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[2015] ZAKZDHC 20
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Venalex (Pty) Limited v Vigraha Property CC and Others (5452/2014) [2015] ZAKZDHC 20; [2015] 2 All SA 645 (KZD) (10 March 2015)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 5452/2014
In
the matter between:
VENALEX
(PTY)
LIMITED
..................................................................................
APPLICANT
and
VIGRAHA
PROPERTY
CC
...................................................................
FIRST
RESPONDENT
NEDBANK
LIMITED
.......................................................................
SECOND RESPONDENT
REGISTRAR OF
DEEDS
....................................................................
THIRD RESPONDENT
JUDGMENT
Delivered
on: Tuesday, 10 March 2015
OLSEN
J
[1]
This case concerns the enforceability of a written agreement in terms
of which the applicant contends it purchased immovable
property from
the first respondent. The applicant seeks orders declaring the
agreement binding, directing the first respondent
to do all things
necessary on its part to bring about transfer of the property to the
applicant, and for costs. The first
respondent resists these
claims; and in a counter-application seeks an order ejecting the
applicant from the property, the applicant
already having taken
occupation of it. The parties are agreed that if the
application is granted then the counter-application
must be
dismissed; and that the counter-application must be granted if the
application is dismissed.
[2]
On 21 and 22 January 2014 a document headed “Agreement of Sale
and Purchase”, which described the property at issue
in this
case, was signed on behalf of the first respondent as seller and by
three men who shared business interests, Messrs Betts,
Morgan and
Glasspool. These three are the directors of the applicant.
They are also the directors of a company called
Betts Construction
(Pty) Limited which, according to the founding papers, is a
substantial construction company. The three
decided that a
property should be acquired and let to their construction company in
order to accommodate its head office.
Their plan was to house
the property in a separate company. That is what led to the
execution of the document to which I
have referred on 21/22 January
2014. For the sake of convenience I will refer to this document
as the “original agreement”.
There is no dispute
about the fact that in its original form it was valid and binding.
[3]
Clause 3 of the original agreement is headed “The
Purchaser/s”. Adjacent to this heading the words “Pty/Ltd
to be formed: Directors” are inserted in manuscript.
Beneath the heading in sub-clauses 3.1, 3.2 and 3.3 are the full
names of Betts, Morgan and Glasspool and their identity numbers.
These are inserted in manuscript. The original blank
printed
form simply contained the heading and provided two of the three
sub-clause numbers, and space for the insertion of the
identity
numbers of two purchasers. (Manuscript alterations made similar
provision for the insertion of the third purchaser’s
name and
identity number.)
[4]
Clause 17 of the original agreement is headed “Capacity of
Purchaser”. Sub-clause 17.1 reads as follows.
“
Should
the PURCHASER sign this agreement in their [sic] capacity as a
Director/Member/Trustee for a Company or Close Corporation
to be
formed, then the PURCHASER shall be personally liable in terms of
this Agreement should the Company, Close Corporation not
be formed
within a period of thirty (30) days of the date of signature hereof
or if the Company or Close Corporation fails to ratify
and adopt this
Agreement within a period of seven days of date of registration or
incorporation.”
Sub-clause
17.2 goes on to provide that the purchasers bind themselves as
sureties:
“
with
the Company, Close Corporation or Trust for the due fulfilment of all
the obligations of the Company, Close Corporation or
Trust in terms
of this Agreement”.
Sub-clauses
17.1 and 17.2 are not models of clarity. It is not clear why a
trust features in sub-clause 17.2, but nothing
seems to turn on that.
[5]
After the original agreement was signed the three businessmen
consulted their accountant who pointed out that the registration
of a
new company would take time; and advised that a better course would
be to use a shelf company; that is to say one already
incorporated
and available off the shelf as a juristic entity which had not yet at
any stage entered into any business. This
advice was accepted
and the applicant is the shelf company. Its shares were
acquired and the three businessmen became its
directors.
[6]
The original agreement provided that the date of occupation would be
agreed with the seller. The sole member of the seller,
Vigraha
Property CC, was a Dr Mahabeer. The three businessmen wanted
access to the property in advance of transfer and this
was discussed
with Dr Mahabeer who was willing to accede to it. As a result,
and presumably at the request of the three businessmen,
the appointed
conveyancers prepared an addendum to the original agreement. At
the same time two other documents were prepared,
(a)
a document headed “Nomination and
Acceptance” which was executed by Messrs Betts, Glasspool and
Morgan in terms of which
they nominated the applicant as the
purchaser of the property; and
(b)
a resolution of the applicant which
recorded its acceptance of its nomination and its decision to buy the
property and to ratify
the agreement which had been concluded by its
directors on 21/22 January 2014.
