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[2021] ZANCHC 38
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National Director of Public Prosecutions v Moore and Others (628/2020) [2021] ZANCHC 38 (30 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 628/2020
Heard
on: 21/05/2021
Delivered
on: 30/07/2021
Reportable
Circulate
to Judges
Not
to Circulate to Magistrates
Not
to Circulate to Regional Magistrates
In
the matter between:
THE
NATIONAL
DIRECTOR
OF
PUBLIC
PROSECUTIONS
Applicant
and
HENRIETTA
CORNELIA MOORE
First Respondent
CHRISTOPHER
LEY MOORE
Second Respondent
ROBERT
JORGE
MENDONCA
VELOSA
Third Respondent
THE
CM PROPERTY
TRUST
Fourth Respondent
IPROTECT
TRUSTEES (PTY) LTD
Fifth Respondent
JUDGMENT
MAMOSEBOJ
[1]
The National Director of Public Prosecutions (NDPP) seeks an order
for forfeiture
of two properties, Erf 1434 and Erf 1435 known as
number 14
and
16 Schoeman Street, Barkly West, respectively, (the Barkly West
properties) in terms of s 48(1) read with s 50(1)(b) of the
Prevention of Organised Crime Act
[1]
(POCA).
[2]
The NDPP contends
that the properties are proceeds of unlawful activities referred to
in Schedule 1 of POCA, namely, money laundering.
[2]
Some preliminary issues
need to be dealt with first. Mr Pienaar, for the respondents,
correctly, in my view, did not press on with
the argument that the
NDPP did not comply with s 48(3) of POCA
[3]
in that the application for forfeiture was served on the respondents'
attorneys of record as opposed to service on the respondents.
The
argument would not, in my view, have been fatal to the application. I
am satisfied that service on the respondents' attorneys
of record was
proper. The second preliminary issue relates to the admissibility of
hearsay evidence. Mr Pienaar argued that the
entire application for
preservation and forfeiture of the property is based on the affidavit
made by Mr Michael Bareng Raadt to
the police in the criminal trial.
He argued that Raadt did not depose to any confirmatory affidavit,
specifically in these proceedings.
As a result, he contended, this
Court must reject the statement as inadmissible hearsay evidence. In
Giesecke
& Devrient Southern Africa (Pty) Ltd
v
Minister of Safety and
Security
[4]
it was said:
"[28}
...As
explained
in
S
v
Ndhlovu
[2002
(6)
SA 305
(SCA);
(2002 (2) SACR 325
;
[2002} 3 All SA 760}
para 15,
the very purpose for the introduction of s 3(1)(c) was to 'supersede
the excessive rigidity and inflexibility
-
and occasional
absurdity
-
of the common-law position' by creating another
avenue for the admission of hearsay evidence which turns on what the
interests of
justice require. Moreover, I find support for this
understanding in the approach adopted by our courts, at least by
implication
if not yet explicitly, that we are dealing with
alternative avenues of admissibility (see eg Skilya Property
Investments (Pty)
Ltd v Lloyds of London Underwriting Syndicate Nos
960, 48, 1183 and 2183
2002 (3) SA 765
(T} at BOOE-
G
and
8041-J)"
[3]
I am of the view that the statement by Raadt
be admitted in evidence
in the interest of justice. Ms Moore does not deny receiving payments
from Mr Raadt and utilising those
amounts to procure the Barkly West
properties.
[4]
The issue that stands for determination is
whether the Barkly West
properties should be forfeited to the State in terms of Chapter 6 of
POCA, which requires a determination
whether they are proceeds of
unlawful activities. The preservation order was granted on 20 March
2020 unopposed.
[5]
The first respondent, Ms Henrietta Cornelia
Moore, was a life partner
of Mr Abraham Johannes Diedericks (the deceased) who passed away
testate on 25 November 2008. The couple
were joint owners of a
property situated at 24 Apian Way, Royldene, Kimberley (the Apian
property). Of relevance in the Will are
the following clauses:
"1.3 Aan my
vriendin, Henrietta Cornelia Moore, die volgende:
1.3.1
My aandeel in die woonhuis gelee te Appianweg 24, Raydene,
Kimberley.
