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[2015] ZAFSHC 218
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PBD Boeredienste (Pty) Ltd v Claassens N.O. and Others (2381/2014) [2015] ZAFSHC 218 (5 November 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : 2381/2014
In the matter between:-
PBD
BOEREDIENSTE (PTY)
LTD
Applicant
and
CAREL
JOHANNES CLAASSENS
N.O.
1
st
Respondent
GUSTAV
LOURENS CLAASSENS
N.O.
2
nd
Respondent
RIAAN
AHRENS
N.O.
3
rd
Respondent
HENRY
PETER JOHNSON
N.O.
4
th
Respondent
RETMIL
FINANCIAL SERVICES (EDMS) BPK
5
th
Respondent
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
6
th
Respondent
THE MASTER OF THE
FREE STATE HIGH COURT,
BLOEMFONTEIN
7
th
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
5
NOVEMBER 2015
[1]
These are applications for leave to appeal against the judgment of
Murray AJ. The parties are referred to as in the main
application. This application is dealt with on the written
submissions made by counsel, Mr JHD Bloem on behalf of the first
respondent and Mr P Uys on behalf of the applicant.
[2]
The applicant applied for an order cancelling two deeds of transfer
and for an order registering certain sectional title units
into the
name of the Anna Maria Magdalena Claassens Trust (the AMCC Trust).
[3]
The first respondent is the only trustee of the AMCC Trust. The
second respondent is the son of the first respondent.
The
second, third and fourth respondents are trustees of The
Lowerkruin Trust, in whose name the properties are at present
registered. The fifth respondent is Retmill Financial Services
(Pty) Ltd, a bondholder over the properties. The sixth
respondent is the Registrar of Deeds, and the seventh respondent is
the Master of the Free State High Court.
[4] On
25 June 2015 Murray AJ dismissed the application but ordered the
first respondent to pay the costs of the application in
his personal
capacity.
[5]
The first respondent filed an application for leave to appeal against
the costs order against him. Thereafter the applicant
filed a
notice of an application for leave to cross-appeal against the
dismissal of its application, together with an application
for
condonation for the late filing thereof. Condonation is not
opposed and should be granted. The applicant does not
oppose
the first respondent’s application for leave to appeal against
the costs order on the basis that it is in the interests
of justice
to allow the applicant to proceed with the cross-appeal.
[6]
One of the reasons why the applicant brought the present application
is to obtain an order for the transfer of the properties
into the
name of the AMCC Trust and to declare the properties specially
executable for the debt of about R220 000 owed by
the first
respondent to the applicant as appears from the founding affidavit.
A bond of R890 000 was registered over one
of the properties in
favour of the fifth respondent in 2013. If the property is
transferred to the AMCC Trust the third respondent,
against whom no
allegations of fraud are made, will lose its security. As Mr
Reinders pointed out in his heads of argument
before Murray AJ, the
applicant is not without remedy to get payment from the AMCC Trust.
Firstly it can obtain a
nulla
bona
.
Then it can apply for sequestration of the trust, after which a
liquidator can investigate the circumstances of the transfer
of the
properties and take appropriate steps. In my view there are no
reasonable prospects that another court will come to
a different
conclusion on the applicant’s claim.
[7] The conduct of the
first respondent is important to adjudicate the applicant’s
claim. The costs order was made because
Murray AJ censured the
conduct of the first respondent in the litigation. The
applicant contends that the fraudulent nature
of the transfers are
apparent from delay caused by the first respondent. However,
from the answering affidavit and annexures
it is apparent that delays
were caused by the legal complexities of the will.
[8] It
does not appear from the judgment that Murray AJ considered the costs
of the other respondents, including the fifth respondent.
There
are reasonable prospects that another court may find that the costs
order was not justified.
ORDER
1.
The first respondent is granted leave to appeal to the Full Bench of
this division against the
costs order made against him by Murray AJ.
Costs of the first respondent’s application for leave to appeal
are costs
in the appeal.
2.
The application for leave to appeal in the cross-appeal is refused.
The applicant (PBD Boeredienste)
is to pay the costs of the
cross-appeal.
_____________
A. KRUGER, J
On behalf of First
Respondent: Mr JHD
Bloem
Instructed
by:
Spangenberg Zietsman &
Bloem
BLOEMFONTEIN
On behalf of
Applicant:
Adv P Uys
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
wm/