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[2013] ZAGPPHC 116
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Groenewald Dreyer v Registrar of Deeds, Pretoria and Others (50537/2012) [2013] ZAGPPHC 116 (16 May 2013)
NORTH
GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 50537/2012
DATE:17/05/2013
In
the matter between:
FREDERICK
CHRISTOFF
GROENEWALD
...........................................................
APPLICANT
DREYER
AND
THE
REGISTRAR OF DEEDS,
PRETORIA
.............................................
FIRST
RESPONDENT
THE
MASTER OF THE NORTH
GAUTENG
.......................................
SECOND
RESPONDENT
HIGH
COURT, PRETORIA
THE
SHERIFF OF THE HIGH
COURT,
......................................................
THIRD
RESPONDENT
POTCHEFSTROOM
NICOLAAS
HJOHANNES
BOSCH
........................................................
FOURTH
RESPONDENT
K.
VAN DER WESTHUIZEN
NO
. …...........................................................
FIFTH
RESPONDENT
K.
VAN NIEKERK NO
.
…..............................................................................
SIXTH
RESPONDENT
JUDGMENT
MAKUMEJ
[1]
In this matter Applicant seeks a declaratory order that he is the
lawful owner of immovable property described as portion 25
(a portion
of portion 1) of the farm Kopjeskraal 517 in the province of
Northwest(the property). The forth Respondent is the only
party who
is opposing the granting of the order.
[2]
The background history leading to this application is set out
hereunder:
2.1.
On the 8th September 2011 the Applicant purchased the property at a
public auction conducted by third respondent pursuant to
a judgment
obtained by ABSA Bank Limited against one Ernest Jacobus
Marais(Marais) under case number 24195/2008.
2.2.
The applicant paid an amount of R1020 000.00 (one million twenty
thousand rand) for the property.
2.3.
On the 27th September 2011 the estate of Marais was placed under
provisional sequestration and on the 2nd November 2011 Marais
was
finally sequestrated. The applicant in the sequestration of Marais
was the Fourth Respondent who was one of Marais' creditors.
2.4.
On the 17th November 2011 the First Respondent effected transfer of
the property into the name of the Applicant at the instance
of the
Third Respondent.
2.5.
On the 29th November 2011 the Fourth Respondent brought an urgent
application in this court under case number 66570/2011 for
an order
interdicting the Applicant from alienating or encumbering or
effecting improvements to the property pending the setting
aside of
the transfer of the property.
2.6.
The urgent application was settled when a Draft Order was made an
order of court which Court Order read as follows;
(a)
It is recorded that First Respondent does not concede that applicant
has the necessary locus standi to bring this application.
(b)
First Respondent is interdicted from encumbering, alienating or
registering any transfer of ownership of his rights, title and
interest in the immovable property known as Gedeelte 25(GVGI) van die
plaas Kopjeskraal 517. IQ (the immovable property) pending
the
appointment of a trustee by the Fourth Respondent in the insolvent
estate of Ernest Jacobus Marais and the making of a decision
by the
said trustees in respect of the appropriate action to be taken with
regard to the immovable property.
(c)
The Third Respondent is interdicted from registering any transfer of
ownership encumberance or alienation of any right title
and interest
in the immovable property known as Gedeelte 25 (GVG1) van die plaas
Kopjeskraal 517 IQ pending the appointment of
a trustee by the Fourth
Respondent in the insolvent estate of Ernest Jacobus Marais and the
making of a decision by the said trustee
in respect of the
appropriate action to be taken with regard to the immovable property.
(d)
The costs of the application be costs in the sequestration of Ernest
Jacobus Marais.
2.7.
On the 15th February 2012 the Second Respondent appointed the Fifth
and the Sixth Respondents as joint provisional trustees
in the
insolvent estate of Marais.
2.8.
On the 1st August 2012 the Fifth and Sixth Respondents made a
decision in respect of an appropriate action regarding the property
by informing the applicant's attorneys that seeing that it is only
the Fourth Respondent amongst all the creditors
who
is objecting to the transfer of the property to the applicant that
the Applicant should proceed to apply for a declaratory order
from
this court. That this Court should determine whether ownership of the
property resides within the insolvent estate of Marais
despite its
sale to the Applicant.
2.9.
Pursuant to that letter from the Fifth and Sixth Respondents in their
capacities as joint trustees of the insolvent estate
Marais the
Applicant launched the present application.