[7]
The addendum to the original agreement dealt with the subject of
occupation. It appears to have been sent unsigned to
the first
respondent as Dr Mahabeer signed a different printed version of the
document to the one signed on behalf of the applicant.
Of
importance is the fact that the addendum describes the applicant as
the purchaser.
[8]
The addendum was signed on behalf of the first respondent on 4
February 2014. The document nominating the applicant as
purchaser, the resolution of the applicant to which I have referred,
and the other copy of the addendum were signed on 5 February
2014.
The first two documents were signed by Messrs Betts, Glasspool and
Morgan as nominators in the one case and as directors
in the other;
and they also signed the addendum which indicated that they were
signing “for Venalex (Pty) Limited”
(i.e. the applicant).
[9]
When Dr Mahabeer signed the addendum on behalf of the first
respondent he made a manuscript insertion in clause 3 of the
document.
Presumably because they were unaware that he had done
so, the directors of the applicant did not make a similar manuscript
addition
to the form of the addendum which they signed. This
gave rise to a subsidiary issue in the case, as to whether the
addendum
was valid.
[10]
The applicant took occupation of the property. The price was
secured, and transfer of the property ought to have taken
place.
But for some reason which, un-contradicted by the first respondent,
the applicant puts down to “seller’s
remorse”, the
first respondent did not wish to proceed with the sale. It
accordingly adopted the view that there was
no binding agreement with
the applicant because it was a company already in existence when the
original agreement was signed.
The first respondent’s
argument goes as follows, and is the principal issue in the case.
The signatories for the “purchaser”
had not purported to
represent the applicant, an existing company. They had sought
to conclude a pre-incorporation contract
as contemplated by
s 21
of
the
Companies Act, 2008
. As the applicant was already at the
time incorporated it did not qualify as a company entitled to ratify
the agreement and
take on the rights and obligations of purchaser
under it. In addition the first respondent contended that the
demand by the
applicant for transfer amounted to a repudiation of the
original agreement and it was stated that the repudiation was
accepted.
(As will be seen, given the view I take of this case,
there is no need for me to deal with the question as to whether there
has
been a repudiation. I merely mention that, as I read the
contract, if the main issue were to be resolved in favour of the
first respondent, then the applicant’s three directors in their
personal capacities are the purchasers of the property.
They
are not personally parties to this litigation; and the issue as to
whether they personally have repudiated their obligations
under the
contract was not canvassed on the papers).
[11]
I turn to the main issue between the parties. In doing so I
will ignore for the time being the implications of the addendum
to
the original agreement and the dispute over whether the addendum was
in any event valid.
[12]
The applicant approaches the court on the basis that, whilst it is
correct that it was intended that a company would be “formed”,
and that it would take on the mantle of purchaser, and receive
transfer of the property, there is no reason to jump to the
conclusion,
as the first respondent has, that the relevant
contractual provisions contemplated the engagement and implementation
of the provisions
of
s 21
of the
Companies Act, 2008
. The
applicant argues that upon a fair and proper construction of the
provisions of the contract what was contemplated was
a
stipulatio
alteri
which envisaged the rights and
obligations of the purchaser being taken up either by a company
already incorporated or by one not
yet incorporated.
[13]
For the first respondent it is argued that the words “to be
formed”, where they appear in the insertion in clause
3,
indicate that the company which may as of right take up the rights
and obligations of purchaser under the original agreement
had to be
one not yet incorporated at the date of conclusion of the original
agreement.
[14]
Before examining the original agreement it is instructive to take
note of the quality of the distinction which the first respondent
seeks to draw between a newly incorporated company and a shelf
company. In the former case, immediately upon incorporation
the
company will be an entity which has not previously participated in
any business. Its nominal share capital aside, its
balance
sheet would be a clean slate. In the case of a shelf company
precisely the same condition would obtain. If
one ascribes to
the first respondent an intention only to allow such a “clean”
company to take on the rights and obligations
of purchaser under the
agreement, then it makes no difference whether the company is newly
incorporated or taken off the shelf.
