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[2021] ZAGPPHC 276
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Starbuck N.O and Another v Friebus and Others (38540/20) [2021] ZAGPPHC 276 (18 March 2021)
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: yes
18
March 2021
CASE NO: 38540/20
Hearing before Rabie J by way of
Zoom conference.
In
the matter between
:
C.A. STARBUCK
NO
First Applicant
M. ROUX NO
Second Applicant
and
H.W.
FRIEBUS
First Respondent
CHANGING TIDES
(PTY)LTD
Second Respondent
THE MASTER OF THE HIGH
COURT
Third Respondent
JUDGMENT
1.
In this application the applicants
applied for an order terminating the joint ownership held by the
first respondent in a certain
property in Lilianton, Extension 1; for
an order directing the first respondent to sign all the necessary
transfer documents to
effect transfer; and failing which the Sheriff
of this Court would be authorised and directed to sign such documents
on behalf
of the first respondent.
2.
The facts of this matter are briefly
the following. On 6 December 2018 the estate of Mr Friebus, the
husband of the first
respondent and hereinafter referred to as "the
insolvent", was accepted as insolvent and placed under
sequestration.
The applicants were appointed as provisional trustees
of the insolvent estate.
3.
The only asset in the estate of the
insolvent was the aforesaid immovable property. The first
respondent and the insolvent
were co-owners of the aforesaid
immovable property. The application for voluntary surrender was
brought on the premise that the
total value of the property could be
taken into consideration as the first respondent, as the co-owner of
the immovable property,
consented, under oath, that her half
ownership in the immovable property may be dealt with by the
appointed trustees. This was
confirmed by her in an affidavit which
formed part of the application for voluntary surrender of the
insolvent. Without renouncing
her half undivided share in the
property the insolvent could never have established a dividend to
concurrent creditors and would
not have been successful with the
application to surrender his estate.
4.
At the second meeting of creditors it
was decided that the trustees were authorised to dispose of the
immovable property by public
auction, private treaty or a public
tender in their absolute and sole discretion and that the mode of
sale shall be determined
by the trustees. The trustees consequently
decided to follow a boardroom bid-out process in which the first
respondent partook.
The first respondent submitted the highest bid on
the property and she was afforded the opportunity to submit proof of
a deposit
to secure the bid.
5.
The first respondent, however, failed
to secure proof of the deposit, notwithstanding due demand. The
trustees consequently offered
the property to the second highest
offer received at the public tender process. This was a Mr Malinga
and a Me Ntuli who then purchased
the property for the purchase
consideration of R450 000,00. The written sale agreement was
entered into on 4 July 2019.
6.
On 17 July 2019 the first respondent
sought confirmation of the fact that the property was sold, enquired
as to the selling price,
when she was supposed to relinquish half of
the bond, and whether she would be released from the bond. The
aforesaid were
responded to by the trustees on 18 July 2019 and she
was requested to sign the necessary documents.
7.
On 22 July 2019 the first respondent,
however, informed the trustees that she would not be signing the
special power of attorney
to effect the transfer as it would not be
in their interest to do so.
8.
On 5 August 2019 the trustees
received a counter offer from the first respondent's father-in-law.
The first respondent was informed
by the trustees that the property
had already been sold and was in the process of being transferred to
the purchasers. The
offer of her father-in-law could therefore
not be considered and could not prevent the transfer of the property
into the names
of the purchasers.
9.
In respect of the present application
the first respondent raised a point in limine of lis pendens. It
concerns a similar application
that was withdrawn by the applicants
without, however, tendering the costs occasioned thereby.
10.
The first respondent further
submitted that as co-owner of the property she has not agreed to the
sale nor signed any agreement
and/or documents consenting to the
sale. It seems that the first respondent is of the view that without
her consent or a court
order the applicants are unable to deal with
her undivided share in the property.
11.
Regarding the point in limine the
applicant might be entitled to her costs of the withdrawn
application, although I make no finding
in respect thereof, but there
is no pending dispute between the parties. Even if I were to be wrong
in this finding, the present
application should in my view not be
dismissed for that reason and the present application should proceed.
12.
The first respondent cannot claim her
half undivided share to the extent that it may not be sold without
her consent. The first
respondent had renounced her rights to the
property under oath in the voluntary surrender of her husband and
submitted that to
the authority of the trustees to be appointed in
the insolvent estate. Given the first respondent's consent
there is no room
to argue that she ever regained any rights in
respect of the property. On sequestration of the insolvent the
property, including
her one half share, vested in the Master and
thereafter in the Trustees. There was consequently nothing that
stood in the
way of the Trustees to put the property up for sale as
they did and to eventually sell the property to the aforesaid
purchasers.
13.
During the hearing before this court
the first respondent argued a different point namely that the
trustees did not have the authorisation
to enter into the deed of
sale. There is no merit in this argument. The deed of sale was
subject to a suspensive condition namely
that authority be granted at
the second meeting of creditors. Such authority was given on 5 July
2019 and only thereafter, on 9
July 2019, was the deed of sale signed
by the Trustees.
14.
It was further submitted on behalf of
the first respondent that her permission was required before the
Trustees could enter into
the deed of sale. There is no merit in this
submission either. Her position was clearly the same as that of
the insolvent
and she could not object to the sale. She tried to
exercise her right to purchase the property but her efforts were not
successful.
The Trustees were thereafter fully entitled to sell
the property to the aforesaid purchasers.
15.
Having regard to all the aforesaid
the applicants have carried out their duties in accordance with the
provisions of the Act, in
line with the authority given to them by
the second meeting of creditors, and in accordance with the consent
granted to them by
the first respondent. The applicants are
accordingly entitled to the relief sought in the present
application. As far as
costs are concerned there is no reason
why costs should not follow the event and consequently why the first
respondent should not
pay the applicants' cost of the application.
16.
In the result, the following order is
made:
1.
It is ordered that the joint ownership in the property described as
Erf 462 Lilianton Extension 1 Township, Registration Division IR,
Province of Gauteng, measuring 795 (seven hundred and ninety
five)
square metres, held by deed of transfer T 9935/2013, subject to the
conditions therein contained or referred to ("the
property"),
be terminated.
2.
The first respondent is ordered to sign any and all documentation
necessary to effect transfer within 20 days of service of this order
on the first respondent, failing which the Sheriff of this
Court is
authorised and directed to sign all the above mentioned documentation
on behalf of the first respondent.
3.
The net proceeds of the sale of the property shall be paid to the
applicants who shall, if the net proceeds exceed the amount
outstanding on the bond, administration costs and outstanding rates
and taxes, immediately settle the outstanding amount owed on the bond
to the second respondent by virtue of the mortgage bond held
over the
property under Bond No. B 33306/2015 and if the net proceeds are
equal to or less than the amount owing on the bonds,
pay such
proceeds, less outstanding rates and taxes, to the second respondent
in the reduction of its claim.
4.
The remainder (if any) of any net proceeds of the sale of the
property
after the payments stipulated in paragraph 3 above, shall be
paid to the applicants in their capacities as duly appointed trustees
of the insolvent estate; and
4.1
the profits (if any) of the sale of the property after the payments
stipulated
in paragraph 3 above be paid to the first respondent, and
to the applicants on behalf of the insolvent estate of Jacobus Alwyn
Friebus.
5.
The first respondent is ordered to pay the applicants' costs of the
application.
C.P. RABIE
JUDGE
OF THE HIGH COURT
18
March 2021
Attorney
for the Applicant:
Velile Tinto and Ass.
melandry@tintolaw.co.za
Attorney
for the First Respondent:
MW Nothnagel
Attorneys
martin@mwnlaw.co.za