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[2015] ZAGPPHC 312
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K20105406 (Pty) Limited v Botha N.O. and Others (12226/2015) [2015] ZAGPPHC 312 (10 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
12226/2015
DATE: 10 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
K201405406
(PTY)
LIMITED
.....................................................................................................
APPLICANT
and
DEON
MARIUS BOTHA N.O.
….....................................................................................
1
st
RESPONDENT
CHRISTIAAN
FREDERIK DE WET N.O
….................................................................
2
nd
RESPONDENT
MATOME
STANLEY MPHAHLELE N O
…................................................................
3
rd
RESPONDENT
STRYDOM
& BREDENKAMP
INC
................................................................................
4
th
RESPONDENT
VARSIGYN
(PTY)
LIMITED
...........................................................................................
5
th
RESPONDENT
REGISTRAR
OF DEEDS,
PRETORIA
...........................................................................
6
th
RESPONDENT
JUDGMENT
RAULINGA J
[1] The Applicant
brought an urgent application, seeking an interdictory relief pending
the outcome of an action to be instituted
against First, Second,
Third and Fourth Respondents, in the following terms:
1.1 The First,
Second, Third and Fifth Respondents are interdicted and restrained
from taking any steps to effect, and from effecting,
registration of
transfer into the name of the Fifth Respondent of the immovable
properties being Units 3, 4, 5, 6,7, 8, 16, 17,
18, 19, 22, 23, 26,
27 Scheme Number 911/2008 of 55 Tomglewood, Portion 209 of the farm
Zeekoegat 296, Registration IR, Dam Street,
Roodeplaat ("the
immovable properties").
1.2 The Order in 1.1
above shall operate as an interim interdict pending the outcome of
the action to be instituted by the Applicant
against the First,
Second, Third and Fifth Respondents within 30 days from the date of
the order for the following relief:-
1.2.1 Declaring that
the sale agreement, Annexure "FA4" to the Applicant's
founding affidavit, and the addendum, Annexure
"FA11" to
the Applicant's founding affidavit, is valid and binding on the
Applicant and the First, Second and Third Respondents.
1.2.2 An Order
that:-
1.2.2.1 The First,
Second and Third Respondents take all necessary steps
;
including signing all necessary documents to effect registration of
transfer into the name of the Applicant of the immovable properties.
1.2.2.2 In the event
of the First, Second and Third Respondents failing to comply with the
order in 1.2.2.1 above, authorising the
sheriff to take all necessary
documents to effect registration of transfer into the name of the
Applicant of the immovable properties.
1.2.3 Costs of suit.
1.2.4 Further and/or
alternative relief.
1.3 That the costs
of this application be in the cause in the action referred to in 1.2
above.
[2] The Applicant
abandons the relief sought in its notice of motion and in the
founding affidavit for a final relief in the first
instance and
interim relief in the alternative. The Applicant does not persist in
seeivng final relief and instead seeks interim
relief as stated
above. The Forth Respondent does not oppose the application, whereas
the Fifth Respondent supports the contention
of the First - Third
Respondents.
[3] On the 04
th
November 2014, the Applicant as nominee for a company formed or to be
formed concluded a written sale agreement with the liquidators
("First - Third Respondents") for the purchase of the
immovable properties. Annexure "FA3" is a copy of the
sale
agreement, being the conditions of sale signed on 21 December 2014 by
the Applicant and on 04
th
November 2014 by the First
Respondent (the sale agreement"). The effective date of the
conclusion of the sale agreement is
therefore the 04 November 2014.