This distinction without a
difference was noted in a different context in
Offit
Enterprises (Pty) Ltd & Another v Coega Development Corporation &
Others
2010 (4) SA 242
(SCA). In
the context of a dispute over whether certain land could be
expropriated on behalf of a juristic person, the question
arose as to
whether the Coega Development Corporation was a juristic person
“established by or under any law for the promotion
of any
matter of public importance”. It was argued that, as the
Corporation had been “established” as a
mere property
owning company, it could not have been “established” for
the requisite matter of public importance.
In that
context the court said the following at para 20.
“
However,
that is an artificial meaning to give to the notion of
establishment. It can surely make no difference whether a
company is formed specifically for a particular purpose, or is
acquired as an “off the shelf” company from a firm of
auditors, or is acquired from its existing shareholders as a dormant
entity and its memorandum and objects altered to fit its new
purpose,
as happened in the present case.”
[15]
Of course, in the case of both a newly incorporated company and a
shelf company, where, as here, a contracting party such as
the first
respondent does not place any constraints upon the “clean”
company participating in any business in advance
of payment of the
price, there is no guarantee that the directors of either type of
entity will leave the purchasing company in
the unsullied condition
in which the company concerned undertakes to meet the obligations
under a contract such as the one in issue
here. But that risk
is the same in each case.
[16]
The conclusion must be that on either party’s understanding of
the contract the first respondent factually got what it
bargained for
by way of the quality of the substituted purchaser. Given that
the applicant contends that, within the context
of the present
transaction, there is no difference between a newly incorporated
company and a shelf company, and given that the
first respondent does
not identify any difference save for the date of incorporation of the
company, it seems clear that if at
the time of contracting the
parties had considered the question as to whether the company had to
be incorporated after the agreement,
or whether a shelf company could
be used, the answer would have been that either would do.
[17]
The essential difference between the opposing contentions of the
parties concerning the proper construction of the agreement
lies
between:
(a)
the first respondent’s contention
that the three businessmen acted only as agents, and as such only for
a non-existent principal;
and
(b)
the applicant’s contention that the
three businessmen were not merely agents, but acted in their
individual capacities stipulating
for the role of “purchaser”
to be taken as of right by a company to be formed.
[18]
The predecessor once removed of
s 21
of the
Companies Act, 2008
was s
71 of the Companies Act, 1926 (1926 Act). The purpose of s 71
of the 1926 Act was discussed in
Ex
Parte Vickerman and Others
1935 CPD
429.
In that case the registrar of deeds had refused to
register a transfer of property to a company incorporated after the
contract
for the sale of the property had been concluded because the
requirement of s 71 of the 1926 Act, that the memorandum of the
company
should contain as one of its objects the adoption or
ratification of the contract, had not been satisfied. The
question was
whether the transfer could nevertheless take place.
Watermeyer J referred to
McCullogh v
Fernwood Estate Ltd
1920 AD 204
which
held that a company could by adoption or ratification take up a
contract made on its behalf before it existed where the contract
had
been made by a person acting personally and not as agent. The
learned Judge held at 430 that s 71 “was not intended
to
curtail the right of a company to adopt a contract made for its
benefit, but to extend that right to cover the case where the
person
acting for the company about to be formed was acting as agent and not
individually.” As the strict requirements
of s 71 had not
been followed, the question which had to be answered was whether the
persons who contracted for the rights and
obligations of buyer did so
individually or as agents for a company to be formed.
Watermeyer J decided at 431 that they “acted
in their
individual capacities, but stipulating for a company about to be
formed”. He continued as follows.
“
The
only difficulty is the heading of the contract, in which the
purchasers are described as purchasers for and on behalf of a limited
liability company about to be formed. That,
prima
facie
, looks as if they were acting as
agents for the company about to be formed. But from the terms
of the contract it appears
that the purchasers agreed personally to
pay £500 on the signing of the contract and agreed personally
to take possession
of the property, and personally to pay transfer
duty to the Government and to pay rates and taxes, and personally
undertook, should
the company not be registered by the time transfer
had to be taken, to take transfer in their respective names jointly;
and undertook
to pay the sum of £2,200 in cash against
registration of transfer as referred to in paragraph 8. All
these things show
that they were acting as principals and undertaking
personal liabilities, and not merely contracting as agents for a
company about
to be formed. That being the case, it seems to me
that the company, independently of
sec.
71
of the Companies Act, could adopt
and ratify this contract, and consequently it seems to me that the
applicants are entitled to
an order directing the Registrar of Deeds
to register transfer.”
[19]
In
McCullogh v Fernwood Estate Ltd
the court was concerned with a contract in terms of which a natural
person had contracted “acting as trustee for and on behalf
of
the limited liability company in the course of formation”.
