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[2015] ZAGPPHC 10
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Fourie and Another v Absa Trust Ltd and Others (66864/2014) [2015] ZAGPPHC 10 (23 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 66864/2014
Date:
23 January 2015
Not
reportable
Not
of interest to other judges
In the matter
between:
DONé
FOURIE
.........................................................................................................
First
Applicant
VANé
FOURIE
......................................................................................................
Second
Applicant
And
ABSA TRUST
LTD
...............................................................................................
First
Respondent
MARTHINUS
CHRISTOFFEL BARNARD N.O.
…....................................
Second
Respondent
PHIL MINNAAR
AUCTIONEERS GAUTENG CC
.......................................
Third
Respondent
AARCO JOINT
CIVILS
...................................................................................
Fourth
Respondent
TIM DU TOIT
& KIE
...........................................................................................
Fifth
Respondent
MASTER OF THE
SUPREME COURT, PRETORIA
.....................................
Sixth
Respondent
JUDGMENT
BAM J
(APPEARANCES: Adv J
G Cilliers SC for the applicant;
Adv J J Botha for
first and second respondents;
Adv T P Kruger for
the fourth respondent.
1. Due to time
constraints, I had to deal with more than 20 urgent applications
within 4 days, this judgment is not as comprehensive
as I would have
preferred it to be.
2. The Applicants,
in an urgent application, applied for an order prohibiting the
respondents from transferring a property purchased
by the fourth
respondent on 9 September 2014 at an auction held by the third
respondent, pending the finalisation of an application
to be brought
by the applicants against the respondents, within 30 days, for an
order to declare the sale of the property null
and void,
alternatively, unenforceable.
3.
The salient facts are as follows. The property initially belonged to
the deceased mother of the two applicants and two other
siblings.
They were the heirs of the property. Due to the fact that the heirs
were not ad idem what should happen to the property,
the executors of
the estate decided to sell the property on a public auction. The two
applicants, prior to the auction intimated
that they intended to
purchase the property. The offer made by the applicants was however
not accepted. It was accordingly decided
by the relevant parties that
the auction should proceed on 9 September 2014 at llhOO as
advertised. On the day of the auction the
applicants approached the
Court on an
ex
parte
basis
with an application to stop the auction. The application was
successful. A rule
nisi
issued
with a return date.
Before
the auction commenced the auctioneer, third respondent's officer, was
informally informed of the applicant's said urgent
application but
nevertheless proceeded with the auction. The property was sold to the
fourth respondent. The court order was handed
to the auctioneer only
after the auction. Subsequently the return date of the Rule
nisi
was
anticipated by the respondents and the order was dismissed. Despite
the threat of an urgent application in the beginning of
December 2014
and certain correspondence between the parties, no agreement was
reached. It appears that the transfer of the property
in the name of
the fourth respondent became imminent. This prompted the applicants
to lodge this application.
4. Mr Botha and Mr
Kruger submitted that the application was not urgent at all and that
it did not merit the attention of the urgent
court. In my view the
matter in fact became urgent after no agreement could be reached
between the parties in respect of the transfer
of the property which
was then looming.
5.
In regards to the basis of the applicant's case it was submitted by
Mr Cilliers that the interdict granted on 9 September 2014
effectively stopped the auction. The auction was therefore unlawful
and thus null and void. In countering this point Mr Botha submitted
that the original Rule
nisi
would
not have been granted if the presiding judge had been aware of all
the relevant facts. It was further submitted that the fact
that the
Rule was subsequently dismissed, by consent, is proof thereof.
6.
Although the auctioneer was not in possession of the court order at
the time of the commencement of the auction, he was acutely
aware of
the application for the interdict. There are conflicting versions
whether the auctioneer was indeed informed, before the
auction that
the relevant order had already been made. However despite the
auctioneer's admitted knowledge of the court proceedings
by the
applicants to obtain an order interdicting the auction, the
auctioneer nevertheless proceeded with the auction thereafter
without
determining the status of the application. This conduct was clearly,
to say the least, opportunistic and suspiciously
mala
fide
and
not something which should be expected from any auctioneer. The
auctioneer surely realised that in proceeding with the sale
he could
have been violating a court order. In my view it is inexplicable why
the auctioneer proceeded with the auction regardless
of the
consequences and repercussions.
7.
Objectively the auction was null and void. The fact that the
interdict was rescinded on the anticipated return date by consent,
is
immaterial. The dismissal of the interim order had to follow in view
thereof that a confirmation of the order would have amounted
to a
brutem fulmen
order
that could have had no effect at all. The auction had already been
finalised.
Mr Botha's argument
that the dismissal of the interim order by consent proved that the
order should never have been granted is therefore
fatally flawed.
8. The applicants,
soon after the auction, voiced their dissatisfaction with the state
of affairs. I am in agreement that the only
real remedy that remained
was for the applicants to lodge the present application.
9. This is however
not where the matter ends. The question that has now arisen is what
the applicants intend to achieve and whether
it is viable and whether
there are any prospects in that regard. In this regard several
arguments were advance by Mr Cilliers.
One of the issues raised was
that some prospective buyers, when they learnt about the interdict on
the morning of the auction,
apparently decided not to participate in
the auction. In my view this is material. It surely could have had a
detrimental effect
on the eventual amount the property was sold for.
10. Taking into
account the conduct of the auctioneer I am satisfied that the
applicants should succeed with their application and
to be granted a
limited time to lodge their intended application.
11. Mr Botha's
contentions in respect of the respondents' counterclaim to set aside
the initial order made by this Court on 9 September
2014, need no
further comment. It is, in any event totally unsubstantiated.
12. The auctioneer,
third respondent, at all relevant times represented the first and
second respondents at the auction. The first
and second respondents
became aware of the factual situation but steadfastly maintained that
the auction was lawful.
13. The fourth
respondent, as an interested party, was cited in the application but
was actually not a party to the dispute between
the applicants and
the first and second respondents in respect of the question whether
the auction was null and void. Why the fourth
respondent really
joined in that dispute never became clear. Although it is appreciated
that the fourth respondent was entitled
to protect its rights, its
contentions, submitted by Mr Kruger, mainly turned upon the issue
whether the applicants were entitled
to lodge this application on an
urgent basis during court recess. Mr Kruger submitted, in sometimes
uncalled for strong terms,
that if the Court should grant the
application it would amount to a total disregard of the Practice
Rules. These contentions were
without substance.
14. In respect of
the costs of the application, as far as the applicants and the first
and second respondents are concerned, in
view of the order I intend
to make, should be reserved. In regards to the fourth respondent's
costs I am of the view that it should
bear its own costs.
ORDER
1.
The first and second respondents are prohibited to effect transfer of
the property known as Plot 103, Berg Avenue, Hartbeeshoek,
Amandasig,
Akasia Pretoria North, Gauteng from the Estate of the Late Estelle
Veronica Chamberlain to ARCO Joint Civils and/or
any person or entity
pending the finalisation of an application to be brought by
Applicants against respondents for an order to
declare the sale of
the mentioned property on the 9
th
of September 2014 on an auction held by third respondent to be null
and void
alternatively
unenforceable.
2. The applicants
are ordered to institute the proceedings referred to in paragraph 1
above within 14 days of the date of this order.
3. Costs in respect
of the applicants and first and second respondents is reserved.
4. Fourth respondent
is ordered to pay it's own costs in respect of this application.
A J BAM
JUDGE OF THE HIGH
COURT
23 January 2015