It is the contention of the Applicant that the First Respondent in
signing the sale agreement was
authorised to do so on behalf of all
liquidators. The First, Second and Third Respondents are the joint
liquidators of ADPOINT
TRADING 77 (PTY) Ltd (in liquidation)
(ADPOINT)
[4] Some of the
salient terms of the sale agreement, are inter alia:-
4.1 The purchase
price of the immovable property in the sum of R6 500 000.00 plus VAT
was payable as following:-
4.1.1 A
non-refundable deposit of the purchase price upon signing of
conditions of sale and payable to the auctioneer for the benefit
of
the seller, (clause 2.1)
4.1.2 The balance by
registration of transfer on the name of the purchaser would be
obliged to furnish an approved Bank or Financial
Institution
guarantee within 30 days of confirmation of the sale, for the full
balance of the purchase price, together with interest
thereon
calculated monthly at the rate of 1% of the outstanding balance of
the purchase price from date of confirmation until date
of
registration of transfer, which guarantee would be payable to the
Seller's attorney on demand, (clause 2.3)
4.1.3
Should any party fail to comply with any of the terms and conditions,
as set out in the sale agreement and that the defaulting
party did
not remedy such breach within a period of 7 business days after
written notice has been given to the defaulting party
at its chosen
domiciiium,
calling
upon the defaulting party to remedy such breach, then the aggrieved
party would be entitled to any other remedies available,
to cancel
the sale by way of written notice either by fax or per hand or
registered mail, claim specific performance in terms of
the sale
agreement or claim damages from the defaulting party, (clause 7)
[5] It is common
cause that the Applicant failed to furnish the bank guarantee in
terms of clause 2.3 of the sale agreement within
30 days of the
conclusion of the said agreement. It is also common cause that an
addendum ("FA10"), was signed by the
Applicant on the 09
January 2015 and the first Respondent on 19 January 2015, however it
is disputed by the Respondents that such
a document culminated in an
amendment of the sale agreement which extended the time period for
the furnishing of the guarantee
to be within 72 hours from 19 January
2015, the date of the conclusion of the addendum. The Applicant is
adamant that a copy of
the addendum was personally delivered to the
offices of Corporate Liquidators and handed to Mr. Lourens Stander,
and further that
it was signed by the First Respondent on behalf of
all liquidators. The addendum was attached to an email received by
the Applicant
on the 19 January 2015 and signed by the First
Respondent which states the following:-
"Vind hierby
angeheg die addendum tot die koopkontrak onderteken deur Mnr Botha".
Mr Botha is the First Respondent
[6] Notwithstanding
the clear terms of clause 2.3 of the sale agreement amended as per
the addendum, being that the guarantee had
to be submitted by the
Applicant within 72 hours of 19 January 2015, i.e by midnight on 22
January 2015, (so the Applicant contends)
on 20 January 2015 the
Fourth Respondent addressed a letter to PJ Kleynhans Attorneys on
behalf of the Applicant in terms whereof
the Fourth Respondent
advised that unless payment was made within 48 hours from receipt of
their letter, the Fourth Respondent
held instructions to cancel the
sale agreement. The sale agreement was subsequently cancelled on the
29 January 2015 per letter
from the Fourth Respondent.
[7] The Applicant
alleges urgency of the application on the basis that transfer of the
immovable property into the names of the
Fifth Respondent is
imminent. However the First Respondent denies that the matter is
urgent and avers that the transfer documents
have not been lodged
with the Sixth, Respondent who is the conveyencing attorney. The
submission by the First Respondent is of
no moment in that the First
to Fourth Respondents may continue to lodge an application for
transfer since there is no guarantee
with the Applicant that the
transfer of the immovable properties is imminent, which renders the
matter urgent.
[8] The sale
agreement between the liquidators and the Fifth Respondent was signed
on behalf of the Fifth Respondent on the 05 December
2014. It is
therefore clear that the liquidators (First to Third Respondents)
sold the immovable properties even before the Fourth
Respondent on
behalf of th»; liquidators placed the Applicant.on terms to
provide the guarantee within 7 days, on the 08
December 2014. It is
also important to mention that the copy of the sale agreement between
the liquidators and the First Respondent
is not signed by any of the
liquidators and no other copy has been put up. I mention this because
the First Respondent disputes
that the addendum is valid because it
was not signed by the other liquidators. It seems to me that the
modus operandi of the First
- Third Respondents is that the First
Respondent signed on behalf of all the liquidators. The fact that the
Applicant was only
placed on terms after the properties were sold to
the Fifth Respondent, plagues the arguments that the Applicant had
breached the
agreement which culminated in the cancellation of the
agreement. ,
[9]
I am of the view that the addendum is valid and confirmed by the
modus
operandi
of
the First Respondent who is found to have signed all the documents on
behalf of the other liquidators. The allegations by the
First
Respondent that he was unable to obtain the concurren.cG of the other
liquidators and that one of the liquidators was incapacitated
by
virtue of unknown illness, cannot he countenanced. The averments of
the First Respondent are exacerbated by the production of
a document
signed by all liquidators only during the hearing.
[10] The First,
Second, Third and Fifth Respondents submit that in terms of Section
382(1) of the Companies Act 61 of 1973 ("Old
Companies Act"),
where two or more liquidators have been appointed they shall act
jointly, in performing their functions as
liquidators and shall be
jointly and severally liable for every act performed by them jointly.