The contract was to the effect that a new company would
have the
opportunity of purchasing the property by a fixed date for a fixed
price. But if the date passed without the company
coming into
being or not adopting the contract then the natural person would be
the buyer of the property. Innes CJ described
that arrangement
as follows (at 209).
“
Clearly
he was acting personally and not as an agent, in order to secure for
the benefit of the company in the first instance, or
alternatively
for himself, what he considered a favourable bargain.”
[20]
The first thing to be noticed about the present contract is that it
does not record that the three businessmen are acting as
“trustees”
for a company to be formed (as in
McCullogh
);
or that they are acting “for and on behalf of” a company
to be formed (as in
Vickerman
).
Looking then at clause 3 (to which I have already referred), the
printed form is designed to have the names of multiple
purchasers
inserted in sub-clauses. The names which appear in those sub-clauses
are those of the three businessmen. The words
“Pty/Ltd to
be formed: Directors” are inserted adjacent to the heading of
clause 3 in what the designer of the form
intended to be vacant space
on the page. Counsel for the applicant described the
introduction of the concept of a company
to be formed as somewhat
cryptic in the circumstances. That observation is correct.
Nothing said in clause 3 discloses
that the three businessmen are
acting only as agents, although one is driven to the conclusion
(which is accepted on both sides)
that they were stipulating at least
for a right on the part of a company to be formed to take up the
mantle of purchaser.
[21]
The signatures of the three businessmen appear on the last page of
the document. They signed on 21 January 2014.
They signed
above the printed word “PURCHASER/S”. Their
signatures are unqualified. No representative capacity
is
apparent on that page.
[22]
In the structure of the agreement there are marked similarities to
features of the contract considered in
Vickerman
.
In terms of clause 17.1 (referred to earlier) the businessmen bound
themselves to be personally liable if a company was
not formed within
30 days of the date of signature of the agreement. The deposit
of R1 000 000 (on account of the
purchase price of
R2 250 000) had to be paid by 4 February 2014, well before
the lapse of the 30 day period. As
to the balance of the
purchase price, if it did not become the subject of an approved
mortgage bond by 11 February 2014, it had
to be paid to the
conveyancers no later than 18 February 2014; again in advance of the
30 day period referred to in clause 17.
[23]
Judged by the standards set in
McCullogh
and
Vickerman
the three businessmen in this matter acted in their individual
capacities, but stipulated for the substitution of a company in
their
place if that could be achieved by a fixed date. As a matter of
law the question as to whether the company was one
which existed or
did not exist at the time of conclusion of the contract is therefore
irrelevant. The remaining question
is whether the contract
itself rendered it relevant; with the result that only a company
incorporated after the conclusion of the
original agreement could
take on the rights and obligations of purchaser under the agreement.
[24]
The answer to that question turns on the meaning of the words
“Pty/Ltd to be formed: Directors” appearing adjacent
to
the heading of clause 3 of the agreement. Counsel for the
applicant call in aid of their argument the widely quoted paragraph
18 of the judgment in
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA). Counsel argue that the word “formed”,
where used in this context, does not have a precise meaning.
It
is argued that at best for the first respondent the word is used to
convey an intention that the company stepping into the shoes
of the
purchaser should have a clean balance sheet of the type shared by
newly incorporated companies and shelf companies.
As part of
the context, it is argued that one should take into account that
there is in fact no difference between those two types
of companies.
As discussed earlier, if the parties applied their minds they would
have said that either would do. That
would have been
business-like and sensible. Why would the parties
concluding the contract intend to allow one type
of company to take
up the role of purchaser, but not the other, to no advantage for
either of them? If there is a difference
then it is the
advantage the accountant saw in using a shelf company, that it would
avoid delay. The provisions governing
payment of the purchase
price illustrate a common intention to achieve certainty without
delay as to performance of the purchaser’s
obligation to pay
the price.
[25]
In answer to the applicant’s reliance on the case of
Natal
Joint Municipal Pension Fund
counsel
for the first respondent refer to the passage in paragraph 18 of the
judgment where it is stated that “[w]hatever
the nature of the
document, consideration must be given to the language used in the
light of the ordinary rules of grammar and
syntax; …”.
Accepting that invitation one notes immediately that the first
respondent’s argument would
have been that much easier to
advance if the word “incorporated” had been used in place
of the word “formed”.
