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[2014] ZAGPPHC 456
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Oosthuizen N.O. and Others v Louw and Others (34151/12) [2014] ZAGPPHC 456 (9 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
IVISION.
PRETORIA)
CASE NO: 34151/12
DATE: 9 MAY 2014
In the matter
between
CAREL PETRUS
OOSTHUIZEN
N.O
........................................................................
FIRST
APPLICANT
GERT KRUGER
N.O
................................................................................................
SECOND
APPLICANT
ALAN LESTER
OOSTHUIZEN
..................................................................................
THIRD
APPLICANT
MICHELLE KIM
BREETZKE
(OOSTHUIZEN)
.................................................
FOURTH
APPLICANT
And
ESRAH JACOBA
LOUW
..........................................................................................
FIRST
RESPONDENT
OENICKA MARNE’
VAN DER
MERWE
.........................................................
SECOND
RESPONDENT
ELIZABETH MARIA
PIETERSE
..........................................................................
THIRD
RESPONDENT
R AND E MICRO
LOANS CC t/a R + E
BROKERS
........................................
FOURTH
RESPONDENT
T AND P CARPENTRY
AND SERVICES CC t/a
T AND P CARPENTRY
SERVICE
..........................................................................
FIFTH
RESPONDENT
HANVER
REDDY
......................................................................................................
SIXTH
RESPONDENT
KRISH REDDY
RERRACTORY AND BUILDING
CONSTRUCTION CC
t/a K R R REFECTORY
AND CIVILS and/or
KRISH REDDY REFRACTORY
AND
CIVILS
........................................................................................................
SEVENTH
RESPONDENT
STOFFELINA
SUSANNA VOOGT
N.O
................................................................
EIGHT
RESPONDENT
THE MASTER OF THE
HIGH COURT, PRETORIA
.........................................
NINTH
RESPONDENT
JUDGMENT
MOLEFE J:
[1] This is an
application wherein the applicant is seeking the following order:
“
1.
Paragraph 2 of the order granted by this court on 4 September 2007
under case number 26254/05, be rescinded insofar as it ratified
the
agreement of sale dated 30 July 2004 between “Esrah Jacoba Louw
in die hoedanigheid en kurator bonis vir en ten behoewe
van die
boedel van Caret Petrus Aibertus Oosthuizen as seller, and “Pieterse
Eric Arnold en Pieterse Elizabeth Maria”,
as purchasers,
whereby the First Respondent sold Erf 2127, 8 Erasmus Street, Secunda
(“the property”), to the Third
Respondent and one Eric
Arnold Pieterse (“the sale”).
2. It is
declared:
2.1 that the sale
is null and void ab initio and of no force and effect:
2.2 that the sale
is not binding on the trustees of the Caret Oosthuizen Kindertrust,
registration number IT 814/92 (“the
Trust”) and the said
trustees have no obligation towards the Third Respondent in terms of
the sale;
2.3 that all
lease agreements entered into by the Third Respondent with the
Fourth, Fifth and Sixth Respondent are of no force and
effect;
2.4 that any
consent, by way of agreement or any other manner whatsoever, granted
by the First Respondent to the Third, Fourth,
Fifth, Sixth and/or
Seventh Respondents to occupy or use the property or any part
thereof, is null and void ab initio and of no
force and effect;
2.5 that the
First and Third Respondent have no authority to enter into sale and
lease agreements in respect of the property, to
grant consent to any
person or entity to occupy or use the property or any part thereof or
to deal in any other manner whatsoever
with the property, and that
the First and Third Respondents never had such authority;
2.6 that the
Third, Fourth, Fifth, Sixth and Seventh Respondents have no valid
consent or other right in law to occupy the property.
3. It is declared
that the Third Respondent has no claim for improvements and/or
retention in respect of the property.
4. The Third,
Fourth, Fifth, Sixth and Seventh Respondents are evicted from the
property.
5.
The First, Third, Fourth, Fifth, Sixth and Seventh Respondents are
ordered to pay the costs of this application, jointly and
severally,
the one paying the other to be absolved, such costs to include the
costs attendant upon the employment of two counsels
- provided that,
as far as the First Respondent is concerned, her liability in respect
of costs are limited to costs on an unopposed
basis up to and
including
3
August 2012. ”
Background
[6] The First and
Second Applicants are the only trustees of the Carel Oosthuizen
Kindertrust (registration number IT 814/92) (“the
trust”).