1.3.2
My aandeel
in die woonhuis
gelee te Merlin
Close
7,
Camelot.
Die bemakings kragtens
klousules 1.3.1 en 1.3.2
is
onderhewig aan die voorwaarde dat my gemelde vriendin, 'n bemaaksom
aan my boedel sal betaal gelykstaande aan die geswore waardasie
van
my aandeel in die gemelde woonhuise, soos bepaal vir
boedelberederringsdoeleindes.
Indien
my gemelde vriendin
nie
die
voorwaarde soos
hierbo
uiteengesit aanvaar
nie,
sal
die bemakings kragtens
klousules 1.3.1 en 1.3.2 aan haar verval en bemaak ek die
gemelde bates aan my
kinders, Jacob Le Roux Diedericks (gebore 18/10/1984)
en Christelle
Diedericks (gebore 04/04/1979) onderhewig aan die lewenslange
vruggebruik
van my vriendin,
Henrietta
Cornelia
Moore.
[5]
(emphasis
added)
[6]
On 23 February 2009 the Master of the High
Court, Kimberley, jointly
appointed Ms Moore and Sanlam Trust Limited as executors of the
deceased's estate under Letters of Executorship
497/09. The office of
the Master received complaints lodged against Ms Moore pertaining to
the estate. She was afforded opportunity
to furnish reasons to the
Master why she should not be removed as executrix, but failed to do
so. Consequently, on 14 April 2009
she was removed as executrix in
terms of
s 54(1)(b)(v)
of the
Administration of Estates Act 66 of
1965
as amended and Sanlam Trust Limited, represented by Ms Suzette
Malherbe, remained the sole executor of the deceased's estate.
[7]
On 13 January 2014, Ms
Moore offered to sell the Apian property to a certain Mr Michael
Bareng Raadt for R4.7 million. After viewing
the property on the same
day, Raadt negotiated a reduced purchase price with her to R3.9
million and paid a deposit of R20,000.00
directly into Ms Moore's
bank account. On 27 January 2014, Ms Moore and Mr Raadt concluded
two agreements,
a rouwkoop sale agreement
"CM 16"
[6]
and a residential
property
agreement "CM 17"
for
the sale of the Apian
property.
[8]
Raadt and his family took occupation of the
property on 01 March 2014
and paid a monthly occupational rent of R20,000.00 with effect from
20 January 2014. He had, in addition,
purchased pre-paid electricity
coupons for R10,000.00 from Ms Moore for use at the Apian property.
From March to December 2014
Raadt paid a total amount of
R1,478,650.00 towards the purchase price of the property. This amount
also included the R360,000.00
payable towards the occupational rent.
Ms Moore utilised these monies to purchase properties in Barkly West.
[9]
Raadt attended the Municipal offices in November
2014 to purchase
electricity coupons and was informed that the account on the property
had been blocked for a period of five years
and that Ms Moore is not
the owner of the said Apian property. He confronted her demanding the
refund of the payments made towards
the purchase price. She explained
that the money was used to purchase the Barkly West properties. Ms
Moore further informed Raadt
that there were problems in the
finalisation of the estate, however he could still pay a further R1
million towards the purchase
price of the Apian property.
[10]
Raadt did not make further payments towards the property and looked
for the deceased's children who were unaware of the sale of the
property. He was advised to contact the estate administrators who
later referred him to Mr Louis Lategan, the estate attorney. Lategan
advised Raadt to make further payments into the estate but
none were
made. The NDPP argued that Raadt's decision to discontinue making the
payments was not, as contended by respondents,
that he was
unsuccessful to obtain finance to settle the balance, but was due to
the realisation that Ms Moore was not the lawful
owner of the
property and was therefore not entitled to sell it. His failure to
make further payments towards occupational rent
resulted in an action
being instituted against him in the Magistrates Court, Kimberley on
10 February 2016 for arrear payment and
cancellation of the rouwkoop
sale agreement. The Magistrate granted default judgment against him
on 26 April 2016 in favour of
Ms Moore. He applied for rescission of
the said judgment but the application was dismissed on 27 June 2016.