[26]
In my view the word “formed”, where it appears adjacent
to the heading of clause 3 of the original agreement, does
not have a
specific and narrow meaning equivalent to the word “incorporated”.
In explaining that view, I borrow
first from the words of the
introduction written by R C Williams to Vol 4 Part 1 of
Lawsa
(2ed) which deals with companies.
“
Generally,
“company” means an association of persons formed for a
common, usually commercial, purpose. The word
came to connote a
commercial association with a large, continuously altering
membership, thereby reflecting something of the origins
and
development of company law. But, outside of statutory
definition, the word “company” has no precise legal
content, and in particular it does not necessarily connote an entity
that has been incorporated by the persons who are associated
in the
enterprise. Outside of the statutory definition, “company”
is thus a concept that is in some respects
wider and in other
respects narrower than the scope of this title.”
[27]
With that in mind it is instructive in my view to see that even
within the statutory context of the Companies Act, 1973, the
word
“formed” was not consistently regarded as conveying the
same thing as the word “incorporated”.
Section 32
of that Act read as follows.
“
Any
seven or more persons or, where the company to be formed is a private
company, any two or more persons associated for any lawful
purpose
or, where the company to be formed is to be a private company with a
single member, any one person for any lawful purpose,
may form a
company having a share capital or a company limited by a guarantee
and secure its incorporation by complying with the
requirements of
this Act in respect of the registration of the memorandum and
articles.”
[28]
If, as recently as the commencement of the
Companies Act, 2008
in May
2011, our statutory law recognised that the “formation”
of a company was not necessarily to be equated to its
incorporation
with limited liability under a statute, there seems to be no reason
at all to ascribe to ordinary persons of business,
making a
manuscript insertion on a printed form, an intention to bind
themselves to the technical meaning of the word “incorporated”
as it is used in
s 13
of the
Companies Act, 2008
, when they actually
used the word “formed”. I can see no reason why the
acquisition of a shelf company could
not legitimately be employed as
a means to achieve the intended incorporated status of a company
“formed” by and amongst
the three businessmen who signed
the original agreement. That does no offence to the word
“formed” where it appears
in clause 3 of the original
agreement.
[29]
I conclude that the principal issue in this case must be decided in
favour of the applicant.
[30]
I turn briefly to the question of the addendum to the original
agreement which, it will be recalled, recorded the applicant
as the
purchaser. Counsel for the first respondent resisted the
conclusion that the addendum recorded in writing the first
respondent’s acceptance of the applicant as purchaser on two
bases.
(a)
Firstly, it was argued that the addendum
does not in its provisions record an intention to amend the agreement
by substituting the
applicant as purchaser.
(b)
Secondly, it was argued that the addendum
is of no force and effect in the light of the provisions of the
Alienation of Land Act, 1981
because the manuscript insertions made
by the first respondent on the version of the addendum signed on its
behalf were not counter-signed
by those who purported to sign on
behalf of the applicant.
[31]
Whilst it is correct that the addendum does not contain a clause
recording in express terms the substitution of the applicant
as
purchaser, the addendum does nevertheless record implicitly an
intention to allow the applicant to be substituted as purchaser.
The names of the three businessmen who signed the original agreement
do not appear in the text of the addendum. The addendum
is
headed “Addendum to Deed of Sale dated 21 January 2014”.
The relationship between it and the original agreement
cannot be
challenged. Under the heading to the document it is recorded
that it is entered into between Vigraha Property CC
as seller and
“Venalex (Pty) Limited (hereinafter referred to as the
“purchaser”)”. As already noted
the provision
for signature of the purchaser is made above the words “for
Venalex (Pty) Limited”. There are five
numbered clauses
in the document. The “purchaser”, defined by the
addendum itself as the applicant, is mentioned
in four of them.
The clauses are thus to the effect that the applicant would take
occupation of the property on 5 February
2014; that the applicant’s
occupation would be given for purposes of cosmetic renovations only;
that the applicant would
not have to pay occupational interest but
would have to pay other outgoings in respect of the property (a
subject I will revert
to); and that in the event of the sale being
cancelled for any reason the applicant would be obliged to return the
property to
its original condition at the time of sale. Of
course, throughout the applicant is referred to as the “purchaser”.