The third and fourth applicants are the children of the late Carel
Petrus Albertus Oosthuizen (Jnr) (“Carel”)
and the second
respondent, and were respectively born on 24 March 1985 and 17 May
1987. They are the only beneficiaries of the
trust.
[7] The First
Respondent is an attorney practising as such with Els, Louw and
Rasool Inc., Sanlam Plaza Building, corner of Horwood
and Heunis
Streets, Secunda. The first respondent does not oppose the
application.
[8] The Second
Respondent is the Third and Fourth applicants’ mother and was
their natural guardian when they were minor children.
She was also
married to Carel. The second respondent does not oppose the
application.
[9] The third to
seventh respondents gave notice of their intention to oppose the
application but only the third respondent delivered
an answering
affidavit.
[10]
The ninth respondent, the Master of the High Court did not oppose the
application and made a report to abide the decision of
the court
1
.
[11] During 1987,
Carel suffered severe injuries in an accident at the mine at which he
was employed and became permanently unfit
for work. He was
subsequently awarded compensation for his injuries and disabilities
in an approximate amount of R2,5 million.
Carel utilised the
compensation to purchase a commercial Erf 2127, 8 Erasmus Street, in
Secunda and to improve it with the erection
of buildings for
commercial use. (“the immovable property”).
[12]
On the advice of Carel’s attorneys, Kruyshaar, Jordaan, Chester
and Gouws the trust was registered on 10 April 1992,
with the founder
being the first applicant and the initial trustees being Carel and
attorney C J Gouws. The property was registered
in the name of the
trustees of the trust from time to time on 29 June 1993 as it is
evident from the deed of transfer
2
.
Carel’s purpose with the trust was to secure the compensation
he received for the well-being of his children, namely the
third and
fourth applicants and the position has not changed.
[13] On 18 March
1994, the marriage between Carel and the second respondent was
dissolved in terms of an order of this Court under
case number
3151/93. The first respondent as an attorney assisted and acted for
the second respondent in the divorce proceedings.
During the same
year in September 1994, Carel disappeared without trace.
[14]
On 10 February 1995, Mr Gouws resigned as a trustee of the trust.
During 1995, the second respondent, assisted by the first
respondent,
brought an application in this court under case number 7126/95 for
the appointment of attorney JP Kruyshaar as
curator
bonis
for
Carel. The order was granted on 5 June 1995
3
.
[15] On 21 July
1995, the ninth respondent, the Master of the High Court, issued a
letter of authority in terms of which Carel was
authorised to act as
sole trustee of the trust. This was after Carel’s disappearance
in September 1994. The reasons for and
circumstances under which the
letter of authority was issued could not be established.
[16] On January
2001, Mr Kruyshaar passed away. Pursuant to Mr Kruyshaar’s
death, the second respondent brought an urgent
application in this
court, under the same case number 7126/95 for:
“
16.1
the appointment of
Adv J.A. Meyer as Curator ad litem, to lodge a full investigation
into the position of Carel and to report to
the court in that regard;
16.2
the first
respondent to be authorised to make certain specific payments to the
second respondent from Caret’s bank account.
”
An
order was granted on 30 January 2001
4
.
[17]
Pursuant to the aforesaid court order, the first respondent acted as
if she was the appointed
curator
bonis
for
Carel in Mr Kruyshaar’s stead. Thus on 30 July 2004, the first
respondent acting
“
in
die hoedanigheid en Kurator bonis vir en ten behoewe van die bedoel
van Carel Petrus Albertus Oosthuizen”,
concluded
a written agreement of sale in terms of which she sold the immovable
property to the third respondent and her husband
at that time, Mr
E.A. Pieterse, for an amount of R790 000-00
5
.
In terms of clause 6
of the deed of sale, an occupational rental in an amount of R7 900,00
per month was payable by the third respondent.
