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[2017] ZAFSHC 68
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Harris and Another v Burger N.O. and Another (786/2017) [2017] ZAFSHC 68 (18 May 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 786/2017
In
the matter between:
RUDOLF
JOHANNES
HARRIS
1
st
Applicant
[Identity
number:
[5...]]
RACHEL
SOPHIA ELIZABETH
HARRIS
2
nd
Applicant
[Identity
number:
[5...])
and
ZANDER
CHRIS BURGER N.O
1
st
Defendant
[BLUE
GINGER TRUST - IT 276/2009]
THE
MASTER OF THE HIGH COURT
2
nd
Defendant
HEARD
ON:
11 MAY 2017
JUDGMENT
BY:
RAMPAI, J
REASONS
GIVEN:
18 MAY 2017
[1]
The matter came to court by way of motion proceedings. The applicant
sought an order whereby the two agreements
concluded by
the parties were declared null and void. The alternative relief
sought was cancellation of those agreements.
The application
was, in a sense, unopposed - hence it was on the unopposed roll of
the general motion court.
[2]
The applicants sold their residential property to the first
respondent who in turn sold his to the applicants. The exchange
sales
were concluded prior to the institution of the current restorative
application on 15 February 2017.
[3]
The file history of the matter shows:
3.1
that the application was issued on 15 February 2017;
3.2
that it was served on the first respondent on or before 2 March 2017;
3.3
that the first respondent served and filed notice of his intention to
oppose the application on 2 March 2017;
3.4
that the applicants enrolled the matter on 23 April 2017 for hearing
on 11 May 2017;
3.5
that the second respondent's report pertaining to Blue Ginger Trust
IT 276/2009 was filed on 5 May 2017;
3.6
that the first respondent's attorney asked for a postponement on 10
May 2017 and
3.7
that the matter was duly listed on the unopposed roll of the general
motion court of 11 May 2017 as item number
42.
[4]
Before me on Thursday 11 May 2017 appeared Mr Grewar for the
applicants and Mr Olivier for the first respondent. The two legal
representatives could not agree on any of the proposals contained in
the first respondents' letter dated 10 May 2017.
[5]
Mr Olivier urged me to give the first respondent an opportunity to be
heard. He argued that unless the matter was postponed
as the first
respondent requested, the first respondent would be effectively
denied access to justice. Mr Grewar argued that the
first respondent
had been dragging his feet for far too long and that the applicants
were very frustrated.
[6]
In the founding affidavit, Mr Rudolf Johannes Harris, the co-seller
of the Lauw Wepener property, "anx hh7", and the
simultaneous co-purchaser of the Groenvlei property, "anx hh8",
averred:
"8.6
Burger het op die 9 Desember 2014 twee koopkontrakte getekent in
sy
hoedanigheid as trustee, ten opsigte
van
Louw
Wepener
en
Groenvlei,
terwyl die trustakte op daardie stadium bepaal het dag hy nie
gelyktydig as 'n trustee en begunstigde kan handel nie.
(my
emphasis)
8.7
'n
Afskrif
van die ooreenkoms van
Louw Wepener
word hierby aangeheg gemerk
aanhangsel
"HH7".
8.8
'n Afskrif van die ooreenkoms van
Groenvlei
word hierby aangeheg gemerk
aanhangsel
"HHS".
8.9
Burger was op daardie datum beide die alleen-trustee en 'n
begunstigde
van die trust en bygevolg is die transaksie nietig weens
sy onbevoegdheid om te handel en die trust te bind.It
[7]
•
On the strength of those material averments, it appeared to me
that the first respondent was not legally compent to alienate the
trust property known as Groenvlei seeing that he was both the trustee
and beneficiary of the Blue Ginger Trust - vide "anx
hh211
read with "anx hh311 to "anx hh6.
[8]
The first respondent signalled his intention to oppose the
application some 69 calender days before the date on which the matter
was heard. The applicants then waited and waited for the first
respondent's answering affidavit. They waited in vain. On 23 April
2017, some 52 calender days after the filing of the first
respondent's notice, the applicants served a notice of setdown. Again
there was no reaction from him. Hardly a day before the hearing the
first respondent wrote to ask for a postponement.
[9]
In my view the request for a postponement was not made in good faith.
It was yet another ploy to delay the matter. All these
indicated to
me that the first respondent had no seriously genuine intention to
oppose the application. He displayed complete disregard
for the rules
of procedure. This sort of a litigant's remissness undermines
the norms and standards designed to
enhance the
efficiency of the civil dispute resolution by way of public
adjudicative system.
[10]
These then are the reasons for the order I made. I suppose they
explain the order well. In view of the aforesaid considerations,
I
refused to have the application postponed. The first respondent did
not act like a serious litigant with a
bona
fide
defence. He only
has himself to blame for the refusal. The refusal is the harvest of
his neglect.
[11]
I note that the second leg of the order does not accurately reflect
my intention. I probably not pronounce the date on which
the parties
have to restore performances. The omission was an inadvertent
oversight. I had a specific date scribbled in my bench
book. In
determining an appropriate date, I took into account the reasonable
possibility that the applicants' residential property,
Lauw Wepener,
might currently be still occupied by innocent and lawful occupiers. I
would, therefore, revisit the previous order
by inserting a date in
paragraph 2 thereof.
[12]
In the circumstances, I hereby vary the previous order
mero
motu
to
read as follows:
12.1
The Lauw Wepener and Groenvlei agreements concluded by the parties
in
Bloemfontein on the 9 December 2014 are hereby nullified.
12.2
The effective date of restoration shall be Friday 30 June 2017.
12.3
The respondent pays the costs of the application.
__________________
MH
RAMPAI, J
On
behalf of applicants:
Adv Grewar
Instructed
by:
Adrie Hechter Attorneys
Bloemfontein
On
behalf of respondents:
Adv Olivier
Instructed
by:
Symington & De Kok
Bloemfontein