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[2018] ZAGPPHC 87
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Langkilde N.O and Others v Wessels and Others (39315/2014) [2018] ZAGPPHC 87 (14 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 39315/2014
76206/2014
Date:14/3/18
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
VICTOR
LANGKILDE N
.O
FIRST PLAINTIFF
MARY-LYNN
LANGKILDE N.O
SECOND PLAINTIFF
BRIAN
ERIC REES N.O
THIRD PLAINTIFF
And
SANDRA
JULIET
WESSELS
FIRST DEFENDANT
WYNAND
JURIE WESSELS
SECOND DEFENDANT
GELDENHUYS
MEYER ATTORNEYS
THIRD DEFENDANT
JUDGMENT
PRETORIUS
J,
(1)
This is a consolidated action, where two cases, namely case number
39315/2014 and case number 76206/2014, were consolidated
by court
order on 24 August 2016.
THE
PARTIES:
(2)
Case number 39315/2014:
2.1
The first plaintiff is Victor Langkilde NO, who sues in his capacity
as a trustee of the Vic Langkilde Family
Trust ("the Trust"),
number IT9807/97.
2.2
The second plaintiff is Mary-Lynn Langkilde NO, who acts in her
capacity as a trustee of the abovementioned
trust.
2.3
The third plaintiff is Brian Eric Rees NO, who acts as a trustee of
the Vic Langkilde Family Trust. He is
also a chartered accountant.
2.4
The first defendant is Sandra Juliet Wessels married to the second
defendant;
2.5
The second defendant is Wynand Jurie Wessels, who is cited in that he
may have an interest in the outcome of the
action, as he is presently
still married to the first defendant.
2.6
The third defendant is Geldenhuys Meyer Attorneys, who has an
interest in the proceedings as it holds
the proceeds of the sale of
the property which had belonged to the first defendant and which i&
the object in this action.
No costs order is sought against the third
defendant.
(3)
Case number 76206/2014:
3.1 In
this matter the plaintiff is Wynand Jurie Wessels.
3.2
The first defendant is Sandra Juliet Wessels.
3.3
The second defendant is Geldenhuys Meyer Attorneys, who is holding
the proceedings of the sale of the property by
the first defendant.
No costs order is sought against the second defendant.
INTRODUCTION:
(4)
On the date of trial, the plaintiff in case number 76206/2014
withdrew his action. In the action before court, case
number
39315/2014, he was not represented and did not partake in the trial,
although he had been cited as having an interest in
the outcome of
the trial.
(5)
The plaintiffs instituted action against the first defendant for
payment of an amount of R885 000, which claim is
based on a written
agreement in which the first defendant bound herself to make payment,
under certain conditions.
(6)
On 31 August 2006, the Trust, represented by the first plaintiff and
the first defendant acting personally and other
parties concluded a
written agreement whereby the Trust agreed to lend and advance
various amounts of ·money to the company
8-Tell (Pty) Ltd. The
second defendant was the sole director and a 30% shareholder in the
company, 8-Tell (Pty) Ltd. One of the
conditions, in terms of the
agreement was that the first defendant had to provide a property,
belonging to her, as security for
the repayment of the monies to be
lent and advanced to the company , B-Tell (Pty) Ltd.
(7)
The express, or implied terms of the agreement, according to the
plaintiffs, were that the Trust agreed to lend
an amount of money to
the company 8-Tell (Pty) Ltd, which was limited to an amount of R900
000. The first defendant agreed to bind
her property, 41 Willem Road,
Eldoraigne Extension 3, Centurion , belonging to her, as full and
final security on any amount the
Trust lends to her husband's, the
second defendant's, company. Clause 6 of the Memorandum of Agreement
("the MOA'') provided:
"6. SECURITY
6.1
THE PROPERTY: 41 Willem
Road, Eldoraigne x3, Centurion, Pretoria.
Stand number 1572
6.2
SJ declares that THE PROPERTY is solely registered in her
name, and that it is bonded at ABSA Bank, and the total outstanding
is
not higher than R450 000.00.
