About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 50
|
|
Corfuscore (Pty) Ltd v Ehler NO and Others (3558/2018) [2018] ZALMPPHC 50 (24 August 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: 3558/2018
Reportable
Of
interest to other judges
Revised.
In
the matter between:
CORFUSCORE
(PTY)
LTD
APPLICANT
And
GERT
HENDRIK EHLER NO & 03
OTHERS
RESPONDENTS
JUDGMENT
KGANYAGO
J
[1]
The applicant bought the farms Bonteberg 85, Registration Division
L.R. Limpopo; the farm Kalkfontein 84, Registration Division
L.R
Limpopo and the farm S’Gravenhage 100, Registration Division LR
Limpopo (“the farms”) at a public auction
that was held
on the 19
th
January 2018. Thereafter, the applicant proceeded to transfer the
farms into its names at the Registrar of Deeds for Limpopo Province.
The farms were previously owned by Emberbe Trust (“the trust”).
On the 16
th
February 2018 the trustees of the trust launched an application
seeking an order to set aside the sale in execution that took place
on the 19
th
January 2018. The applicant proceeded with the process of
transferring the farms into its names despite the pending
application.
The farms were registered by the Registrar of Deeds into
the names of the applicant on the 30
th
April 2018.
[2]
The applicant has now brought an application against respondents and
their employees that they be interdicted to immediately
stop
conducting any agricultural or farming activities on the farms. The
applicant is further seeking an order that the respondents
and their
employees be evicted from the farms. However, on the date of the
hearing of this application, the applicant’s counsel
handed in
a draft order in which they are no longer seeking an order for the
eviction of the respondents and their employees on
the farms. The
draft order basically amend their notice of motion.
[3] The dispute arose
from the sale in execution of the farms that was held on the 19
th
January 2018. The trust as previous owners of the farms were granted
a long term loan by Landbank. The trust defaulted in their
repayments
of the loan and Land Bank instituted legal action against the trust
for the recovery of the loan. Land Bank with the
consent of the
trustees obtained a default judgment against the trust.
[4]
On the 10
th
October 2017 the sheriff Mokopane placed the farms under judicial
attachment. On the 3
rd
November 2017, the sheriff Bochum also placed the farms under
judicial attachment. The farms are situated within the jurisdiction
of the sheriff Mokopane. The sale was advertised to take place on the
19
th
January 2018 at the office of the sheriff of the High Court Bochum.
[5] On the 17
th
January 2018 the attorneys of the trust wrote a letter to the sheriff
Bochum informing him that he did not have jurisdiction to
sell the
farms as they fell under the jurisdiction of sheriff Mokopane. The
sheriff Bochum responded confirming to the trust attorneys
that the
sale scheduled for the 19
th
January 2018 is cancelled due
to the investigations by the Department of Justice on sheriff’s
jurisdictions. He further informed
the trust attorneys that the
attachment will remain in force until further notice. On the 18
th
January 2018, the sheriff Bochum wrote a retraction letter notifying
the trust Attorneys that the cancellation of the sale letter
dated
17
th
January 2018 was irregular and was withdrawn. He
further notified the trust Attorneys that the sale will proceed on
the 19
th
January 2018 as previously scheduled. Indeed on
the 19
th
January 2018 the sale of the farms proceeded by
way of public auction and the applicant was the successful bidder.
[6]
According to the fourth respondent, it signed an offer to purchase
the farm S’Gravenhage 100, LR, Limpopo Province on
the 28
th
June 2017. It also paid a deposit and delivered guarantees. The
process of transferring the farm into its name was started and
it was
also furnished with clearance and cancellation figures. The fourth
respondent took occupation of the farm based on the permission
from
the trust and commenced with its farming activities. The transfer
process was stalled by the auction of the 19
th
January 2018.
