founded but I do
not believe that a sufficient basis has been laid for me to exercise
my discretion and make
a punitive costs order. In the circumstances I
believe costs should follow the event.
In
the circumstances the following order is made:
1)
The application is dismissed.
2)
The applicant is to pay the costs of this application on the
ordinary party and party scale.
Lawrence
Lever
Judge
Northern Cape Provincial
Division,
Kimberley
Representation:
Applicant:
Mr A.G. Van Tonder oio Haarhoffs Inc
Respondent:
Mr J.G. Van Niekerk SC oio Duncan & Rothman
Date
of hearing 14 January 2022.
Date
of judgment 18 January 2022.
[1]
1969 (2) SA 256
[CPD].
[2]
L.F. Boshoff case above at 267B-D.
[3]
Founding affidavit indexed bundle pp 40-41.
[4]
Founding affidavit indexed bundle p 42.
[5]
2006 (1) SA 290
(SCA)