An application for
his eviction from the Apian property was filed by
Ms Moore on 1 September 2016 and he was evicted on 25 April 2017. It
is common
cause that the two Barkly West properties were bought using
the money paid by Raadt to Ms Moore.
[11]
Ms Moore had signed the offer to purchase the Barkly West properties
from Mr Lodewikus Theodorus Pienaar on 10 February 2014 for RI
million payable in four instalments of R250,000.00 with effect from
07 April 2014 with the last instalment on 07 July 2014. Mr Jacobus
Smit, a Senior Financial Investigator attached to the Asset
Forfeiture Unit, conducted an analysis in her Standard Bank account,
which showed that there was no other income received into
that
account, except the money paid by Raadt. That same account was used
to make payments to Pienaar. The CM Property Trust was
founded on 27
November 2014 by Letter of Authority, whose trustees are the second
and third respondents. The Barkly West properties
were transferred
into the name of the CM Property Trust on 23 September 2015 and 12
October 2015. It is the NDPP's case that the
Trust was created solely
for purposes of registering the Barkly West properties. What is
significant is that the Registrar of Deeds
first registered the Apian
property into Ms Moore's name on 17 October 2018 as it appears on
annexure "CM 23".
[12]
The version of the respondents is that Ms Moore was entitled to
sell
the Apian property on the strength of the 2013 redistribution
agreement which expressly authorised her to deal with the property
as
she deemed fit, which included the right to sell it, so the argument
went. The agreements she concluded with Raadt were, according
to her,
lawful. She had the intention to transfer the property to Raadt upon
full payment of the purchase price. It was submitted
on her behalf
that she was entitled to receive both the monthly occupational rent
and payments towards the purchase price. It was
further argued that
she had complied with the obligations in the 2013 redistribution
agreement.
[13]
Ms Van Dyk, for the
NDPP, submitted that at the time of the sale of the Apian property to
Mr Raadt, Ms Moore was the registered
owner of an undivided half
share of the Apian property as the other undivided half share formed
part of the deceased estate. She
was not entitled to sell the
property to Raadt in January 2014. To bolster this submission, she
referred this Court to Clause 3
of the redistribution agreement,
which permitted the parties to rent or market the properties whilst
the sale of such properties
had to occur after or simultaneously with
the transfer of the property.
[7]
Clause
5 made provision in the event that Ms Moore required transfer of the
property before the expiry period of eight months
then
an amount of R200,000.00 or the remaining portion thereof would be
payable on transfer or from the proceeds of the property
and the
necessary guarantees were applicable.
[8]
[14]
On 27 January 2014 when Ms Moore entered into a rouwkoop sale
agreement
with Mr Raadt, she did so in her personal capacity without
the knowledge of the executor of the estate. Ms Van Dyk urged the
Court
to have regard to the following factors when considering the
role of Ms Moore:
14.1
Had an attorney been approached to consider the contract for the
Apian property sale, the first
step would have been to conduct a
Deeds Search to establish its owner. He or she would have been aware
that the property was part
of an estate preventing Ms Moore to sell
it as its owner. However, because she knew or was aware at that stage
that she was not
its owner and cannot sell it to Raadt, she had the
contract of sale drawn by a certain Mr R Van Niekerk, who was, at the
time,
her husband;
14.2
The intention of Ms Moore selling prepaid electricity of Rl0,000.00
to Mr Raadt upon his occupation
of the Apian property should not be
assessed in isolation but together with all the other surrounding
circumstances;
14.3
The fact that she failed to disclose to Mr Raadt that the electricity
account was blocked by
the Municipality due to the account being in
arrears and that there were no transactions permitted for purposes of
this property,
should not be overlooked;
14.4
That the Apian property was in fact part of the deceased estate which
was not yet finalised when
she portrayed to Mr Raadt that she was its
legal owner with the right to sell it. She used the payment received
from Raadt to purchase
the Barkly West properties.