[18] At the time of
the conclusion of the sale agreement, the immovable property was
still registered in the name of the trustees
for the time being of
the trust and the third and fourth applicants were still minors.
[19] Pursuant to the
sale agreement, the third respondent took occupation of the
immoveable property, concluded agreements of lease
in respect of
certain portions thereof with the fourth, fifth and sixth
respondents, and all of them are currently in occupation
of the
property (albeit the sixth respondent is possibly occupying the
property through the seventh respondent, a close corporation
of which
he is a member).
[20]
On 4 September 2007, the first respondent, in an ex
parte
application
under case number 26254/2005, obtained the following order
6
in this court:
“
1.
THAT Esrah Jacoba
Louw be and is hereby retrospectively appointed as curator bonis for
Carel Petrus Albertus Oosthuizen from 16
January 2001, with the power
and obligations as set out in Annexure ‘C’ to the
founding affidavit.
2.
THAT all steps
taken and things done by Esrah Jacoba Louw from 16 January 2001 to
date hereof is ratified as if Esrah Jacoba Louw
was appointed on 16
January 2001 as curator bonis for the said Carel Petrus Albertus
Oosthuizen.
3.
THA T the said
Carel Peturs Albertus Oosthuizen is presumed to be dead.
4. THAT the
estate of the said Carel Petrus Albertus Oostyhuizen [sic] is dealt
with in terms of the provisions of the last will
and testament left
by the said Carel Petrus Albertus Oosthuizen and in accordance with
all and any legal requirements, required
by the Master of the above
Honourable Court and/or any legislation.
5.
THAT
costs of this application be paid on an attorney and client scale out
of the estate of the said Carel Petrus Albertus Oosthuizen.
Ad Rescission
of paragraph 2 of the order dated 4 September 2007
[21]
Counsel for the applicants
7
submitted that ex
facie
the
ex
parte
application,
it appears that:
21.1
Carel was represented by Adv. J.A. Meyer in his capacity as
curator
ad litem
for
Carel.
21.2 the third and
fourth applicants had a real and substantial interest in the
application because Carel, whose declaration of
death and disposal of
assets were sought, was their father;
21.3
neither the third and fourth applicants, nor their guardian, the
second respondent, were given notice of the application or
the date
of hearing thereof (at the time that the ex
parte
application
was
brought the third and fourth applicants were still minors; at the
time of the order referred to in paragraph 20 above was granted,
they
were majors.);
21.4
the first respondent deposed to the founding affidavit and she also
submitted to the court a report of what she had done in
respect of
Carel’s assets when she
de
facto
acted
as his purported
curator
bonis.
In
her affidavit and report she stated that the immovable property was
an asset of Carel. She never mentioned the existence of the
trust nor
the fact that Carel was a trustee of the trust.
[22] Applicant’s
counsel argued that the first respondent never made any efforts to
establish who the registered owner of
the immovable property was at
the time when she purported to alienate it despite the fact that she
had the description of the property
and the Deeds Office search would
have been a simple exercise. Furthermore, the first respondent was in
possession of the municipal
accounts and copies of lease agreements
with Telkom (which rented the property at some point in time), which
indicated that the
property belonged to the trust. Neither the first
respondent nor Adv. J. A Meyer presented any particulars to the court
as regards
the value of the immovable property.
[23]
Applicants’ counsel contends that should the first respondent
had disclosed to the court the existence of the trust and
the fact
that the trustees for the time being were the owners of the immovable
property, which had to be utilised to the benefit
of the third and
fourth applicants, the court would not had granted the order which
was sought on an ex
parte
basis.
It is counsel’s argument that had the judge been aware that the
interests of the minor children were involved in the
ex
parte
application
he would not have granted the order.
[24]
Applicant’s Counsel contends that the ex
parte
judgment
was therefore erroneously granted and in this regard relies on the
case of
Naidoo
and Another v
Matlala
No and Others
2012
(1) at 153
C,
wherein
it was held that in general terms a judgment is erroneously granted
if there existed at the time of its issue a fact of
which the judge
is unaware, which would have precluded the granting of the judgment
and which would have induced the judge, if
aware of it, not to grant
the judgment. It is on this basis that the ratification of the
agreement of sale is to be rescinded.