6.3
As security, SJ hereby agrees and bound THE PROPERTY currently
registered in her name to LANGKILDE as full and final security on
any
amount in the loan account of B-Tell.
6.4
Should LANGKILDE at any stage during this agreement not be in
a
position to supply the finances as agreed, the security
hereby given will only be limited to the amount actually received
from LANGKILDE.
6.5
Should it be necessary to call on the security, the parties
hereto agree to sign all documentation necessary to sell THE
PROPERTY,
in which event the amount given as security will firstly be
paid out of any proceeds to LANGKILDE.
6.6
Should SJ refuse to sign any documentation after being called
on to do so, the parties hereby instruct the sheriff of Centurion to
sign on her behalf all documentation so required to be signed."
(8)
On 13 December 2013 B-Tell (Pty) Ltd was indebted to the Trust in the
sum of R885 000. The Trust obtained knowledge
during December 2013
that the first defendant had sold the property, without making any
payment to the Trust, according to the
agreement. It was agreed
between all the parties that the proceeds of the sale had to be kept
in the trust account of the third
defendant, pending the outcome of
the actions instituted. Hence the present action before court.
(9)
Mr Pieters, the 100% shareholder and sole director of Dunrose Trading
188 (Pty) Ltd, gave evidence that he had entered
into an acquisition
agreement on behalf of Dunrose Trading with Mr Wessels, Mr Ford, Mr
and Mrs Langkilde. The purpose of the agreement
was to acquire all
the loan accounts or other claims that the vendor may have against B
Tell (Pty) Ltd, jointly or individually.
(10)
Mr Pieters testified that at no stage did Mr Wessels provide him with
the physical address of 8-Tell, no
phone number of the company was
provided and he did not provide the securities register or memorandum
or incorporation at any stage.
Mr Pieters eventually cancelled the
agreement as he realised that Mr Wessels could not perform on behalf
of 8-Tell (Pty) Ltd. He
realised that he was buying a non-existing
loan account and cancelled the agreement in writing. He had never met
Mr Langkilde before
coming to court and did not know him.
(11)
Mr Langkilde, the first plaintiff, testified that he had invested in
the 8- Tell company as a result of the business
opportunity given to
the Trust on behalf of 8-Tell (Pty) Ltd by Mr Wessels, the second
defendant. According to Mr Langkilde, he
constantly made enquiries
from Mr Wessels as to the situation of the company, but Mr Wessels
was elusive and did not attend appointments.
According to Mr
Langkilde, the Trust had already invested approximately R4 million in
B-Tell (Pty) ltd at that time.
(12)
Mr Langkilde's evidence was that during August 2006 Mr Wessels once
more required more money from the Trust, but
Mr Langkilde refused to
grant any loan without security being provided. An agreement was
signed on 31 August 2006. According to
the agreement the property
belonging to the first defendant, was bound to Langkilde Trust
"as
full and final security on any amount in the loan account of 8-
Tell".
The property of the first defendant, so bound as
security, is described in the agreement as 41 Willem Road, Eldoraigne
X3, Centurion,
Pretoria and the first defendant declared that the
property was solely registered in her name, although there was a bond
on the
property.
(13)
Mr Langkilde transferred the amount of R885 000 to the account of B
Tell (Pty) ltd on 31 August 2006, the same day
the memorandum of
agreement was signed, due to the fact that the property was bound as
security.
(14)
It became apparent to Mr Langkilde in the ensuing three years that B
Tell (Pty) ltd had no money and the shares
could not be traded. On 12
December 2013 Mr Bester, an attorney from the firm Spies, Bester,
Potgieter informed Mr Langkilde that
the first defendant was selling
the bonded property·, as according to her the debt of R885 000
had been settled by her husband,
Mr Wessels. On 17 January 2014 the
first defendant's attorneys were informed that the debt was due and
owing and that the first
defendant's assumption that the debt had
been extinguished was incorrect. It was subsequently agreed that the
amount of R885 000
would be held in trust by the transferring
attorneys, the third defendan,t whilst action would be instituted.