14.5
If Ms Moore intended to sell the Apian property lawfully, the sale
should have been through the
executor, as in the case of the Camelot
properties and not by her directly.
[15]
Mr Pienaar argued that
there exists genuine dispute of facts. On the basis of
the
Plascon-Evans
principle
[9]
he
contended,
that
this
Court
ought
to accept the version of
the respondents unless it is far-fetched. He argued that the version
is not false. Counsel further argued
that, in terms of the 2013
redistribution agreement, Ms Moore was entitled to deal with the
property as she deemed fit. Mr Pienaaar
also relied on Clauses 3 and
5 of the redistribution agreement already referred to above.
According to Mr Pienaar, the redistribution
agreement was concluded
and signed before the sale of property to Mr Raadt. Counsel further
argued that Ms Moore received the benefits
pertaining to the sale of
the Apian property after the redistribution agreement was signed by
the parties concerned. In my view,
these disputes of fact are not
genuine and are certainly soluble on the papers as they stand.
[16]
What stands for
determination is whether the Barkly West properties are proceeds of
unlawful activities. The remarks by Ackerman
J in
Mohammed
NO
[10]
relating to Chapter 6 of
POCA
are
relevant:
"Chapter 6
provides for forfeiture in circumstances where it is established on a
balance of probabilities, that property has
been used to commit an
offence, or constitutes the proceeds of unlawful activities, even
where no criminal proceedings in respect
of the relevant
crimes
have been instituted.
In this respect,
Chapter 6
needs to be understood
in contradiction
to Chapter 5 of
the Act. Chapter 6 is therefore focused, not on wrongdoers, but on
property that has been used to commit an offence
or which constitutes
the proceeds of crime. The guilt or wrongdoing
of the owners
or possessors of property is, therefore,
not primarily
relevant to the proceedings.
There is, however, a defence
at the second stage of the proceedings when forfeiture is being
sought by the State. An owner can at
that stage claim that he or she
obtained the property legally and for value, and that he or she
neither knew nor had reasonable
grounds to suspect
that the
property constituted proceeds of crime or had been an instrumentality
in an offence ("the innocent owner" defence).
"
[17]
POCA defines 'proceeds of unlawful activities' as meaning
"any property or
any service advantage, benefit or reward which was derived, received
or retained, directly or indirectly,
in the Republic or elsewhere, at
any time before or after the commencement of this Act, in connection
with or as a result of any
unlawful activity carried on by any
person, and includes any property representing property so derived."
[18]
The definition
is wide and as confirmed
by the SCA in
Cook
Properties
[11]
it also applies to
individual wrong-doing. The definition fundamentally
requires that the
property in question be 'derived, received or retained' in
connection with or as a
result of an unlawful activity.
[12]
It needs to be borne in mind that POCA's objectives include, among
others, the removal of incentives of crime and advancing the
ends of
justice.
[19]
When Ms Moore sold the
property to Mr Raadt, she had been removed by the Master of the High
Court as the Executrix and, as correctly
argued by the NDPP, had no
right to directly sell the Apian property herself without involving
the Executor, as the Apian property
formed part of the estate. To
countervail this position, Mr Pienaar, relying on
Loomcraft
Fabrics CC
[13]
,
argued
that Ms Moore has made an error in interpreting the provisions of the
redistribution agreement, but that did not mean she
had the intention
to defraud
Mr Raadt.
That
may
well
be,
but still does not
account
for the exclusion
of
the executor from the sale.
[20]
This was no error on the part of Ms Moore as argued by her counsel.