[25]
The third respondent does not dispute that the trust owns the
property. What is also significant is that the third respondent
stated the following in her answering affidavit
8
:
“
Uit
die dokumente voor die Agbare Hof is dit duideiik dat ek die
onroerende eiendom uit die boedei van die ooriedene gekoop het.
Die
ooriede was egter nie die geregistreerde eienaar van die onroerende
eiendom nie. Die Carel Oosthuizen Kindertrust
was
die geregistreerde
eienaar”.
This supports the
applicants’ contention that at no time was the first respondent
authorised to act on behalf of the trust
and therefore the
ratification of the agreement should be rescinded.
Ad Referral to
Trial
[26]
Counsel for the third respondent’s
9
submissions
were based on the argument that the third respondent was
disadvantaged by the applicants’ election to approach
the court
on application rather than by action even though there are factual
disputes that arose and which could only be adjudicated
by referring
the matter to trial.
[27] Third
respondent’s Counsel based his argument that there are factual
disputes on the following factors:
a) that the third
respondent was not privy to the purchasing of the commercial property
from the then Stadsraad van Secunda by Carel
and was unable to obtain
a copy of the deed of sale relating to the purchase;
b) that there is no
evidence as to how the commercial immovable property was registered
in the name of the trustees;
c) that there is no
documentation reflecting how it came about that the commercial
property was previously leased to Telkom by Carel
(as opposed to the
Trust) and how the rental income was channelled through the estate of
Carel as opposed to the Trust.
It is counsel’s
further contention that the third respondent is not in a position to
place before the court the first respondent’s
evidence which is
relevant to this application. The first respondent is also first
defendant in an action which had been instituted
by the applicants.
[28] Counsel for the
third respondent further argued that it is of critical importance to
the third respondent to prove that the
first applicant was appointed
as trustee of the Trust on 21 July 1995 and that such appointment
should be adjudicated with the
full advantage of discovery,
compulsion to testify and cross-examination.
The third respondent
also raised a possibility that the transfer of the commercial
property was in order to defraud the second respondent
or was
intended to defraud the fiscus. It is because of the above-mentioned
reasons that the third respondent’s Counsel submits
that this
application should be referred to trial.
[29]
It is trite that in terms of rule 6 (5) (a) where an application
cannot be decided on affidavit, the Court has a discretion
as to the
future course of the proceedings.
See
RoomHire Co (Pty) Ltd v Jeooe Street Mansions
(Pty) Ltd
1949 (3) SA 1155
(T)
at 1162
-
1168.
In
this matter the allegations by the third respondent are vague and
insubstantial. There is no duty on the applicants to prove
that the
trustees obtained the immovable property in a legitimate manner and
that the transfer duty was paid under circumstances
where they rely
on the title deed as proof that the immovable property is registered
in the names of the trustees for the time
being of the trust.
It is trite that
vague and insubstantial allegations are insufficient to raise the
kind of dispute of fact that should be referred
for oral evidence.
In this case, it is
my view that there is no real dispute of fact which needs to be
referred to trial.
[30] The pivotal
point in this application is indeed whether paragraph 2 of the order
granted by this court on 4 September 2007
should be rescinded insofar
as it ratified the sale agreement.
It is noteworthy
that although the immovable property was sold by the first respondent
to the third respondent on 30 July 2004,
the property has not yet
been transferred to the name of the third respondent. It is also
common cause that at the time the deed
of sale in respect of the
immovable property was concluded between the first and the third
respondents, the trustees for the time
being of the trust, and not
Carel, was the registered owner of the commercial property. It is
clear that the first respondent was
never able to give transfer of
the immovable commercial property to the third respondent.
[31] In terms of
rule 42(1 )(a) the court may, in addition to any powers it may have,
upon the application of any party affected,
rescind or vary an order
or judgment erroneously sought or erroneously granted in the absence
of any party affected thereby. A
judgment is erroneously granted if
there existed at the time of its issue, a fact of which the court was
unaware, which would have
precluded the granting of the judgment and
which would have induced the court, if aware of it, not to grant the
judgment. If material
facts are not disclosed in an ex parte
application, the order will be erroneously granted.
