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[2014] ZAGPPHC 274
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Relebipi Properties CC v De Wet N.O. and Others (36209/2012) [2014] ZAGPPHC 274 (24 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
36209/2012
DATE: 24 APRIL
2013
In the matter
between:
RELEBIPI
PROPERTIES
CC
..................................................................................................
APPLICANT
and
CHRISTIAAN
FREDERIK DE WET N.O.
…......................................................
FIRST
RESPONDENT
LEON NAUDE N.O.
….......................................................................................
SECOND
RESPONDENT
ALLAN DAVID
PELLOW N.O.
…......................................................................
THIRD
RESPONDENT
GAVIN CECIL
GAINSFORD N.O.
…............................................................
FOURTH
RESPONDENT
MARGARET EDWARDS
N.O.
….......................................................................
FIFTH
RESPONDENT
SNYMAN DE JAGER
ATTORNEYS
….............................................................
SIXTH
RESPONDENT
HEUNIS STREAULI
ATTORNEYS
.............................................................
SEVENTH
RESPONDENT
THE REGISTRAR OF
DEEDS
…..................................................................
EIGHTH
RESPONDENT
THE MASTER OF THE
HIGH
COURT
..........................................................
NINTH
RESPONDENT
INVESTEC BANK
…..........................................................................................
TENTH
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] The first,
second, third, fourth, fifth and tenth respondents (herein referred
to as the respondents) have applied for leave
to appeal against the
whole of my judgment and order handed down on 17 January 2014.
[2] The respondents
filed their application for leave to appeal out of time. They as a
result filed an application for condonation
of the late filing of
their application for leave to appeal. The applicant did not oppose
the condonation application. At the hearing
of the application for
leave to appeal both counsel did not bring this issue up. I am thus
of the view that in the interest of
justice I should grant the
condonation application.
[3] The appeal
emanates from an application in which the applicant sought to compel
the first, second, third, fourth and fifth respondents
in their joint
capacities as liquidators of Meltin Properties 59 CC (in liquidation)
to sign all documents required for the seventh
respondent (or any
other properly appointed conveyancing attorneys) to effect transfer
of Sectional Title Units 1 and 3 of SS Norma
Jean Square, 124/2010
situated at Die Howes Ext 197, 705 also known as units 1 and 3 Norma
Jean Square, 244 Jean Avenue, Centurion
(the immovable property), to
the applicant in effecting the purchase agreement entered into
between the applicant and Meltin Properties
59 CC. I found in favour
of the applicant and granted it the relief sought with costs.
[4] The respondents
seek leave to appeal the judgment on various grounds as stated in
their application for leave to appeal. However,
at the hearing of the
application their counsel argued mainly on two grounds, namely, that:
a. I misdirected
myself in not finding that once the funds left the trust account they
were no longer entrusted for the purpose
of the purchase price.
b. I erred in
finding that the liquidators had chosen to perpetuate the agreement
and that the obligations must be performed in
their entirety as
perthe agreement.
[5] My view is that
there are no prospects that another court may come to a different
conclusion. In my judgment I dealt in depth
with the issues raised by
the respondents in their application for leave to appeal and as
argued by their counsel in court. And
I have not been persuaded
otherwise.
[6] My findings on
the facts and on the law are succinctly set out in my judgment. It is
common cause that the second agreement
was entered into by the
applicant and Lawrence in his capacity as a member of Meltin
Properties 59 CC (the seller). In terms of
this agreement the
applicant as the purchaser of the seller’s immovable property
authorised the seller’s attorneys
to release a portion of the
purchase price (R3 400 000) held in trust to the seller to be
utilised towards the finalisation of
the seller’s development
project. It is also common cause that before the property could be
transferred into the applicant’s
name the seller went
insolvent.
[7] It is trite that
the status of an immovable property, where the agreement of sale in
respect thereof was entered into before
the seller went insolvent and
the property has not been transferred into the name of the purchaser,
the property vests in the liquidator/trustee
of the seller’s
estate. Similarly in this instance, since the property had not been
transferred into the applicant’s
name, when the seller went
insolvent the property vested in the trustees of the seller’s
estate. The general rule is that
in such an instance, the trustees
had to elect whether to stop the agreement or to preserve it. In this
instance my conclusion
is that the trustees elected to preserve the
agreement. I concluded as such due to the numerous communications
between the applicant
and the trustees’ attorneys which are
indicative of the trustees’ intention to proceed with the
agreement. The trustees
changed their intention only when they were
of the opinion that the applicant had not paid the purchase price.
[8] I concluded on
this point that even though the applicant had authorised the seller’s
attorneys to release part of the
purchase price to the seller, the
applicant had paid the full purchase price. I concluded as such
because at all material times
hereto the intention of the applicant
was to pay the amount as the purchase price. This is set out in both
the first and second
agreements which the applicant and the seller
entered into. The proposition by the respondents’ counsel that
for it to be
said that the applicant paid the purchase price the
funds should have been ring-fenced and kept in the attorneys’
trust account
or that the seller should have refunded the money
before it went insolvent and further that by releasing the money the
applicant
ran the risk of losing the money, has no merit. As argued
by the applicant’s counsel there is no law or case law to
support
this proposition and indeed none was proffered by the
respondents’ counsel. The purchase price of immovable property
can
be paid either before or at the time of transfer or even after
transfer of the property. It can also be paid directly to the
purchaser
or to a third party as directed by the seller or as agreed
between the parties. And in this instance, in terms of the purchase
agreement the applicant was directed to pay the purchase price into
the trust account of the seller’s attorneys and by a further
agreement the parties agreed to pay out a portion of thereof directly
to the seller.
[9] On the basis of
the factual and law findings in my judgment and as summarised herein,
in my opinion, no other court will come
to a different conclusion and
the respondents’ application for leave to appeal ought to be
dismissed with costs.
[10] In the premises
I make the following order:
a. The application
for leave to appeal is dismissed with costs.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
HEARD ON THE :23
APRIL 2014
DATE OF JUDGMENT
:24 APRIL 2014
APPLICANT’S
COUNSEL : ADV J C KLOPPER
APPLICANT’S
ATTORNEYS: VAN GREUNEN & ASSOCIATES
RESPONDENTS’
COUNSEL : ADV FABER
RESPONDENTS’
ATTORNEYS : FSE ATTORNEYS