[7]
The applicant as the registered owner of the farms wants an order
interdicting the respondents from continuing with their farming
activities on the farm. The intention of the applicant is to take
immediate occupation of the farms to enable it to commence with
its
own farming activities. The respondents contends that the applicant
does not have a clear right to the farms as the sale in
execution
that tookplace on the 19
th
January 2018 is been challenged. The basis of their challenge is that
the sheriff Bochum did not have the authority to sell the
farms. They
are also challenging the ad hoc appointment of the sheriff Bochum to
sell the farms. The fourth respondent contends
that it has signed a
valid offer to purchase and has already paid a deposit on one of the
three farms at the time the farms were
sold at a public auction.
[8]
The respondents contends that the applicant has failed to establish a
clear right of ownership of the farms and therefore its
application
should be dismissed. In the alternative they are seeking an order
that the proceedings be stayed pending the outcome
of their
application to set aside the sale in execution which was held on the
19
th
January 2018.
[9]
It is trite that in an application for the grant of a final
interdict, the applicant must satisfy three requirements which are
a
clear right on the part of the applicant, an injury actually
committed or reasonably apprehended, and the absence of any other
satisfactory remedy available. (See
Setlogelo
vs Setlogelo
1914 AD 221
).
[10]
The applicant in establishing a clear right is relying on its
ownership of the farms. The farms were registered by the Registrar
of
Deeds into the applicant’s names on the 30
th
April 2018. The respondents are challenging the applicant’s
ownership of the farms. According to the respondents there were
procedural irregularities that occurred in the process of the
applicant acquiring ownership of the farms. The respondents contends
that the alleged procedural irregularities renders the applicant’s
ownership of the farms to be invalid. The respondents
argues that
since there is still a dispute in relation to the farms, the
applicant has failed to establish a clear right to enable
it to
obtain a final interdict.
[11] In
Legator
Mckenna v Sheba
2010 (1) SA 35
(SCA)
at para 22 Brand JA said:
“
In
accordance with the abstract theory the requirements for the passing
of ownership are twofold, namely, delivery which in the
case of
immovable
property is effected by registration of transfer in the deeds office
– coupled with a so- called real agreement
or ‘saaklike
ooreenkoms’. The essential elements of the real agreement are
an intention on the part of the transferor
to transfer ownership and
the intention of the transferee to become the owner of the property
(See eg Air-kel (Edms) Bpk h/a Merkel
Motors v Badenstein en ‘n
Ander
1980 (3) SA 1917
(A) at 922 E-F, Dreyer and Another NNO v AXZS
Industries (Pty) Ltd supra at para 17). Broadly stated, the
principles applicable
to agreements in general also apply to real
agreements. Although the abstract theory does not require a valid
underlying contract,
eg sale, ownership will not pass-despite
registration of transfer if there is a defect in the real agreement.
(See Preller and
Others v Jordaan 1956(1) SA 483 (A) at 496; Klerk NO
v Van Zyl and Maritz NNO Supra at 274 A-B, Silberg and Schoeman op
cit at
79-80)”.
[12]
In
Quartemark
Investment v Mkhwanazi
2014 (3) SA 96
(SCA)
at
para 24 Theron JA said:
“…
a
valid underlying agreement to pass ownership, such as in this
instance a contract of sale, is not required. However, where such
underlying transaction is tainted by fraud, ownership will not pass,
despite registration of transfer.”
[13]
The respondents are challenging the authority of the sheriff Bochum
to sell the farms at a public auction that was held on
the 19
th
January 2018. The farms in question fell under the jurisdiction of
sheriff Mokopane. Both sheriffs’ have placed the farms
under
judicial attachment. However, it was the sheriff Bochum who proceeded
with the sale in execution. On the 17
th
January 2018 the first, second and third respondents’ attorneys
brought it to the attention of the sheriff Bochum that the
farms does
not fell under his area of jurisdiction and therefore he lacked the
authority to sell them at a public auction scheduled
for the 19
th
January 2018.