(See
Naidoo
v Matlala
NO,
supra
at
135 C -E). Furthermore, an order granted in an application brought ex
parte without notice to a party who has direct and substantial
interest in the case is also an order erroneously granted
10
.
Once the court holds that an order or judgment was erroneously sought
or granted, it should without further enquiry rescind or
vary the
order, and it is not necessary for the party applying for rescission
to show good cause for rule 42 (1) to apply.
[32]
In casu,
the
application was brought ex parte and there is no evidence that the
application was served on the second respondent in her capacity
as
the third and fourth applicants’ legal guardian whilst they had
a direct and substantial interest in the application.
The deceased
whose declaration of death and disposal of assets was sought, was
their father. They were also beneficiaries to the
trust which owned
the immovable property. Consequently, the order granted on 4
September 2007, without notice to either of these
parties, was in my
view, erroneously granted.
Furthermore, there
existed at the time of the issue of the order, facts which the
honourable Jooste, AJ was unaware of which facts
would have precluded
the granting of the order and which facts would have induced the
honourable judge not to grant the order.
On this point, it is again
my view that the order was erroneously granted. The immovable
property at the time the sale was concluded,
belonged to the trustees
for the time being of the trust, and not to Carel. This case is
therefore one which comes within the ambit
of Rule 42 (1) (a) of the
Rules of Court. In the premises the order was erroneously granted and
paragraph 2 of the order granted
by this court on 4 September 2007
under case number 26254/05 is rescinded.
Ad the Nullity
of the Sale Agreement
[33]
It is common cause that at the time the deed of sale in respect of
the immovable property was concluded between the first respondent
and
the third respondent, the trustees for the time being of the trust,
and not Carel, were the registered owners of the property
11
.
The third respondent in her answering affidavit, raised the following
purported defences: sale of a
res
aliena
and
estoppel.
Res Aliena
[34] Alienation of
land is governed by the
Alienation of Land Act 68 of 1981
.
Section 2
(1) of the
Alienation of Land Act reads
as follows:
“
(1)
No alienation of land after the commencement of this section shall,
subject to the provisions of
section 28
, be of any force or effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting
on their written authority”.
[35]
In a normal sale of immovable property, either the owner of the
property, or the owner’s agent (acting upon the owner’s
written authority) must sign the deed of alienation. In
casu,
the
first respondent was neither the owner nor the trust’s agent as
contemplated in
section 2
(1) of the Act, and therefore not legally
competent to sell the trust’s immovable property and sign the
deed of alienation.
The immovable property has not been transferred
to the third respondent’s name (despite the fact that the sale
was concluded
in 2004). Consequently, the deed of sale between the
first respondent and the third respondent is null and void
ab
initio
and
of no force and effect.
[36]
In my opinion, the third respondent’s reliance on the legal
principles to selling of a
res
aiiena
is
misplaced. The trustees for the time being of the trust, in
particular the first and second applicants have no intention of
performing the first respondent’s contract with the third
respondent nor of selling the immovable property to the third
respondent.
Therefore the trust is not bound to the sale of the
immoveable property. In any event, the principles pertaining to the
sale of
a
res
aiiena
cannot
override the provisions of
section 2(1)
of the
Alienation of Land
Act. For
the principles of
res
aiiena
to
prevail, it is a requirement that both seller and buyer
bona
fide
believed
that the seller was the owner of the property. (See
Cf
Alpha Trust (Edms
)
Bpk v Van der Watt
1975 (3)
SA 734
(A) at 743 C).
In
this case there can be no doubt that the first respondent did not
have
bona fide
belief
that she or Carel was the owner of the immovable property. The same
applies to the third respondent who failed to ask the
first
respondent for proof of her curatorship and bluntly relied on the
say-so of the first respondent.
It
is clear that the first respondent had no authority to sell the
immovable property when the property was at all relevant time
(and is
still is) registered in the names of the trustees. The deed of sale
is therefore
void
ab initio.
Estoppel
[37]
The third respondent also raise estoppel as her defence. The
following requirements on estoppels were set in
Oaklands
Nominees (Pty) Ltd v Gelria Minina
& Investment
Co (Pty) Ltd
1976 (1) SA 441
(A) at 452 E-G.