(15)
On 30 May 2014 the plaintiffs issued summons, which was served on the
first defendant on 10 June 2014. Mr Langkilde
testified that he was
not a party to the cancellation of the Dunrose agreement at any
stage. He and the other parties entered into
the MOA on 31 August
2006, knowing the precarious position they were in. The loan was
claimed on a constant basis by him from Mr
Wessels, to no avail. It
became clear that Mr Wessels could not repay the loan.
(16)
Mr Langkilde further testified that at no stage was the MOA varied.
The buyers of the property were informed by
Mr Wessels of the lien
against the property.
(17)
Mr Rees, the third defendant, and the accountant of the Trust,
testified that he had been aware of the 8-Tell
(Pty) Ltd venture, at
all times. According to him the trustees had decided that no further
loans would be granted to Mr Wessels,
unless security was provided.
This decision of the trustees was taken in 2006 when the amount of
R885 000 was loaned to B-Tell
(Pty) Ltd against the security provided
by the first defendant in the. MOA of 31 August 2006. Although the
resolution taken in
December 2013 to institute action was not in
writing, all trustees were
ad idem
that
action
should
be instituted and were party to the resolution.
(18)
Mrs Langkilde's evidence confirmed that of both the first and third
plaintiffs that a resolution had been taken
by the three trustees
during December 2013, to institute action.
(19)
Mrs Wessels, the first defendant, gave evidence that she and her
husband, Mr J Wessels, had been living apart since
2011, although
they have not yet been divorced. She had not previously known any of
the witnesses and had seen them for the first
time
at court.
(20)
She denied knowing anything about 8-Tell (Pty) Ltd or any businesses
of Mr Wessels, the second defendant. She had signed
a document as
requested by the second defendant, which was the MOA of 31 August
2006. She sold the property as the second defendant
had offered her
R800 000 for the house. This caused her to sell the house, as she did
not trust the second defendant and she had
realized it was not a
realistic price for the property. Her evidence concerning her
instructing attorney, Mr Bester, was that she
only knew that he was
in business with the estate agent who had sold the house and did not
know him at all. She had never met him.
It was put to her that Mr
Bester wrote the letter on her behalf and on her instructions on 18
January 2014 to the attorney of the
Vic Langkilde Trust and stated:
"We
confirm that we act on behalf of Mrs SJ Wessels and is this letter
addressed to you as per our instructions.
We confirm
that an agreement was indeed entered into on 31 August 2006 between
inter alia VIC Langkilde Family Trust, W Wessels,
SJ Wessels and
B-Te/1 Ply Limited. As per said agreement Vic Langkilde Family Trust
was willing to provide finance to the maximum
of R900 000.00 to
B-Te/1 Pty Limited and did our client, Ms SJ Wessels agreed to buy
the property as security for the successful
repayment of the debt to
the Maximum of R900 000.00."
(21)
Once more she denied knowing Mr Bester. According to her the estate
agent, Mr van der Merwe, took an active
interest in her affairs and
her conjecture was that Mr Bester wrote the letter on her behalf in
these circumstances. The witness
was unsure of herself whilst giving
evidence and pleaded ignorance about the affairs of Mr Wessels,
although she admitted signing
the MOA and binding her property.
(22)
The second defendant always paid the bond, but was sequestrated on 29
August 2012 and the bond fell behind. She
admitted to signing the MOA
on 31 August 2006 and that she had been aware of the contents of
clause 6 of the MOA and what it entailed.
She was the only witness
for the defence. Mr Bester, the attorney acting on her behalf, when
corresponding with the Trust, was
not called to confirm her version.
The estate agent, who she testified, might have given instructions to
Mr Bester, was not called
to confirm her version of the events.
(23)
The following facts are common cause:
23.1
The plaintiffs have
locus standi;
23.2
The plea had been amended;
23.3
The MOA was entered into on 31 August 2006;
23.4
B-Tell (Pty) Ltd had been deregistered on 16 July 2010 as set out in
the pre-trial minute.
(24)
The first technical defence by the first defendant was that there had
been no resolution by the trustees to institute action.