She was well aware of both the clause in the deceased's Last Will and
Testament as well as the contents of the redistribution agreement.
Had she complied with the same, she would have made the R200,000.00
payment to the estate within 8 months from the date of signature
of
the redistribution agreement. More importantly, is that the parties
were at liberty to let (verhuur) or to market (bemark) the
property.
The redistribution clause is unambiguous, reiterated by the
executor's, Ms Malherbe's, e-mail that the sale of the property
was
to occur
after the transfer to Ms Moore
or had to happen
simultaneously with the transfer.
There is a proviso in the
agreement that, should Ms Moore sell the property before the lapse of
the 8 months period and requires
transfer, the R200,000.00 or any
remaining amount shall be payable on transfer from the proceeds of
the property. The necessary
guarantees were applicable.
[21]
A correct reading of Ms Malherbe's email, emphasised point 3 of
the
redistribution agreement "CM14", that the sale of the Apian
property will only be possible after the transfer of
the property,
which was only transferred in the name of Ms Moore on 17 October
2018. It is clear that when she sold the property
to Raadt in 2014,
she had no right to do so. In any event, when the redistribution
agreement was entered into, it was expressly
agreed that Ms Moore
would pay the amount of R200,000.00 into the estate within 8 months
of signature by all the parties. This
was not done. Evidently, Ms
Moore was not entitled to the total amount of R1,478,650.00 which I
conclude are proceeds of her unlawful
activities. She has unfairly
benefitted therefrom by acquiring the Barkly West properties.
[22]
Equally true is that on the plain reading of the redistribution
agreement clause, as well clause 1.3 which includes 1.3.1 and 1.3.2
of the testator's Last Will and Testament, applying the ordinary
grammatical meaning to the phrases, Ms Moore had to comply with the
conditions set out in the Will by paying a bequest to the estate
equal to the sworn valuation of the late Mr Diedericks' share in the
said dwellings, as determined by the executor for estate
administration purposes. This, she would not have known without the
involvement of the executor. Secondly, the sale of the property
was
to occur after the transfer or had to happen simultaneously with the
transfer. This was not the case.
[23]
The second respondent, Mr Christopher Moore, is Ms Moore's son.
He
contended that because he had cared and maintained his mother, she
gave him the Barkly West properties, which were subsequently
registered in the name of his Trust. The evidence suggests that the
Trust was established solely for purposes of the registration
of
these properties. There is, in my view, no case made out that Mr
Moore had legally acquired interest in the Barkly West properties,
which warrants consideration pertaining to proportionality. At the
risk of repetition, the full amount of the purchase price for
the
Barkly West properties was from Mr Raadt.
[24]
The relief that the NDPP is seeking is for both immovable properties
to be forfeited to the State because the capital amount paid for both
was R1 million and Ms Moore had received R1,478,650.00.
[25]
The Constitutional Court
in
Botha
[14]
admonished the courts
considering forfeiture applications to pay attention to the issue of
proportionality. The majority in the
Botha
judgment
[15]
remarked that the order should be limited to the value of the
proceeds. I wish to reiterate the purpose of forfeiture, namely,
to
combat serious crimes and remove the incentive to commit such crimes.
It cannot be said that forfeiture, under these circumstances,
is
arbitrary. Ms Moore's acquisition of the Barkly West properties was
because of the moneys paid to her instead of to the estate
for the
sale of property, which was not transferred into her name yet. The
said Apian property has
finally been transferred to her and is currently occupied by her son
despite having received and benefited
for R1,478,650.00 which would,
ordinarily, have been paid into the estate. Ms Moore has from the
proceeds of the sale of the Apian
property unlawfully gained the
acquisition of the Barkly West properties. Borrowing from the words
of Jafta J
[16]
"Forfeiture
of the proceeds
of crime in the
present
circumstances
cannot
constitute
arbitrary deprivation
of property.
"
It was indicated in the answering affidavit that the two properties
are unoccupied
at
this stage.