“
(i)
There must be a representation by the owner, by conduct or otherwise,
that the person who disposed of his property was the owner
of it or
was entitled to dispose of it. A helpful decision in this regard is
Electrolux (Pty) Ltd v Khota and Another,
1961 (4) SA 244
(W), with
its reference at p 247 to the entrusting of possession of property
with the indicia of dominium or jus disponendi.
ii) The
representation must have been made negligently in the circumstances.
Hi) The
representation must have been relied upon by the person raising the
estoppels.
iv) Such person’s
reliance upon the representation must be the cause of his acting on
his detriment. As to (iii) and (iv),
See Standard Bank of SA Ltd v
Stama (Pty) Ltd
1975 (1) SA 730
AD”.
[38]
It is not the third respondent’s case that anyone acting on
behalf of the trust negligently made a false representation
to her or
that the first respondent, when making a representation to her, did
so negligently on behalf of the trust. It cannot
be said that a
trustee or anyone acting on behalf of the trust allowed the first
respondent to negligently make a representation
that the immovable
property belonged to Carel. Furthermore, there is nowhere the third
respondent alleges that she relied upon
a representation of the
trustees of the trust and that she did so to her detriment. In my
view, the third respondent has not proved
the requirements of
estoppels as mentioned in
Oakland Nominees
Supra.
The
third respondent is therefore not entitled to rely on estoppel as she
failed to take reasonable steps to avoid prejudice to
her.
[39]
Due to the reasons above-mentioned, the first and third respondents
had no authority to enter into sale and lease agreements
in respect
of the immovable property nor to grant consent to any person or
entity to occupy or use the property or any part thereof
or to deal
in any other manner with the immovable property. Therefore, any
consent by way of agreement or any other manner whatsoever
granted by
the first respondent to the third, fourth, fifth, sixth and/or
seventh respondents to occupy or use the immovable property
or any
part thereof, is also null and void
ab
initio
and
of no force or effect. The third, fourth, fifth, sixth or seventh
respondents have no valid consent or other right in law to
occupy the
immovable property.
Ad Eviction
[40] Counsel for the
applicants submitted that the first and second applicants are
currently the registered owners of the immovable
property. The third,
fourth, fifth, sixth and/or seventh respondents are in
possession/occupation of the property. The fourth to
seventh
respondents do not oppose the application and there is no evidence
before the court justifying their continuous occupation/possession
of
the immovable property.
[41]The
third respondent in her answering affidavit alleges that she has a
right of retention in respect of the immovable property
because she
bona
fide,
and
with the consent of the first respondent, effected detailed
improvements to the buildings in the immovable property in an amount
of R1 290 000,00
12
.
However, the third respondent’s answering affidavit do not set
out sufficient facts in order to establish a lien.
[42]
Absent any governing provisions in a contract of lease, lessees, like
bona
fide
possessors,
have an enrichment claim for the recovery of expenses that were
necessary for the protection or preservation of the
property and for
the expenses incurred in effecting useful improvements to the
property
13
.
To rely on a lien
the defendant must allege and prove:
a)
Lawful
possession of the object;
Roux
v Van Rensburg
[1996] ZASCA 54
;
[1996] 3 ALL SA 499
(A),
1996 (4) SA 271
(SCA)
b) That the expenses
were necessary for the salvation of the thing or useful for its
improvement;
c) The actual
expenses and the extent of the enrichment of the plaintiff;
d)
That the plaintiff’s enrichment is
iniusta
(unjustified);
and
e)
That there was no contractual arrangement between the parties (or a
third person) in respect of the expenses
14
.
See
Mc
Carthy Retail Ltd v
Shortdistance
Carriers CC (2001)
3
All SA 236
(A),
2001 (3) SA 482
(SCA).
Having regard to the
above-mentioned requirements, I am not satisfied that the third
respondent has made a proper case for retention.
The third respondent
had no authority to lawfully conclude rental agreements with the
fourth, fifth, sixth and/or seventh respondents
and their current
occupation of the immovable property is unlawful and consequently
they should be evicted.
Ad Costs
[43] The general
rule is that costs follow the event; however this is subject to the
overriding principle that the court has a judicial
discretion in
awarding costs.