THE
EFFECT OF THE SALE IN EXECUTION ON THE 8th OF SEPTEMBER 2011
[3]
As 1 understand it the Fourth Respondent contends that the sale in
execution was irregular for want of compliance with Rule
46(3) which
requires that the notice of attachment must be served on the
Respondent by registered post. The Fourth Respondent has
referred the
Court to the decision of Joosub v J.J SA (PTY) Ltd (now known as
Construction and Special Equipment Co pty Ltd and
Other 1992(2) SA
665(N). That matter is distinguishable from the present matter in
that not only was it a matter decided on exception
but it is clear as
appears on page 673 where the Honourable McCall AJ says the
following:
"
It must be accepted for the purpose of this exception, that when the
deputy sheriff issued returns of service in respect
of each of the
properties, stating that he had on 18 August 1986 attached them he
had not in fact served notices of attachment
on the owner of the
property that is the plaintiff in the present action or on the
Registrar.
[4]
In the present matter the notice of attachment on page ninety of the
papers indicates that on the 27th February 2009 the Sherriff
served
the notice of attachment by Registered post on the Registrar of
Deeds, the occupier and on the owner Mr E J Marais by registered
post. I am of the view that the requirements of Rule 46(3) were fully
complied with.
[5]
On the 18th August 2011 more than 2 years since the property was
placed under attachment the Sherriff once more served a notice
of
sale by affixing the notice to the main entrance of the property. In
that notice the debtor and the general body of interested
purchasers
were informed that the immovable property described therein would be
sold by public auction to the highest bidder on
the 8th of September
2011. Despite the publication of that notice the debtor and the
Fourth Respondent took no steps to find fault
with the process being
followed.
[6]
The Fourth Respondent for the first time now finds fault with the
description of the property sold. He did not raise this issues
when
he interdicted the Applicant during March 2012.
[7]
The primary purpose of Rule 46(7)(b) is to inform the public what is
being sold, the object being to attract bidders to realise
as high a
price as possible for the property. In the matter of Hopkins Boerdery
(Edms) BPK v Colyn 2006(1) ALL SA 496C the court
dealt with what
constitutes short description and differentiated between farmland and
other land. It was held that in respect of
farmland a mere title deed
description of the property in the notice of sale is adequate and
complies with the provisions of the
subrule.
[8]
In the Hopkins matter (supra) Van Zyl J quoted and referred with
approval the decision of Eloff J in the matter of First Consolidated
Leasing Corporation Ltd v
Theron
and Others 1974(4) SA 244(T) at page 246 D-F wherein the following
was said:
"
I do not think that this reasoning applies to farm property such as
that with which we are concerned in this case. To begin
with there is
no suggestion that the description so far as it goes is a
misdescription. In addition while the mere reference to
the Deeds
Office description in Pillay's case might convey to a potential
purchaser that it is unimproved the description of the
farm in the
present case is not in my view, such as to convey to a reader of the
advertisement that the farm is lacking in attributes
such as trees,
crops, fencing or other features frequently found in farms. I am
certainly not persuaded that the reference to a
farm in the
advertisement without a description of enhancing attributes conveys
that there are probably no such attributes. And
I think that if the
Deputy Sherriff were to be put to the task of listing all that there
is on the farm, he would have great difficulty
in deciding what to
mention and what to omit. I do not think that the draftsman of the
Rules contemplated that be done."
[9]
In the present matter what was advertised is clearly farmland and I
am satisfied that the description was sufficient to attract
those
members of the public who have interest in acquiring such land. It
must be remembered that sale of farm land and sale of
urban
residential land or property will attract different markets. The mere
fact that the notice gives details of the title deed
number and where
the property is situated is sufficient for purposes of Rule 46(7)(b).
The fourth Respondent has failed to demonstrate
how a more detailed
description would have attracted more people than were present at the
sale in execution.
[10]
The next aspect raised by the Fourth Respondent in opposing this
application appears in paragraph 8-11 of his founding affidavit.
Therein the first respondent queries the sale price of the property
and says that if the sale in execution that took place on the
8th of
September 2011 is allowed to stand then it will not be in the
interests of the general body of the creditors of the insolvent
estate Marais. The Fourth Respondent says that if the property is
again re-advertised for sale by public auction it will be marketed
and would easily fetch a price of R3 million.
[11]
The Fourth Respondent does not tell the Court how and who will do the
marketing of the intended resale by public auction. It
is safe to say
that he is speculating and has not provided any hard facts to support
his contention. This speculation is indeed
at the core of his
opposition to applicant's case.
[12]
What the Fourth Respondent forgets is that when the sale took place
there was no sequestration pending. The asset belonged
to Mr Marais
who had received sufficient notice of the sale and if he wanted the
property to be taken into consideration in his
insolvent estate he
would have taken steps to interdict the Sheriff from proceeding with
the sale in execution pending the appointment
of trustees, this he
did not do. Accordingly
section 20(1)(C)
of the
Insolvency Act 34 of
1936
has no application.
[13]
In terms of
Rule 46(13)
it is incumbent on the Sherriff who conducts
a sale in execution to give transfer to the purchaser against payment
of the purchase
money and upon performance of the conditions of sale.