[26]
Chapter 3 of POCA and more particularly
sections 4
to
8
thereof deal
with money laundering.
Sec 4
defines money laundering as:
"Any person who
knows or ought reasonably to have known that property is or forms
part of the proceeds of unlawful activities and
-
(a)
enters into any agreement or engages in any arrangement or
transaction with anyone in connection
with that property,
whether such agreement, arrangement or transaction is legally
enforceable or not; or
(b)
performs any other act in connection with such property,
whether it is performed independently or in concert with any other
person,
which has, or is likely to have the effect-
(i)
of concealing or disguising the nature, source, location,
disposition or movement of the said property or the ownership thereof
or any interest which anyone may have in respect thereof, or
(ii)
of enabling or assisting any person who has committed or
commits an offence, whether in the Republic or elsewhere-
(aa) to avoid
prosecution; or
(bb) to remove or
diminish any property acquired directly, or indirectly, as a result
of the commission of the offence,
shall be guilty of an
offence.
"
Ms
Moore knew when she sold the Apian property that she was not entitled
to sell it and receive the money from Raadt. The submission
by the
NDPP that she bought the Barkly West properties with the money she
received from Raadt to disguise its origin, is persuasive.
The
subsequent registration of the said property in a trust belonging to
her son strengthens this argument.
[27]
It is evident at this stage that the respondents' version in respect
of the proceeds of the sale of the Apian property and Ms Moore's
action can definitely not be categorised as 'a mere error,
misunderstanding
or oversight' as submitted by her counsel. Her
interpretation of the redistribution agreement that led to her
premature sale of
the property stands to be rejected and the NDPP's
version accepted as probable. The Barkly West properties are found to
be proceeds
of unlawful activities and stands to be forfeited. It is
my view that the Barkly West properties were not acquired lawfully
and
should not enjoy the protection afforded by s 25 of the
Constitution. I am further of the view that the NDPP has met all the
jurisdictional
requirements for the granting of both a preservation
of property order and a forfeiture order.
[28]
In as far as the costs are concerned, there is no reason why they
should not follow the result.
[29]
In the result, the following order is made:
1.
An order is hereby granted in terms of the provisions
of
section 50 of the Prevention of Organised Crime Act 121 of 1998
(POCA), declaring forfeit forthwith to the State the following
property: Erf 1434 Barkly West, known as 14 Schoeman Street, Barkly
West and Erf 1435 Barkly West, known as 16 Schoeman Street,
Barkly
West
(the property) which is presently
subject
to
a
preservation
of
property
order
granted
by
this
Court
under Case
Number 628/20 on 20 March 2020.
2.
In terms of section 50(6) of POCA, paragraph 5 below shall take
effect 45 days after publication of a notice thereof in the
Government
Gazette.
3.
As per the Court Order dated 24 July 2020, paragraph 1.1 the
property will remain in the possession of and/or control of the
Respondents
under the conditions as per the Court Order pending the
outcome of the forfeiture application.
4.
On the date on which this Order takes effect, to wit 45 weekdays
after publication in the Government Gazette the Respondents shall
hand the property to the Senior Special Investigator, Jacobus Smit
of
the
applicant who shall:
a.
Assume control of the property and take it into his custody;
b.
Sell the property at a best price either by public auction or
private treaty;
c.
Sign all documents necessary to effect the sale, transfer and
registration
of the property; and
d.
Pay the proceeds thereof, less any commission and incidental
expenses occasioned by the sale into the Criminal Asset Recovery
Account
number 80 303 056 established in
terms of section 63
of POCA.
5.
The applicant
be and is further
directed
to
publish a notice of
this Order in the Government
Gazette
as soon as it is practicable.
6.
The
respondents
are
ordered
to
pay
costs
of
this
application
jointly and
severally, the one paying the other to be absolved.