[14]
The sheriff Bochum per his letter dated 17
th
January 2018 confirmed to the first, second and third
respondents’ attorneys that the sale scheduled for 19
th
January 2018 was cancelled. In his letter the main reason why the
sale was cancelled was that the Department of Justice was
investigating
the jurisdiction of sheriffs’. However, on the
18
th
January 2018 the sheriff Bochum wrote a retraction letter to the
first, second and third respondents’ attorneys notifying
them
that the cancellation letter of the 17
th
January
2018 was irregular and that the sale of the 19
th
January 2018 will proceed as scheduled. He did not inform the first,
second and third respondents’ attorneys of the outcome
of the
investigation by the Department of Justice despite it being the main
reason for the cancellation of sale. He did not inform
the attorneys
in what respect was he stating that the cancellation letter was
irregular.
[15] Rule 46(2) of the
Uniform Rules of Courts (“the Rules”) reads as follows:
“
An
attachment shall be made by any sheriff of the district in which the
property is situate or by any sheriff of the district in
which the
office of the registrar of deeds or other officer charged with the
registration of such property is situate, upon a writ
corresponding
substantially with Form 20 of the First Schedule”
[16]
The Rule use the word “
shall”,
and it therefore follows that it is peremptory that the attachment
must be made by the sheriff of the district in which the property
is
situated. In this case it will be the sheriff Mokopane.
[17]
The applicant is contending that the sheriff Bochum was appointed on
ad hoc basis to sell these three farms and is relying
on an
appointment letter dated 18
th
January 2018. However, the sheriff Bochum has made an attachment on
the 3
rd
November 2017 and the appointment letter does not apply
restrospective. The applicant could not produce any letter of
appointment
authorizing the sheriff Bochum to attach the farms on the
3
rd
November 2017.
[18] The first paragraph
of the appointment letter of the 18
th
January 2018 reads
as follows:
“
By
virtue of the authority delegated to me by the Minister of Justice in
accordance with the provisions of section 63(a) and (b)
of Act 90 of
1986, I hereby appoint Mr Ramaala (The sheriff for the District of
Bochum District) on an ad hoc basis as acting sheriff
of the
High
and Lower Court of the district Bochum”.
[19]
The appointment letter has been signed by one of the Registrar’s
of this court. The sheriff Bochum has been appointed
as a permanent
sheriff for the area of Bochum, and it is unclear why it was
necessary that he be appointed on ad hoc basis for
his area of
jurisdiction. Even though the appointment letter refers to the
correct parties and case number, it appoints the sheriff
Bochum for a
jurisdiction in which the farms are not situated. In my view, this
appointment letter was defective. The sheriff Bochum
has used a
defective appointment letter to sell the farms.
[20]
The sheriff Mokopane has deposed a confirmatory affidavit confirming
that on the 10
th
October 2017 he placed the farms under judicial attachment. He
further stated that he had never authorized the sale in execution
of
the three farms to be conducted outside his designated service area
and by another sheriff.
[21]
The fourth respondent has attached a duly signed offer to purchase
the farm S’Gravenhage. There is also proof that at
the time
when the sale in execution was held, the fourth respondent was in the
process of transferring the farm into its names.
By then it has also
paid a deposit to the seller and had taken occupation of the farm
with the consent of the seller.
[22]
In my view even though transfer of ownership has already been passed
to the applicant, it has been passed in a questionable
manner. That
can be cleared by the respondents’ pending application which
they seek to set aside the sale in execution of
the farms. If the
respondents’ succeed with their application, its outcome will
have a serious bearing on the present application.
[23]
The orders which the respondents’ are seeking in their
application to set aside the sale in execution are different from
the
orders that the applicant is seeking in the present case. The
question is whether a plea of
lis
pendes
will be successful under the circumstances if the orders been sought
by the parties are different. The requisite for a successful
plea of
lis
pendens
are that the two actions must have been between the same parties or
their successors in title, concerning the same subject matter
and
founded upon the same cause of complaint. (See Herbstein and van
Winsen The Civil Practice of the High Courts and the Supreme
Court of
Appeal of South Africa fifth edition at page 311).