[32]
The fifth clause of the agreement is to the effect that in all other
respects the sale agreement remains unchanged. It
is impossible
to resist the conclusion in those circumstances that the substitution
of the applicant as purchaser was acknowledged
and agreed in writing
by the conclusion of the addendum. And it should be noted that
whilst in the answering papers the first
respondent railed against
the quality and relevance of the addendum, it is not said that the
first respondent was misled in any
respect with regard to the
addendum, or that the fact that the applicant had been identified as
the purchaser in the addendum had
been overlooked by the first
respondent (or, more correctly, by Dr Mahabeer acting for the first
respondent).
[33]
In my view there is also no merit in the contention that the addendum
is of no force and effect because the manuscript insertion
made in
it, when it was signed on behalf of the first respondent, was not
replicated in the form of addendum signed on behalf of
the
applicant. Clause 3 of the addendum contains the addition.
Clause 3 records in its printed words that occupational
interest
would not be payable for the limited form of occupation to be
afforded to the applicant in advance of transfer.
The printed
form records that the purchaser would nevertheless pay for all
utilities consumed on the property from the date of
occupation and
that the accounts would be furnished by the seller to the purchaser
and would be paid on presentation. The
manuscript insertion
appears in parenthesis after the printed version of the clause and
reads as follows.
“
(Rates,
electricity, water and general maintenance of the property.)”
[34]
Electricity and water are part and parcel of utilities consumed on
the property and in that respect the manuscript insertion
added
nothing to the printed text of clause 3. The inclusion of
“rates” in clause 3 by way of the manuscript
insertion on
the addendum simply clarified the effect of clause 9 of the schedule
to the original agreement, which was to the effect
that the monthly
rates would be paid by the purchaser if occupation was taken (by
agreement with the seller pursuant to clause
8 of the schedule) in
advance of transfer. Clause 4.3 of the conditions of contract
obliged the purchaser, from the date
of occupation, to “keep
and maintain the property in the same good order and condition as it
was in on the occupation date”.
I can see no difference
that matters between that obligation and the obligation to attend to
“general maintenance of the
property” mentioned in the
manuscript addition to clause 3 of the addendum.
[35]
The first respondent’s argument is in essence that the offer
and the acceptance in respect of the addendum do not coincide
as a
result of which the addendum is not valid and binding. In my
view, for the reasons stated above, the argument is based
upon an
incorrect factual premise as the manuscript additions to clause 3
neither added nor subtracted anything to or from the
rights and
obligations which were already established. As was stated in
Hutchinson v Hylton Holdings and Another
1993 (2) SA 405
(T) at 413F, the rule that offer and acceptance
should coincide is not formalistic.
“
Immaterial
alterations do not breach the rule that offer and acceptance must be
identical. Substance is to be looked at, not
form. What
is required is
consensus ad idem
and that was present.”
Here
also the required consensus is evident and was established.
[36]
Accordingly, the orders sought by the applicant must follow either
because the main issue in this case has been decided in
its favour,
or because, in any event, an addendum to the original agreement
brought about the applicant’s substitution as
purchaser under
the agreement.
I
accordingly make the following order.
1.
It is declared that the applicant is
the purchaser of the immovable property known as Rem of Portion 1 of
Erf 197 Rouken Glen and
Portion 2 of Erf 197 Rouken Glen situate at 1
and 1A Waterloo Road, Westville in terms of the agreement of sale
concluded on 21
and 22 January 2014 with the first respondent, and in
terms of the addendum to that agreement signed on 4 and 5 February
2014.
2.
The first respondent is directed to
do all things necessary on its part, including the signature of all
requisite documents, to
cause transfer of the property to the
applicant to be effected.
3.
The first respondent’s
counter-application is dismissed.
4.
The first respondent is ordered to
pay the costs of the application and the counter-application,
including the costs of two counsel.
_____________________
OLSEN
J
Date
of Hearing: FRIDAY, 30 JANUARY 2015
Date of Judgment: TUESDAY, 10
MARCH 2015
For
the Applicant: MR M PILLEMER SC
MR
G HARRISON
Instructed
by: V CHETTY & COMPANY
SUITE
3, RYDALL VALE OFFICE PARK
DOUGLAS
SAUNDERS DRIVE
LA
LUCIA RIDGE
DURBAN
(Ref.:
Mr Chetty/MC/B9958))
(Tel
No.: 031 – 566 1900/23/33)
c/o
THE DOCUMENT EXCHANGE
For
the First Respondent: MR A K KISSOON SINGH SC
MR
A D COLLINGWOOD
Instructed
by: G H ISMAIL & ASSOCIATES
543
RIDGE ROAD
DURBAN
(Ref.:
Mr Hussain/Ylesia/V165)
(Tel.:
031 – 207 8180)