The liquidators contend that section
381(1) was not complied with,
and that the addendum is invalid.
[11] The submissions
of the Applicant are supported by what was stated in Henochcberg on
the Companies Act:
"A
plurality of liquidators must act jointly in performing their
functions as such (see Murphy & Benjamin NNO V Semphill
1954(3)
SA
450(W);
Millman NO V Goosen 1975(3}
SA
141
(0); Powell V Leech
[1997] 4 ALL SA 106(W)
at 117). As each is
incapable of delegating his powers, they cannot jointly delegate
their joint powers to one of them, or to another
(Powell case supra
at 117-118). But they may
,
authorise
one to execute a document on behalf of all (cf In re London
& Mediterranean Bank, Ex parte Birmingham Banking
co (1868)
LR3 ch App 651 at 653-654). And it is quite competent for them to
delegate administrative acts and functions to another
person, as
opposed to the delegation of their powers as such generally and
matters of discretion, which they must, perform themselves
jointly
and personally, and may not delegate (R Miller V Natcoc Investment
Holding Company
[2010] 4 All SA 44
(SCA at Pomars 14.16". Page
313.
It therefore
follows that when the First Respondent signed the addendum he had
the- authorisation of the other liquidators. It is
strange that the
liquidators acted jointly in concluding the sale agreement and did
not act jointly when it come to the addendum.
My conclusion is that
the addendum is valid, in that in the letter from the Third
Respondent dated 20 January 2015 it is expressly
stated that the
First Respondent only signed the addendum.
[12] The Fifth
Respondent contends that each of the liquidators had to sign the sale
agreement and that if any one liquidator signed
alone this required
written authority of the others as per
Section 2(1)
of the
Alienation
of Land Act 68 of 1981
. However, in Howat Motors (PTY) Ltd Waterson
1963(3) SA 669 (T) it was stated that the position of a provisional
liquidator can
be compared with that of the manager or managing
director of the company. In fact the liquidators as well as the Fifth
Respondent
conceded to the fact that as envisaged in
Section 2(1)
of
the
Alienation of Land Act one
liquidator does not require the
written authority of the other to sign a deed of alienation. This was
confirmed in AMS Marketing
Co (PTY) Ltd V Holzman 1983(3) SA 263(W)
at 269D-270A.
[13] I am in
agreement with the Applicant that as at 20 January 2015, the
Applicant was not in breach of the sale agreement as amended.
The
Applicant would only be in breach of the sale agreement as amended
after midnight on 22 January 2015. There was no basis for
the
Respondents to cancel the same agreement in the event the guarantee
was not submitted within 48 hours of 20 January 2015, or
thereafter
absent the Applicant being placed on terms pursuant to clause 7 of
the sale agreement. The fact that the Applicant had
not furnished
guarantee by 29 January 2015 did not give the liquidators a right to
cancel the sale agreement. Therefore the sale
agreement is valid and
binding on the liquidators and the Applicant.
[14] While the
liquidators are correct in stating that the Applicant was obliged to
furnish an approved bank or financial institution
guarantee, the fact
of the matter is that payment was available in the form of money in
the bank account of the Applicant's Attorney
which could have been
paid immediately to the liquidators on demand. The money was kept in
an account of the Applicant's Attorney
with Standard bank. The
argument of the liquidators is a mere technicality, which cannot be
sustained.
[15]
In an application for a temporary interdict, Applicant's right need
not be shown by a balance of probabilities; it is sufficient
if such
right is
prima
facie
established,
though open to some doubt. The proper manner of approach is to take
the facts as set out by the Applicant together
with any facts set out
by the Respondent which Applicant cannot dispute and consider
whether, having regard to the inherent probabilities,
the Applicant
could on those facts obtain final relief at trial............Webster
V Mitchell 1947 1186 (WLD) and also the different
requirements for
any interim interdict interact and where the Applicant for such an
interdict has established a strong
primo
facie
right,
the Court in the exercise of its discretion may place less emphasis
on the other requirements (Harms Civil Procedure in the
Supreme Court
at plO). I am convinced that the Applicant has established a strong
prima
facie
right
and must be granted the relief sought.
[16] I accordingly
would grant the application with costs to be in the cause in the
action referred to in 1.2 above.
T J RAULINGA
JUDGE: GAUTENG
DIVISION, PRETORIA