[24] The requirements of
lis pendens
are the same as the plea of
res judicata.
In
Caesarstone Sdot-yam v World of Marble and Granite
2000
2013(6) SA 499
(SCA)
at para 21 Wallis JA said:
“
On
this basis the requirements of the same course of action is satisfied
if the other proceedings involve the determination of a
question that
is necessary for the determination of the case in which the plea is
raised and substantially determinative of the
outcome of that latter
case. Boshoff was followed in a number of cases in provincial courts,
but was regarded as controversial
because it was thought to import
into South African law the English principles of issue estoppel. It
is unnecessary to explore
that controversy because the court laid it
to rest in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk.
There Botha JA held
that Boshoff was based on the principles of our
law. He said that its ratio that the same thing be claimed, must not
be understood
in a literal sense and as immutable rules. There is
room for their adaption and extension
based
on the underlying requirement that the same thing is in issue as well
as the reason for the existence of the plea”.
[25]
The main dispute is centred around the ownership of the farms. Even
though both parties in their different applications are
seeking
different orders, however the main dispute is about the farms. In
both applications the end result will be the same, the
parties are
seeking to determine the rightful owner of the farms. That in my view
amounts to the same issue. I don’t find
any reason why the
requirements of
lis
pendes
should not be extended in the present application since it is the
same parties litigating against one another regarding the same
farms
even though they are seeking different orders. If the respondents are
successful in their application it will render the
present
application moot. The respondents’ application is entirely
relevant to the current proceedings and substantially
determinative
of the outcome of current application.
[26]
Based in the manner in which the sheriffs’ Bochum and Mokopane
have put the farms under judicial attachment, the manner
in which the
sheriff Bochum was appointed on ad hoc basis and the manner in which
the sale in execution was conducted, that in
my view taint ownership
of the applicant on the farms. These discrepancies need to be
clarified first, and in my view, that can
be clarified by the
respondents’ pending application. Based on these discrepancies
I am satisfied that at this stage the
applicant has failed to
establish a clear right to obtain a final interdict. However, in my
view at this stage that is not a ground
to dismiss the applicants’
application. It will be just and equitable if the proceedings are
stayed pending the outcome of
the respondents’ pending
application.
[27]
The court is mindful that this matter might take years before it is
finally resolved. The applicant has taken a loan over the
farms and
in the meantime will be required to service the loan whilst it is
unable to take occupation of the farms and start farming
in order to
generate income. The applicant will be prejudiced in servicing a loan
which it is unable to generate income on the
farms which the loan was
specifically taken for. However, the applicant proceeded with the
process of transferring the farms into
its own names well aware that
the respondents have launched an application to challenge the
validity of the sale execution. The
applicant was the creator of its
own misfortune.
[28]
Since the application involves the same farms, it is possible that
the same arguments raised in the present application might
be raised
again in the respondents’ application. It was unavoidable not
to have made findings or comments which may have
a bearing on the
respondents’ application. Therefore, the presiding Judge who
will be hearing the respondents’ application
should not
consider himself or herself bound by my findings or comments in this
application.
[29] In the result I make
the following order:
29.1
The proceedings in the present application is stayed pending the
outcome of the respondents’ application to set aside
the sale
in execution under case number 2919/2016.
29.2
Costs reserved.
_________________________
MF
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
Appearances
1.
For
the applicant: Adv JC Klopper
2.
Instructed
by: Corrie Nel Attorneys
3.
Telephone
Number: 015 291 4344
4.
For
the 1
st
-3
rd
Respondents:Adv Botes SC
5.
Instructed
by: Espag Magwai Attorneys
6.
Telephone
numbers: 015 297 5374
7.
For
the 4
th
Respondent: Adv J Hershensohn
8.
Instructed
by: Magda Kets Inc
9.
Telephone
numbers: 012 329 4518/6016
10.
Date
of Argument: 2
nd
August 2018
11.
Date
of Judgment: 24
th
August 2018