The third respondent
is ordered to pay the costs of this application, such costs to
include the costs attendant upon the employments
of two counsels.
There is no costs
order against the second respondent. Although the fourth, fifth,
sixth and seventh respondents gave notice of
their intention to
oppose the application, they did not file their answering affidavit.
There is no costs order against the fourth,
fifth, sixth and seventh
respondents.
Regarding the first
respondent, applicant's counsel submitted that the attorneys have
agreed that the first respondent’s costs
be limited to costs on
an unopposed basis up to and including 3 August 2012.
[44] In the
premises, I make the following order:
[1] Paragraph 2
of the order granted by this Court on 4 September 2007 under case
number 26254/05, is hereby rescinded insofar as
it ratified the
agreement of sale dated 30 July 2004 between “Esrah Jacoba Louw
in die hoedanigheid en kurator bonis vir
en ten behoewe van die
boedel van Carel Petrus Albertus
Oosthuizen”
as seller, an “Pieterse Eric Arnold en Pieterse Elizabeth
Maria”, as purchasers, whereby the First
Respondent sold Erf
2127,8 Erasmus Street, Secunda (“the property”) to the
Third Respondent and one Eric Arnold Pieterse
(“the sale”).
2. It is
declared:
2.1 that the sale
is null and void ab initio and of no force and effect;
2.2 that the sale
is not binding on the trustees of Carel Oosthuizen Kindertrust,
registration number IT 814/92 (“the Trust”),
and the said
trustees have no obligations towards the Third Respondent in terms of
the sale; and
2.3 that all
lease agreements entered into by the Third Respondent with the
Fourth, Fifth and Sixth Respondents are of no force
or effect;
2.4 that any
consent, by way of agreement or any other manner whatsoever, granted
by the First Respondent to the Third, Fourth,
Fifth, Sixth and/or
Seventh Respondents to occupy or use the property or any part
thereof, is null and void ab initio and of no
force and effect;
2.5 that the
First and Third Respondents have no authority to enter into sale and
lease agreements in respect of the property, to
grant consent to any
person or entity to occupy or use the property or any part thereof or
to deal in any other manner whatsoever
with the property, and that
the First and Third Respondents never had such authority;
2.6 that the
Third, Fourth, Fifth, Sixth and Seventh Respondents have no valid
consent or other right in law to occupy the property.
3. It is declared
that the Third Respondent has no claim for improvements and/or
retention in respect of the property.
4. The Third,
Fourth, Fifth, Sixth and Seventh Respondents are evicted from the
property.
5. The First and
Third Respondents are ordered to pay the costs of this application,
jointly and severally the one paying the other
to be absolved, such
costs to include the costs attendant upon the employment of two
counsels-provided that as far as the First
Respondent is concerned,
her liability in respect of costs are limited to costs on an
unopposed basis up to and including 3 August
2012.
D S MOLEFE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel on behalf
of Applicants: Adv. D E van Loggerenberg SC
Instructed by:
Tim Du Toit & Co Inc.
Counsel on behalf
of third Respondent: Adv. F J Erasmus
Instructed by :
Bernhard van Der Hoven Attorneys
Date Heard: 27
March 2014
Date Delivered:
09 May 2014
1
Bundle
pages 117(i) - 117 (ii)
2
Annexure
"GK4" to the founding affidavit (pg 55 - 59)
3
Annexure
"GK5", pp 60 - 61
4
Annexure
"GK6" of the founding affidavit pp 62 -63
5
copy
of deed of sale annexure GK7, of the founding affidavit pp 64 - 70
6
Annexure
"GK8" founding affidavit p71
7
Adv
D.E. van Loggerenberg SC
8
Page
132 par 11
9
Adv.
F.J. Erasmus
10
Clegg
v Priestley
1985 (3) SA 950
(w) at 951
11
Deed
of transfer, annexure "GK4" to the founding affidavit (pp
55-59)
12
Page
141 par 38.2 of the answering affidavit
13
Harms
Amlers precedents of pleadings, 7
th
edition page 256
14
Harms
Amlers precedents of pleadings 7
th
edition page 262