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[2013] ZAGPPHC 27
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Harding NO and Others v M C Denneboom Service Station CC and Others (11250/2012) [2013] ZAGPPHC 27 (6 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
No. 11250/2012
DATE:06/02/2013
In
the matter of-
and
CYNTHIA
HARDING
N.O.
..............................................................
First
Excipient /First Defendant
MOLEFE
PHAYANE N.O.
..................................................
Second
Excipient /Second Defendant
MASTER
OF THE HIGH COURT,
PRETORIA
................................................................................................................
Third
Defendant
REGISTRAR
OF DEEDS,
PRTORIA
...................................................................
Fourth
Defendant
SOUTHERN
AFRICA ENERGY
COMPANY
LTD
........................................................................................................
Fifth Defendant
and
M
C DENNEBOOM SERVICE
STATION
CC
…...................................................................
First
Respondent / First Plaintiff
NOLA
ELLISON CHILOANE
............................................
Second
Respondent / Second Plaintiff
JUDGMENT
Van
der Byl AJ:-
[1
] This is an exception taken by the First and Second Defendants to
the Plaintiffs’ Particulars of Claim.
[2]
As is apparent from the Particulars of
Claim the Plaintiffs claim, in addition to the usual order of costs
(prayer5), an order,
inter alia -
(a)
declaring that the First Plaintiff is
the lawful owner of the property known as Erf 22104 Mamelodi (prayer
2);
(b)
declaring a deed of sale entered into
between the First and Second Defendants to be null and void (prayer
3);
(c)
directing the Fourth Defendant to
transfer the aforesaid property into the name of the First Plaintiff
(prayer 4).
[3]
The claim is based on allegations that
the Second Plaintiff in his capacity as agent of a close corporation
yet to be formed at
the stage, concluded an agreement with Mobil Oil
Southern Africa (Pty) Ltd (succeeded by Engen) on 12 December 1989 in
terms of
which Engen lent the close corporation yet to be formed, R1
315 000 to acquire the property known as Erf 22104 Mamelodi ("the
property
1
'),
to develop and equip a garage petrol filling and service station and
erect a building or buildings on the property.
[4]
The agreement, furthermore, provided -
(a)
that the Second Plaintiff warranted that
the property in question had been allocated to him by the local
authority;
(b)
that he would take all steps necessary
for the certificate of registered leasehold to be registered in his
name as soon as possible;
(c)
that before that certificate is
registered he would ensure that the close corporation be formed
(which close corporation was eventually
formed on 29 November 1990
and which is cited in this matter as the First Plaintiff;
(d)
that he would procure the ratification
of the agreement by the First Plaintiff;
(e)
that he would enter into an agreement in
terms of which the First Plaintiff would acquire the leasehold rights
to the property for
a price equal to the fair market value of the
property;
(f)
that the property would be transferred
to the First Plaintiff;
(g)
that on the date of the registration of
a mortgage bond over the property in Engen’s favour the First
Plaintiff would alone
be entitled to occupy the property;
(h)
that as security for the loan the First
Plaintiff would pass a first and second mortgage bond over the
property;
(i)
that Engen would lease the property from the First Plaintiff for a
period of 10 years.
[5]
As is, furthermore, apparent from the
Particulars of Claim -
(a)
the Second Plaintiff and his late wife
to whom he was married in community of property acquired the
leasehold rights on 7 September
1990 (para 10 of the Particulars of
Claim);
(b)
the leasehold rights were converted into
property rights in terms of the Conversion of certain Rights of
Leasehold Act, 1988 (Act
81 of 1988) (“the Act) (para 17 of the
Particulars of Claim).
[6]
It is, furthermore, averred that the
First Plaintiff ratified the agreement concluded between the Second
Plaintiff and Engen, whereupon,
the First Plaintiff and the Second
Plaintiff concluded an agreement in terms of which the First
Plaintiff acquired the leasehold
rights over the property from the
Second Plaintiff and his late wife and Engen loaned the amount to the
First Plaintiff which moneys
were utilised to erect a garage and
service station.
[7]
It would appear that the leasehold
rights were never registered in the name of either the First
Plaintiff and his late wife or the
First Plaintiff.
[8]
The Second Plaintiff was sequestrated
during September 1992.
[9]
The First Defendant who was appointed as
trustee of the Second Plaintiffs insolvent estate sold the property
to the Second Defendant
on 27 October 2009 as an asset in the
insolvent estate of the Second Plaintiff.
[10]
It is on these facts now contended by
the Plaintiffs that the property should never have been included in
the estate of the Second
Plaintiff as the First Plaintiff was the
lawful owner of the property, hence the relief claimed in the
Particulars of Claim.
[11]
The First and Second Defendants have now
noted an exception against the Plaintiffs’ Particulars of Claim
on the grounds thereof
that the Plaintiffs failed to make allegations
entitling it to the relief claimed in prayers 2, 3, 4 and 5 of the
Particulars Claim
in that -
(a)
the Plaintiffs rely on an incomplete
agreement in that no effect was given thereto in the sense that the
leasehold rights were not
registered in the First Plaintiff’s
name;
(b)
the Plaintiffs failed to allege that the
First Defendant, as appointed curator of the Second Plaintiff’s
estate, elected to
abide by the agreement concluded between the First
and Second Plaintiffs in terms of which the First Plaintiff acquired
the leasehold
rights over the property which rights were converted
into full property rights in terms the Conversion of Certain Rights
of Leasehold
Act, 1988;
(c)
the Plaintiffs are not entitled to exact
specific performance from the First
Defendant,
but only has a concurrent claim for a monetary substitute for
performance by the First Defendant as trustee in the insolvent
estate.