This section read with
section 5(1)
of the
Insolvency Act 24 of 1936
makes it lawful to transfer property which became advertised for
surrender in terms of the
Insolvency Act if
at the time of said sale
the execution creditor did not know of the said surrender.
[14]
This situation arose in a number of cases referred to in the
Applicants' heads of arguments namely Gibson N.O v ISCOR Housing
Utility CO. Ltd and Others 1963(3) SA 783 TPD, WSM Transport Pty Ltd
v De Villiers 1977(1) SA 564 OPD; S Ramgobin and Two Others
v ABSA
Bank Limited (Unreported Durban and Coastal Local Division case
number 13807/2007 delivered on the 21 July 2008; EDKINS
v Registrar
of Deeds Johannesburg and Others (Unreported judgment by Moshidi J in
the South Gauteng High Court case number 16117/11
delivered on 9th
March 2012.
[15]
The facts in the last mentioned case that of Edkins are perhaps
similar to the facts in the present matter. In that matter
after the
sale in execution and before transfer the debtor surrendered her
estate and published a notice to that effect in accordance
with
section 4(1)
of the
Insolvency Act. The
joint trustees were appointed
immediately thereafter. When the sheriff submitted documents to the
Deeds Office requesting transfer
of the immovable property that he
had sold to the Applicant at an auction the Registrar declined to do
so and referred the Sherriff
to a directive of the Deeds Office being
Resolution 54/2009 which reads and it formulates in question and
answer form.
"//
property was sold in execution and debtor is sequestrated after such
sale, does the sequestration prevent the Sherriff
from transferring
the property to the purchaser of the sale in execution ?"
Resolution:
yes
[16]
When the joint trustees when appointed they immediately took a
decision and informed all concerned that they have elected not
to
transfer the immovable property into the purchaser's name. Moshidi J
dealt with the legal principle applicable in such transfer
commencing
with
Rule 46(13)
to which I have already made reference to earlier
on. He reached the conclusion that the Registration of Deeds
Conference Resolution
54/2009 has no binding legal effect it is at
most a guideline. The views of the Registrar cannot supercedes a
Court's function
and discretion.
[17]
The learned Judge concluded by saying that in terms of
section 5(1)
of the
Insolvency Act provision
is made that in the event that the
sale in execution takes place before the publication of the notice of
voluntary surrender the
transfer of the property can itself take
place. The publication of the notice can therefore effectively stop a
sale in execution
that has not taken place but not the transfer of
the property after the sale had taken place.
[18]
In the present matter
Section 4(1)
does not come into operation
because Marais did not surrender his estate voluntarily. His
sequestration was brought about by an
application at the instance of
his creditor being the Fourth Respondent.
[19]
The last aspect raised by the Fourth Respondent is the non-joinder of
the debtor Mr Marais in the application. Fourth Respondent
contends
that Marais has a material interest in the outcome of the matter.
[20]
It is not denied that Marais has an interest in the outcome of the
matter. However his interests are taken care of by the trustees
namely the Fifth and Sixth Respondent. Mr Marais' estate having been
placed under sequestration renders him unsuitable to take
part in
legal proceedings hence the appointment of the trustee.
[21]
In the matter of Van Aardt v Hartley's Trustee
(1845) 2 Menzies 135.
Hartley before insolvency sold his rights under a deed of sale of
immovable property to a third person before transfer in his name.
Hartley went insolvent before transfer was given either to him or to
the purchaser. It was held that in his case the purchaser
was
entitled to transfer of the property by the trustee to himself.
[22]
In the present matter the insolvent Mr Marais knew very well about
the attachment and the imminent sale in execution on the
other hand
neither the Sheriff nor the Applicant were aware that during the
period between the sale of the property and the transfer
thereto that
Marais estate had been placed under sequestration. The purchaser
being the applicant as well as the Sherriff the Third
Respondent
acted in goodfaith. See Gibson NO v ISCOR Housing Utility Co and
Others 1963{3) SA 783 T at 787-A-B.
[23]
In conclusion, I am of the view that the Applicant has succeeded to
prove on a balance of probabilities that he is entitled
to the
immovable property described as portion 25 (a portion of portion 1)
of the farm Kopjeskraal 517 Registration Division l.Q,
Province of
Northwest extent 10, 9879 hectares held by Applicant under Deeds of
Transfer T82133/2011.
[24]
There is also no compelling reason why costs should not follow the
result.
ORDER
[25]
In the result the following order is made :
(i)
The Applicant is declared the lawful owner of the immovable property
portion 25 (a portion of portion 1) of the farm Kopjeskraal
517
Registration Division l.Q Province of Northwest extent 10, 9879
hectares held by Applicant under Deeds of Transfer T82133/2011.
(ii)
The Fourth Respondent is ordered to pay the taxed party and party
costs of this application.
Dated
at Pretoria on this the 14th day of May 2013.
MAKUMEJ
(JUDGE
OF THE HIGH COURT)