This defence
was abandoned during argument by counsel for the first defendant.
Furthermore, it was conceded that the numbering
of the Trust was
inadvertently wrong in the MOA and was no longer an issue. The
further special plea of non-joinder of B-Tell (Pty)
Ltd was waived
and the court did not have to deal with it.
(25)
Counsel for the first defendant, correctly argued that immovable
property's real rights can only be transferred
by registration
against the title deed. However, in this instance there is a written
agreement between the parties, which was entered
into for the payment
of the outstanding amount by the first defendant. Clause 6.4 provided
that the security given was limited
to the amount actually received
from Langkilde, which in this instance was R885 000.
(26)
I must agree with counsel for the plaintiffs that this was security
for a loan and did not require registration
against the title deed.
The loan was secured through the property, according to the
agreement. This was confirmed by the first
defendant whilst
testifying. The reason why the proceeds of the sale is being kept in
trust by the third defendant, pending the
determination of this
action, is as a result of the provisions of clause 6. The letter of
18 January 2014 written by Mr Bester
on behalf of the first defendant
confirmed the position.
{27)
Therefor the special plea of prescription has to be dismissed, as the
relevant date was the date the property had been sold,
which was
during 2013. Summons was issued on 30 May 2014 and served on 10 June
2014. There can be no doubt that the claim has not
prescribed.
(28)
Counsel for the first defendant argued that the first defendant
should not be mulcted with costs due to Mr
Wessel's conduct.
According to the first defendant he was a significant role player in
the events leading up to the conclusion
of the MOA. That may be so,
but it cannot indemnify the first defendant, who confirmed under oath
that she had signed the MOA.
Her further evidence that she had not
requested the attorney, Mr Bester, to act on her behalf is found to
be so unlikely that it
cannot be true. There is no evidence to
confirm her version and it is clear from the letter from Mr Bester
that he had full instructions
in respect of the loan, the MOA and the
terms of the agreement. This information he could only have obtained
from the first defendant.
In any event, Mr Bester was not called as a
witness to confirm her evidence.
(29)
The first defendant did not impress the court as a good witness as
she tried to avoid answering direct questions
and pleaded ignorance
in instances where she clearly had the information. The three
witnesses for the plaintiff were honest witnesses
who only gave
evidence on the facts before court and did not embellish their
evidence. The court accepts that the plaintiffs have
proved their
case on a balance of probabilities. It may be so that the second
defendant had played a role in the first defendant's
misfortune, but
she had voluntarily signed the MOA. She may, in the circumstances,
have a claim against the second defendant, but
this court cannot deal
with such an eventuality.
{30)
In the circumstances it will be fair for her to pay the costs of this
action. The costs that were reserved on the previous
occasion, when
the cases were consolidated cannot be blamed on her and the court
will not grant an order that she has to pay the
costs of the previous
court date.
(31)
In the result the following order is made:
1.
The third defendant is hereby authorised and directed to pay to the
plaintiffs the sum of R885 000 from the proceeds
of the sale of the
property being 41 Willem Road, Eldoraigne Ext 3, Centurion, Pretoria,
also known as Stand number 1572 Eldoraigne
Ext 3;
2.
The third defendant is hereby authorised and directed to pay to the
Trust interest on the sum of R885 000 calculated
at the rate of 15.5%
per annum with effect from the date of transfer of the property out
of the name of the first defendant, to
date of payment;
3.
An order for rectifying the written contract between the parties,
annexure 'B' to the particulars of claim,
by substituting the
registration number of the Vic Langkilde Family Trust with the No
IT9807/97;
4.
The first defendant to pay the costs of suit.
Judge
C Pretories
Case
number
: 39315/2014 & 76206/2014
Matter
heard on
: 19 & 20 February 2018
For
the Plaintiffs
: Adv AP Bruwer
Instructed
by
: Du Plessis De Heus & Van Wyk Attorneys
For
the First Defendant I :
AdvJ Vlok
Instructed
by
Fivaz Incorporated
Date
of Judgement:
14 March 2018