[14]
In the Heads of Argument filed on behalf
of the First and Second Defendants it is in addition submitted that
the Plaintiffs failed
to plead that the Second Plaintiff obtained the
leasehold rights as provided in the provisions of section 4 of the
Conversion of
certain Rights of Leasehold Act, 1988.
[15]
In argument on behalf of the Excepients
(Defendants in the action), the exception was limited to one point
only, namely, that the
Plaintiffs failed to allege that the First
Defendant / Excepient, as appointed curator of the Second Plaintiff’s
estate,
elected to abide by the agreement concluded between the First
and Second Plaintiffs in terms of which the First Plaintiff acquired
the leasehold rights over the property which rights were converted
into full property rights in terms the Conversion of Certain
Rights
of Leasehold Act, 1988.
[16]
On behalf the Plaintiffs -
(a)
I was referred to a notice prepared by
the Plaintiffs in terms of Rule 28(1) (then handed to me from the
bar) in terms of which
an amended is sought to address the exception
in so far as it relates to the one point raised on behalf of the
Applicant; and
(b)
it was submitted that by having filed
that notice the Plaintiffs in effect conceded the exception so raised
and that the only issue
that remains was the question of costs.
[17]
It would seem that the parties were in
agreement that the exception be upheld to that extent, but disagreed
whether the Excepients
are entitled to costs up to the date of the
hearing of this application or to 19 December 2012, being the date on
which the notice
purports to have been served or 18 January 2013,
being the date on which receipt of the notice was actually
acknowledged by the
Excepients attorney of record.
[18]
It appears from the papers submitted to
me and the submissions made in argument -
(a)
that it was not possible to serve the
notice in the ordinary way because the offices of the Excepients’
attorneys were at
the time already closed for the seasonable
holidays, whereupon, a copy of the notice was left in their postbox
and also faxed to
their offices;
(b)
that, when their offices opened and on
having seen the faxed notice, the Excepients’ attorneys
addressed a letter to the Plaintiffs’
attorneys on 14 January
2013 informing them that the sending of pleadings by way of fax is
not a valid form of service and that
they insist that the notice be
properly served;
(c)
that the notice was, thereupon, served
in the normal way on 18 January 2013;
(d)
that, when requested by a letter addressed to the Excepients’
attorneys on 21 January 2013 to indicate what the Excepients
intend
to do, the Excepients’ attorney indicated that the intended
amendment does not remove their objections and that the
matter will
not be removed from the roll.
[19]
The difficulties arising from this
unfortunate state of affairs have caused difficulties to the parties
on both sides which could
have in my view easily and amicably been
resolved between the parties.
[20]
Should it be held that the notice was
properly served (or, as the Rules provide, delivered) to the
Excepients’ attorneys,
the Excepients were bound to have filed
an objection within 10 days as from the date of delivery of the
notice and, in so far as
no objection was so delivered, Plaintiffs
were bound to deliver the amended pages within 10 days from the date
on which the 10
days for objection have expired whereafter the
Plaintiffs were not entitled to effect the amendment unless the court
otherwise
directs.
[21]
The Plaintiffs failed to effect the
intended amendment before or on 18 January 2013, being the date on
which the required 10 days
expired.
[22]
The Excepients failed to file any
objection before or on 4 January 2013 being the date on which the
Excepients’ 10 day period
expired.
[23]
In my view the attitude of the
Excepients’ attorneys to insist on service in the ordinary way
in circumstances where their
offices were closed is, bearing in mind
that
for
purposes of the calculation of any period determined by the Rules
(except in relation to the delivery of notices of intention
to defend
in actions) the period between 16 December and 15 January are not
excluded, unreasonable as the Plaintiffs were entitled
and bound to
deliver the notice to their offices.
[24]
However, the Excepients were entitled to
proceed with their exception, but there is no reason why they should
be entitled to costs
until the date of the hearing of this matter as
the exception was in effect conceded on 19 December 2012 when the
notice was served.
[25]
In the
result I make the following order:-
1.
THAT the
First and Second Defendants’ exception is upheld in so far it
relates to the contention that the Plaintiffs failed
to allege that
the First Defendant, as appointed curator of the Second Plaintiffs
estate, elected to abide by the agreement concluded
between the First
and Second Plaintiffs in terms of which the First Plaintiff acquired
the leasehold rights over the property which
rights were converted
into full property rights in terms the Conversion of Certain Rights
of Leasehold Act, 1988.
2.
THAT the Plaintiffs be ordered to pay
the First and Second Defendants’ costs up to an including I9
December 2012.
PC
van der Byl
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE FIRST AND SECOND
DEFENDANTS
I
EXCIPIENTS:
ADV M A BADENHORST SC
ADV
J DE BEER
On
the instructions of: MAGDA KETS ATTORNEYS
306
Russel Street Rietondale
PRETORIA Ref: M
Kets/ek/KP0087
Tel
: 012 329 4518
ON
BEHALF OF THE PLAINTIFFS: ADV G JACOBS
On
the instructions of :BERTUS VERSTER ATTORNEYS
c/o
CLARINDA KUGEL ATTORNEYS
789 Park Street
Sunnyside
PRETORIA Ref: C130
(012) 662 3571
DATE
OF HEARING: 28 January 2013
JUDGMENT
DELIVERED ON:6 February 2013