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the applicant:
Adv L Van Dyk
Instructed
by:
The State Attorney, Kimberley
For
the 1
st
- 5
th
respondents:
Adv CD Pienaar
Instructed
by:
Mervyn Joel Smith Attorneys
[1]
121 of1998
[2]
Section 48 of POCA provides:
(1)
If a preservation of property order is in force the National
Director, may apply to a High Court for an order forfeiting to the
State all or any of the property that is subject to the preservation
of property order.
(2)
The National Director shall give 14 days' notice of an
application under subsection (1) to every person who entered an
appearance
in terms of section 39(3).
(3)
A notice under subsection (2) shall be served in the manner
in which a summons whereby civil proceedings in the High Court are
commenced is served.
(4)
Any person who entered an appearance in terms of section
39(3) may appear at the application under subsection (1)-
(a)
to oppose the making of the order: or
(b)
to apply for an order-
(i)
excluding his or her interest in that property from the
operation of the order; or
(ii)
varying the operation of the order in respect of that
property, and may adduce evidence at the hearing of the application.
[3]
Section 48 (3) provides: A notice under subsection (2) shall be
served in the manner in which a summons whereby civil proceedings
in
the High Court are commenced, is served.
[4]
2012 (2) SA 137
(SCA) at 147 para 28
[5]
1.3 To my friend Henrietta Cornelia Moore, the following:
1.3.1
My share in the dwelling located at 24 Apian Road, Royldene,
Kimberley.
1.3.2
My share in the dwelling located at 7 Merlin Close, Camelot.
The
bequests under clauses 1.3.1 and 1.3.2 are subject to the condition
that my said girlfriend will pay a bequest to my estate
equal to the
sworn valuation of my share in the said dwellings, as determined for
estate administration purposes. If my said
friend does not accept
the condition as set out above, the bequests under clauses 1.3.1 and
1.3.2 to her will lapse and I bequeath
the said assets to my
children, Jacob Le Roux Diedericks (born 18/10/1984) and Christelle
Diedericks (born 04/04/1979) subject
to lifelong usufruct in favour
of my girlfriend, Henrietta Cornelia Moore.
[6]
Rouwkoop in this agreement is defined as: "A 'rouwkoop'clause
in a contract of sale provides for the purchaser to pay a
deposit to
the seller that is not refundable should the purchaser withdraw from
the contract. Most contracts of sale, that provide
for the payment
of a deposit by the purchaser, also contain a provision that such
deposit will not be paid back in such circumstances.
Such a clause
can also be a penalty clause, which is applicable where the contract
is cancelled as a result of the purchaser's
breach.
[7]
"Die partye kan dan voortgaan om met die eiendomme te handel
dws te verhuur of te bemark. Verkoping sal egter na oordrag
van die
eiendom of met gelyktydige oordrag van die eiendom hanteer moet
word."
[8]
"Jndien Mev Moore Apian verkoop voor die agt maande verstryk
het en sy verlang oordrag, sal die R200,000.00 (of oorblywende
gedeelte) betaalbaar wees by transport vanuit die opbrengs van
eiendom. Die nodige waarborge sal van toepassing wees."
[9]
Plascon-Evans Paints (TYL) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
[10]
NDPP v Mohammed NO and Others 2002 (2) SACR 196 (CC)
[11]
National Director of Public Prosecutions v RO Cook Properties (Pty)
Ltd; National Director of Public Prosecutions v 37 Gillespie
Street
Durban (Pty) Ltd & Another; National Director of Public
Prosecutions v Seevnayaran
2004 (2) SACR 208
(SCA) at 239
[12]
Cook Properties para 64
[13]
Loomcraft Fabrics CC v Nedbank Ltd
[1995] ZASCA 127
;
1996 (1) SA 812
(A) at 822G
[14]
National Director of Public Prosecutions v Botha N.O. and Another
[2020] ZACC 6
;
2020 (1) SACR 599
(CC);
2020 (6) BCLR 693
(CC) (26
March 2020)
[15]
At para 103
[16]
At para 117